MCKINNEY v. LANIGAN

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY _________________________________________ IVAN G. MCKINNEY, : : Plaintiff, : Civ. No. 18-8618 (FLW) : v. : : GARY LANIGAN, et al., : MEMORANDUM OPINION : Defendants. : _________________________________________ : This matter has been opened to the Court by Plaintiff Ivan McKinney’s (“McKinney” or “Plaintiff”) response to the Court’s Order to Show Cause requiring him to show cause as to why his Complaint should not be dismissed in part as untimely, and by his letter motion docketed on June 4, 2021. See ECF Nos. 19, 22. Having considered Plaintiff’s submissions, and for the reasons explained below, the Court denies without prejudice Plaintiff’s letter motion seeking to proceed on the Complaint, and dismisses without prejudice the federal claims brought pursuant to 42 U.S.C. § 1983 under § 1915(e) as untimely. The Court also declines supplemental jurisdiction over the state law claims and administratively terminates this matter at this time. To the extent Plaintiff can provide sufficient facts to support equitable tolling of his federal claims, he may submit a Verified Amended Complaint and a motion to reopen within 45 days in accordance with this Memorandum Opinion. Otherwise, this matter shall be dismissed with prejudice as untimely and closed accordingly.

I. FACTUAL BACKGROUND As recounted in the Court’s prior opinion, McKinney is a state prisoner at New Jersey State Prison and a frequent filer in this District. The claims in this action arise entirely from McKinney’s transportation by van between corrections facilities on November 10, 2015. See ECF No. 1. McKinney alleges that corrections officers subjected him, as well as other prisoners in the van, to a lack of ventilation, denied his requests to use the restroom despite having been in the van for hours, and gave him a “rough ride,” by erratically maneuvering the van while he did not have a seatbelt. See id. at 6–15. Plaintiff was injured during the rough ride and required medical treatment. Id. at 7. McKinney alleges that the corrections officers directly involved, as well as Gary Lanigan, then the commissioner of the New Jersey Department of Corrections, and a John Doe supervisory defendant, should be held liable in their individual and official capacities. Id. at 2–17.

Plaintiff’s Complaint was originally docketed on April 23, 2018. See ECF No. 1.

Plaintiff’s cover letter to the Clerk of the Court stated that he is “resubmitting” the Complaint because he never heard back from the Court after sending the same complaint to the Court approximately 13 months prior on March 19, 2017. See ECF No. 1 at 1. The Complaint submitted by McKinney and docketed on April 23, 2018, is backdated to March 1, 2017. See id. at 7. The application to proceed in forma pauperis (“IFP application”) submitted by Plaintiff is signed and dated March 19, 2017, but includes an uncertified account statement for the period from March 21, 2017 – September 21, 2017.1 In response to McKinney’s Complaint and cover letter, the Court issued an Order to Show Cause as to why his claims should not be dismissed as untimely. Plaintiff sought an extension of time to respond, which was granted by the Court. See ECF Nos. 13-17. Plaintiff

II. DISCUSSION At issue is whether the federal claims in Plaintiff’s Complaint are untimely and subject to dismissal under § 1915(e)(2)(B) on that basis. A District Court can raise the issue of the statute of limitations sua sponte at the screening stage. See Hunterson v. Disabato, 532 F. App’x 110, 111-12 (3d Cir. 2007) (“[A] district court may sua sponte dismiss a claim as time-barred under U.S.C. § 1915A(b)(1) where it is apparent from the complaint that the applicable statute of limitations has run.”). As explained in the Court’s prior Opinion, Plaintiff’s civil rights claims are untimely from the face of the Complaint, as it was submitted and received beyond the two- year limitations period for civil rights claims. Prior to dismissing the Complaint, the Court addresses the application of the prisoner mailbox rule, the statute of limitations, and equitable tolling.

1. Prisoner Mailbox Rule Plaintiff’s cover letter to the Clerk of the Court implicates the prisoner mailbox rule because he states that he originally submitted his complaint to prison officials for mailing on March 19, 2017. Plaintiff submitted no less than three Complaints to the District of New Jersey for filing in 2018, and in each case, he wrote to the Clerk of the Court and claimed that he was resubmitting the Complaint because the original complaint was either mishandled by prison officials or lost in the mail. See Civil Act. Nos. 18-309, 18-8618, 18-12987. Although the Court instructed Plaintiff to provide the postage remits for each “lost” complaint, Plaintiff has not provided that documentation. Notably, all of his “resubmitted” Complaints were timely mailed by prison officials, received by the Clerk of the Court, and docketed without issue.

In his response to the Order to Show Cause, Plaintiff states that he is attempting to obtain the postage remits through Open Public Record Act (“OPRA”) requests. He further contends that he handed the original complaint in this action to prison officials for filing on March 19, 2017, and should not be held responsible for whether the mail was sent out or mishandled. He also states that he sometimes encloses documents for different actions in a single envelope. See ECF No. 19-1 at 6-7.

