United States District Court, D. New Jersey
L. WOLFSON UNITED STATES DISTRICT JUDGE.
Salik Hinton (“Hinton” or
“Plaintiff”), is a state prisoner who is
proceeding pro se with this Complaint asserting
violations of his civil rights under 42 U.S.C. § 1983.
(See Compl., ECF No. 1.) Hinton was granted leave to
proceed in forma pauperis, and the Court now
undertakes a screening of his Complaint pursuant to 28 U.S.C.
§ 1915. For the reasons stated herein, Hinton will be
ordered to show cause why his Complaint should not be
dismissed as facially untimely.
the Prison Litigation Reform Act, Pub. L. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (Apr. 26,
1996) (“PLRA”), district courts must review
prisoner complaints when the prisoner is proceeding in
forma pauperis. See 28 U.S.C. §
1915(e)(2)(B). Hinton alleges that, on February 4, 2016, he
was walking on a sidewalk in Asbury Park, New Jersey, when
officers from the Asbury Park Police Department stopped him
and searched him. (ECF No. 1 at ECF p. 8.) Hinton asserts
that, although the officers found no contraband, they
arrested him under the pretense that he was trespassing.
(Id.) At the police station, Hinton alleges that he
was again searched twice, then subjected to a strip search,
and, ultimately, that defendant officers Joe Leon
(“Leon”) and Ja'von Britt
(“Britt”) held his arms while defendant Sergeant
Kamil Warraich (“Warraich”) “placed
Plaintiff in a choke hold with one arm while he used the five
fingers of his other hand to sexually assault Plaintiff by
digging into his rectum.” (Id. at ECF pp. 8-9
(capitalization rectified).) Hinton explains that he was
released from custody the same day, and went to a hospital
emergency room for treatment of rectal and neck pain.
(Id. at ECF pp. 9-10.)
also asserts that, the following day, he registered a
complaint regarding the incident with the police
department's Office of Professional Standards and
Accountability. (Id. at ECF p. 10.) He alleges that
the departmental investigation ultimately concluded that
there was “sufficient evidence to prove the allegation
of an improper search, and the actions of the officers
violated a provision of the agency's rules and
regulations or procedures.” (Id. at ECF p. 11
(capitalization rectified).) Hinton contends that, on May 30,
2016, he was again arrested by defendants Warraich and Leon
while he was sitting on the steps of a family member's
residence. (Id. at ECF pp. 10-11.) Hinton seeks to
assert claims under 42 U.S.C. § 1983 against Warraich,
Leon, and Britt for false arrest, false imprisonment,
malicious prosecution, unlawful search, excessive force,
sexual assault, abuse of process, cruel and unusual
punishment, and retaliation. (See Id. at ECF pp.
13-17.) He further seeks to hold the Asbury Park Police
Department responsible under a theory of Monell
liability. (Id. at ECF p. 17.)
PLRA directs district courts to sua sponte dismiss
claims that are frivolous or malicious, that fail to state a
claim upon which relief may be granted, or that seek monetary
relief from a defendant who is immune from such relief.
See 28 U.S.C. §§ 1915(e)(2)(B). “The
legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)
is the same as that for dismissing a complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6).” Schreane
v. Seana, 506 Fed.Appx. 120, 122 (3d Cir. 2012). That
standard is set forth in Ashcroft v. Iqbal, 556 U.S.
662 (2009), and Bell Atlantic Corp. v. Twombly, 550
U.S. 544 (2007). To survive the Court's screening for
failure to state a claim, the complaint must allege
“sufficient factual matter to show that the claim is
facially plausible.” Fowler v. UPMC Shadyside,
578 F.3d 203, 210 (3d Cir. 2009) (internal quotation marks
omitted). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678; see also Fair Wind Sailing, Inc. v.
Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014). “A
pleading that offers ‘labels and conclusions' or
‘a formulaic recitation of the elements of a cause of
action will not do.'” Iqbal, 556 U.S. at
678 (quoting Twombly, 550 U.S. at 555).
se pleadings, as always, will be liberally construed.
See Haines v. Kerner, 404 U.S. 519, 520 (1972);
Glunk v. Noone, 689 Fed.Appx. 137, 139 (3d Cir.
