MUHAMMAD v. CITY OF NEWARK et al, No. 2:2012cv00325 - Document 9 (D.N.J. 2013)
Court Description: OPINION fld. Signed by Judge Claire C. Cecchi on 11/25/13. (sr, )
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY 1 v. OPINION et al., CITY OF Defendants. APPEARANCES: Kwasi Sekou Muhammed 72 South 9th Street Newark, NJ 07107 Petitioner Pro Se CECCHI, District Judge: This matter is before the Court on Plaintiffs motion to re-open this case and file an amended Complaint (Dkt. # 7). Plaintiff has requested appointment of pro bono counsel. Plaintiffs motion to re-open will be granted and the Clerk of the Court will be directed to file the I. BACKGROUND 211 Plaintiff now In and a amended Complaint, the same defendants as in original Complaint. his motion accompanying the amended Complaint, Plaintiff states that he was shot on May 29, 1993, taken to the UMDNJ hospital where a below-the-knee amputation was performed on his left leg as a result of the shooting. Plaintiff was later incarcerated for unrelated offenses. While in the custody of the Department of Corrections, Plaintiff was seen on February 8, 2010 by a doctor at Northern State Prison. During the course of the examination, the doctor asked Plaintiff about the amputation and expressed surprise that the limb was amputated when Plaintiff was 14 years old. Plaintiff asserts that after learning that the shooting occurred in 1993, the doctor "informed Plaintiff that UMDNJ has level one trauma and they and should have had the technology in 1993 to save his limb." to II. STANDARD OF REVIEW 1 1 be ~~~~:.:. ¢:!, or to state a from a defendant who is immune such U.S.C. 1915(e)(2)(B), 191 To survive dismissal "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.' 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."' Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). The plausibility standard "asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief," and will be dismissed. Id. at 678 (citations and internal quotation marks omitted); Fowler 21 I 11 III. DISCUSSION was on a 0 whom Plaintiff had the Plaintiff does not assert knowledge Plaintiff's injuries or the of Rather, Plaintiff appears to argue that equitable tolling should apply here simply because the conversation caused him to question whether his leg could have been saved. Federal courts look to state law to determine the limitations period for § 1983 actions. Wallace v. Kato, 549 U.S. 384, 387-88, 127 S.Ct. 1091, 166 L.Ed.2d 973 (2007) ("Section 1983 provides a federal cause of action, but in several respects relevant here federal law looks to the law of the State in which the cause of action arose. This is so for the length of the statute of limitations[.]"). A complaint under § 1983 is "characterized as a personal injury claim and thus is governed by the applicable state's statute of limitations for personal-injury claims." Dique v. Police, 603 F .3d 181, 185 (3d 1 In 201 0) (citing Cito v. 1 I<Ji'f/frr,.,,,. are statute Police must a to state a " 1993 and thus his claims would have accrued on that date, since he was present at the time and had knowledge of the alleged injuries as they occurred. The applicable two-year statute of limitations would have then expired in May of 1995. Plaintiff's Complaint here was filed substantially out of time. However, Plaintiff argues in his motion that the statute of limitations should be equitably tolled since it was not until his February 8, 2010 conversation with the doctor at Northern State Prison that he became aware of the possibility that his leg could have been saved. New Jersey statutes set forth certain bases for "statutory tolling," see, e.g., N.J.S.A. § 2A:14-21 (detailingtollingbecauseofminorityorinsanity); N.J.S.A. § 2A 14-22 (detailing tolling not 5 " or a or a doctrine it is demanded as In this case, Plaintiff fails to articulate basis for equitable tolling. He has not shown misconduct by any defendants with respect to filing dates of any constitutional claims, nor has he shown any extraordinary circumstances which prevented him from timely filing here. He also has not alleged that he timely asserted his rights through defective pleading or in the wrong forum. Since Plaintiff has not shown that he is entitled to any form of tolling, the amended Complaint will be dismissed without prejudice as untimely. Within forty-five days, Plaintiff may file a motion to reopen and a second amended Complaint addressing any arguments as to why the statute of limitations should not be deemed to have run. IV. CONCLUSION reasons set not run. case as moot. 3
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