Plaintiff has also submitted a “letter motion” in which he argues that another of his pending cases before this Court, McKinney v. Robinson, Civ. Act. No. 16-4460, supports his claims that his original complaints were never mailed by prison officials. In that matter, the Court denied summary judgment on Plaintiff’s First Amendment legal mail claims due to disputed issues of material fact.2 Plaintiff’s arguments implicate the federal “prisoner mailbox rule,” which provides that a pro se prisoner’s submission is generally deemed filed “at the time [the inmate] delivered it to the prison authorities for forwarding to the court clerk.” Houston v. Lack, 487 U.S. 266, 275–76 (1988). Although the doctrine arose in the context of habeas corpus petitions, the Third Circuit has extended it to civil actions brought under 42 U.S.C. § 1983. See Pearson v. Secretary Dep’t of Corr., 775 F.3d 598, 600 n.2 (3d Cir. 2015) (applying rule in section 1983 action and determining that pro se prisoner plaintiff filed complaint on date he signed it). As noted by this Court in its prior Opinion, the rule applies where a habeas petition or civil complaint is handed to

2. Statute of Limitations & Equitable Tolling While a plaintiff is not required to plead that the claim has been brought within the statute of limitations, Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002), the Supreme Court observed in Jones v. Bock, 549 U.S. 199, 215 (2007), that if the allegations of a complaint, “show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim.” The same principle applies to screening complaints under the PLRA. See Whitenight v. Commonwealth of Pennsylvania State Police, 674 F. App’x. 142, 144 (3d Cir. 2017) (“When screening a complaint under § 1915, a district court may sua sponte dismiss the complaint as untimely under the statute of limitations where the defense is obvious from the complaint and no development of the factual record is required.”); Paluch v. Secretary Pennsylvania Dept. of Corrections, 442 F. App’x. 690, 694 n. 2 (3d Cir. 2011) (“Although the statute of limitations applicable to § 1983 actions is an affirmative defense, which may be waived by the defendant, it is appropriate to dismiss sua sponte under § 1915(e)(2) a complaint whose untimeliness is apparent from the face of the record”); McPherson v. United States, 2010 WL 3446879 at *4 (3d Cir. Sept.2, 2010) (“[W]hen a statute-of-limitations defense is apparent from the face of the complaint, a court may sua sponte dismiss the complaint pursuant to 28 U.S.C. § 1915 or 28 U.S.C. § 1915A”); see also Archie v. City of Newark, No. CIV. 12–3657 FSH, 2012 WL 2476229, at *3 (D.N.J. June 27, 2012) (dismissing complaint as time barred under sua sponte screening authority).

Under New Jersey law, there is a two-year statute of limitations period for personal- injury torts. N.J. Stat. Ann. § 2A:14–2. Because a § 1983 claim is characterized as a personal- injury claim, such claims are governed by the applicable state’s statute of limitations for personal-injury claims. See Wallace v. Kato, 549 U.S. 384, 387 (2007); see also Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989).

The limitation period begins to run on the accrual date, which is governed by federal law.

Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Under federal law, a claim accrues when the facts which support the claim reasonably should have become known to the plaintiff. Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998); Cetel v. Kirwan Fin. Grp.. Inc., 460 F.3d 494, 507 (3d Cir. 2006) (quoting Mathews v. Kidder Peabody & Co., 260 F.3d 239, 252 (3d Cir. 2001)); see also Large v. County of Montgomery, 307 F. App’x. 606, 606 (3d Cir. 2009).

“The determination of the time at which a claim accrues is an objective inquiry; [courts] ask not what the plaintiff actually knew but what a reasonable person should have known.” Kach, 589 F.3d at 634. Importantly, accrual is not tied to whether the potential claimant knew or should have known that the injury constitutes a legal wrong. Giles v. City of Philadelphia, 542 F.

App’x. 121, 123 (3d Cir. 2013) (citing Sandutch v. Muroski, 684 F.2d 252. 254 (3d Cir. 1982)).

Rather, “a cause of action accrues when the fact of injury and its connection to the defendant would be recognized by a reasonable person.” Kriss v. Fayette Cty., 827 F. Supp. 2d 477, 484 (W.D. Pa. 2011) aff’d, 504 F. App’x. 182 (3d Cir. 2012) (emphasis added). Accordingly, “[a]s a general matter, a cause of action accrues at the time of the last event necessary to complete the tort, usually at the time the plaintiff suffers an injury.” Kach, 589 F.3d at 634. Furthermore, “the rule that a cause of action accrues upon discovery of the injury does not require that a plaintiff have identified every party who may be liable on its claim.” Graff v. Kohlman, 28 F. App’x. 151, 154 (3d Cir. 2002) (citing New Castle County v. Halliburton NUS Corp., 111 F.3d 1116, 1125 (3d Cir. 1997)).