2017). Nevertheless, “pro se litigants still must
allege sufficient facts in their complaints to support a
claim.” Mala v. Crown Bay Marina, Inc., 704
F.3d 239, 245 (3d Cir. 2013).
the Court first assesses the timeliness of Hinton's
Complaint. “Although the running of the statute of
limitations is ordinarily an affirmative defense, where that
defense is obvious from the face of the complaint and no
development of the record is necessary, a court may dismiss a
time-barred complaint sua sponte under 28 U.S.C.
§ 1915(e)(2)(B)(ii) for failure to state a claim.”
Ostuni v. Wa Wa's Mart, 532 Fed.Appx. 110,
111-12 (3d Cir. 2013); see also Hunterson v.
Disabato, 244 Fed.Appx. 455, 457 (3d Cir. 2007)
(“[A] district court may sua sponte dismiss a
claim as time-barred under 28 U.S.C. § 1915A(b)(1) where
it is apparent from the complaint that the applicable statute
of limitations has run.”). Causes of action under 42
U.S.C. § 1983 are subject to the same two-year statute
of limitations as claims for other personal injuries under
New Jersey state law. See Patyrak v. Apgar, 511
Fed.Appx. 193, 195 (3d Cir. 2013) (citing Dique v. N.J.
State Police, 603 F.3d 181, 185 (3d Cir. 2010));
Evans v. Gloucester Twp., 124 F.Supp.3d 340, 349
(D.N.J. 2015) (citing Pittman v. Metuchen Police
Dep't, 441 Fed.Appx. 826, 828 (3d Cir. 2011)).
claims appear to be untimely from the face of the Complaint.
He alleges that the bulk of the underlying acts and harm
occurred on February 4, 2016, and that a potentially
retaliatory arrest occurred on May 30, 2016. (See
ECF No. 1.) Therefore, the two-year limitations periods for
his claims ended, respectively, as of February 4, 2018, and
May 30, 2018. The Complaint, dated November 2, 2018, was
received by the Clerk's Office on November 7, 2018.
(See ECF No. 1.) Even giving Hinton the benefit of
the “prison mailbox rule, ” see Houston v.
Lack, 487 U.S. 266, 270-71 (1988),  it is clear he
did not file his Complaint until more than five months after
the expiration of the latest limitations period. Thus, the
Complaint is facially untimely.
cover letter to his Complaint, Hinton wrote,
Plaintiff also asks the Court to consider the fact that a
civil lawyer had agreed to take on this case however
circumstances beyond my control, resulted in this attorney
recently informing me that he is no longer able to handle the
case. Plaintiff is willing to put in detail the circumstances
that ca[u]se this filing to be a few week[s] late of the
No. 1-1 (capitalization rectified).) This request seems to
implicate the doctrine of equitable tolling, which, under New
Jersey law, may arise
where ‘the complainant has been induced or tricked by
his adversary's misconduct into allowing the deadline to
pass,' or where a plaintiff has ‘in some
extraordinary way' been prevented from asserting his
rights, or where a plaintiff has timely asserted his rights
mistakenly by either defective pleading or in the wrong
Cason v. Arie Street Police Dep't, Civ. No.
10-497 (KSH), 2010 WL 2674399, at *5 n.4 (D.N.J. June 29,
2010) (quoting Freeman v. State, 788 A.2d 867,
879-80 ( N.J.Super.Ct.App.Div. 2002)). The Court of Appeals
for the Third Circuit has noted that “‘[a]
petitioner seeking equitable tolling bears the burden to show
that he diligently pursued his rights and that some
extraordinary circumstances stood in [the] way.'”
Hanani v. N.J. Dep't of Evnt'l Protection,
205 Fed.Appx. 71, 77 (3d Cir. 2006) (quoting Satterfield
v. Johnson, 434 F.3d 185, 188 (3d Cir. 2006)). The vague
statement in Hinton's cover letter that circumstances
beyond his control caused his attorney to withdraw does not
suffice to justify a grant of equitable tolling. I will,
however, permit Hinton an opportunity to expand upon this
point by ordering him to show cause, within 45 days, why his
case should not be dismissed as facially untimely.
reasons explained above, upon screening the Complaint, the
Court orders Hinton to show cause within 45 days why his
Complaint should not be ...