McKinney’s § 1983 and tort claims appear to be untimely from the face of the Complaint.

He alleges that all underlying acts and harm occurred on November 10, 2015, when he was transported between facilities by van. See ECF No. 1. Thus, absent tolling, the two-year limitations period for his claims ended as of November 10, 2017. The Complaint was received by the Clerk’s Office over five months after that, on April 23, 2018, and included a cover letter dated April 17, 2018. (See ECF No. 1 at 1.) The Court will give McKinney the benefit of the doubt, as appropriate for a pro se litigant, and assume, under the “mailbox rule,” see Houston, U.S. at 270–71, that he may have given it to prison staff for filing as early as its indicated date, April 17, 2018. Nonetheless, the Complaint is still facially untimely.

It is possible, however, that Plaintiff may have some basis for equitable tolling.5 But supporting facts for tolling must be included in the Complaint. Courts that have considered the issue have found that it is necessary to plead the doctrine or facts in support thereof where the claims are facially untimely. See, e.g., Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 n. 10 (3d Cir. 1994) (reviewing the dismissal of a claim as untimely and stating “[w]e do not apply this doctrine to Oshiver’s failure to hire claim, however, because nowhere in the complaint does Oshiver allege that the law firm misled her, actively or otherwise, with respect to this claim. Accordingly, there is no basis for the application of the equitable tolling doctrine.”); see also Wasco Prods., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 991 (9th Cir.) (stating that

In his letter motion seeking to proceed on his claims, Plaintiff appears to assert for the first time that he is entitled to tolling because he was unable to exhaust his administrative remedies for “months,” and he provides several grievances as exhibits. Plaintiff’s Complaint refers to Defendant Lanigan’s alleged failure to investigate the matter despite Plaintiff’s filing of grievances and letters to the ombudsman, but the Complaint does not include any facts to suggest that he was unable to exhaust his administrative remedies for the incident on November 10, 2015, through prison grievance system. Nevertheless, the Court will permit Plaintiff to submit an Amended Complaint that includes all the facts he has to support equitable tolling with respect to the claims arising from the incident on November 10, 2015.

Within 45 days, Plaintiff may file an Amended Complaint and a motion to reopen this matter if he can provide facts to support equitable tolling. Plaintiff is notified that an amended complaint, once accepted by the Court, replaces the original one. Florida Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 706 n. 2 (1982) (White, J., concurring in part and dissenting in part) (“It is the complaint which defines the nature of an action, and once accepted, an amended complaint replaces the original.”); see also Zrodskey v. Head Classification Officer, Civ. A. No. 3:11cv00283, 2011 WL 5881813, *2 (D.N.J. Nov. 23, 2011) (citing Snyder v. Pasack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002)) (“As a general matter, once an amended complaint is filed, that document replaces all prior complaints.”). As such, Plaintiff must include all allegations related to his underlying claims and the facts supporting equitable tolling in his Amended Complaint. The Court will also require Plaintiff to submit a Verified Amended Complaint and swear to his allegations under penalty of perjury.6 a. The Court Declines Supplemental Jurisdiction Over the State Law Claims Finally, the Court addresses Plaintiff’s potential state law claims.7 Where a district court has original jurisdiction pursuant to 28 U.S.C. § 1331 over federal claims and supplemental jurisdiction over state claims pursuant to 28 U.S.C. § 1367(a), the district court has discretion to decline to exercise supplemental jurisdiction if it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3). It appears Plaintiff is seeking to bring state law

17, 2014) (declining to find jurisdiction pursuant to § 1332 where plaintiffs failed to specifically allege each party’s citizenship). The remaining basis for jurisdiction over the state law claims is supplemental jurisdiction pursuant to 28 U.S.C. § 1367, as explained in this section. tort claims, and the Court declines supplemental jurisdiction at this time, as it has dismissed without prejudice the federal claims on the basis of timeliness.8 III. CONCLUSION Plaintiff’s motion to proceed on his claims is denied without prejudice. See ECF No. 22.

The Complaint is dismissed in its entirety pursuant to the Court’s screening authority under § 1915(e). The § 1983 claims are dismissed without prejudice as untimely, and the Court declines supplemental jurisdiction over the state law claims because it has dismissed the federal claims.

At this time, the Court will administratively terminate this matter and permit Plaintiff to submit an Amended Complaint within 45 days and a motion to reopen this matter in accordance with this Memorandum Opinion. If Plaintiff does not submit an Amended Complaint within 45 days, the Court will enter an Order dismissing this case with prejudice and close this matter accordingly. An appropriate Order follows.

Dated: 12/21/2020

/s/ Freda L. Wolfson Freda L. Wolfson U.S. Chief District Judge