BARNES v. TRENTON POLICE DEPARTMENT, No. 3:2009cv05934 - Document 2 (D.N.J. 2009)
Court Description: OPINION filed. Signed by Judge Joel A. Pisano on 12/1/2009. (mmh)
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NOT FOR PUBLICATION UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY JAMES BARNES, Plaintiff, v. TRENTON POLICE DEPARTMENT, Defendant. : : : : : : : : : : Civil Action No. 09-5934 (JAP) OPINION APPEARANCES: JAMES BARNES, Plaintiff pro se #521714/733533B Northern State Prison 168 Frontage Road Newark, New Jersey 07114 PISANO, District Judge Plaintiff, James Barnes, a convicted state prisoner currently confined at the Northern State Prison in Newark, New Jersey, seeks to bring this action in forma pauperis. Based on plaintiff s affidavit of indigency, and the absence of three qualifying dismissals within 28 U.S.C. § 1915(g), the Court will grant plaintiff s application to proceed in forma pauperis ( IFP ) pursuant to 28 U.S.C. § 1915(a) (1998) and order the Clerk of the Court to file the Complaint. At this time, the Court must review the Complaint, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A, to determine whether it should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may be granted, or because it seeks monetary relief from a defendant who is immune from such relief. For the reasons set forth below, the Court concludes that the Complaint must be dismissed in its entirety. I. BACKGROUND Plaintiff, James Barnes ( Barnes ), brings this civil action against the Trenton Police Department. (Complaint, Caption). The following factual allegations are taken from the Complaint and are accepted for purposes of this screening only. The Court has made no findings as to the veracity of plaintiff s allegations. Barnes alleges that, in 2005, he was arrested by the Trenton Police and transported to the Mercer County Detention Center. During the transport, Barnes was assaulted by several inmates, sustaining a cut that was bleeding profusely. He complains that the officers never stopped the van while the assault occurred, and that one police officer remarked to keep fighting. When they arrived at the Mercer County Detention Center, the nurse would not admit plaintiff due to the seriousness of his injury. The police then transported Barnes to the Trenton Police station where plaintiff waited an hour or so before being taken to the hospital for treatment. Barnes complained that his handcuffs were too tight, but the officers ignored him. bruises and cuts on his arm. 2 The cuffs left Afterwards, Barnes was returned to the Mercer County Detention Center where he asked to see internal affairs to report the incident. Fifteen days later, the Trenton Police Department Internal Affairs came to see plaintiff. Photographs of Barnes injuries were taken, and the Internal Affairs detectives told plaintiff they would conduct an investigation. Barnes was then sent to Trenton State Prison and the detectives recorded plaintiff s rendition of the incident. Barnes asked that assault charges be lodged against the two officers. Barnes complains that the officers never got back to him so that he could file charges. It is not clear from the one-page handwritten Complaint what damages Barnes seeks in this action. II. STANDARDS FOR A SUA SPONTE DISMISSAL The Prison Litigation Reform Act ( PLRA ), Pub. L. No. 104134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996), requires a district court to review a complaint in a civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a governmental employee or entity. The Court is required to identify cognizable claims and to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 1915(e)(2)(B) and 1915A. 28 U.S.C. §§ This action is subject to sua sponte 3 screening for dismissal under both 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, because Smith is a prisoner and is proceeding as an indigent. In determining the sufficiency of a pro se complaint, the Court must be mindful to construe it liberally in favor of the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)(following Estelle v. Gamble, 429 U.S. 97, 106 (1976) and Haines v. Kerner, 404 U.S. 519, 520-21 (1972)). States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). See also United The Court must accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff. Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). The Court need not, however, credit a pro se plaintiff s bald assertions or legal conclusions. Id. A complaint is frivolous if it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989) (interpreting the predecessor of § 1915(e)(2), the former § 1915(d)). The standard for evaluating whether a complaint is frivolous is an objective one. Deutsch v. United States, 67 F.3d 1080, 1086-87 (3d Cir. 1995). A pro se complaint may be dismissed for failure to state a claim only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle 4 him to relief. Haines, 404 U.S. at 521 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). See also Erickson, 551 U.S. at 93-94 (In a pro se prisoner civil rights complaint, the Court reviewed whether the complaint complied with the pleading requirements of Rule 8(a)(2). However, recently, the Supreme Court refined this standard for summary dismissal of a Complaint that fails to state a claim in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). The issue before the Supreme Court was whether Iqbal s civil rights complaint adequately alleged defendants personal involvement in discriminatory decisions regarding Iqbal s treatment during detention at the Metropolitan Detention Center which, if true, violated his constitutional rights. Id. The Court examined Rule 8(a)(2) of the Federal Rules of Civil Procedure which provides that a complaint must contain a short and plain statement of the claim showing that the pleader is entitled to relief. Fed.R.Civ.P. 8(a)(2).1 Citing its recent opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), for the proposition that [a] pleading that offers labels and conclusions' or a formulaic recitation of the elements of a cause of action will not do, Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555), the Supreme Court identified two 1 Rule 8(d)(1) provides that [e]ach allegation must be simple, concise, and direct. No technical form is required. Fed.R.Civ.P. 8(d). 5 working principles underlying the failure to state a claim standard: First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice ... . Rule 8 ... does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n] - that the pleader is entitled to relief. Fed. Rule Civ. Proc. 8(a)(2). Iqbal, 129 S.Ct. at 1949-1950 (citations omitted). The Court further explained that a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausible give rise to an entitlement to relief. Iqbal, 129 S.Ct. at 1950. Thus, to prevent a summary dismissal, civil complaints must now allege sufficient factual matter to show that a claim is facially plausible. This then allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id. at 1948. 6 The Supreme Court s ruling in Iqbal emphasizes that a plaintiff must demonstrate that the allegations of his complaint is plausible. Id. at 1949-50; see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC Shadyside, ___ F.3d ___, 2009 WL 2501662, *4 (3d Cir., Aug. 18, 2009). Consequently, the Third Circuit observed that Iqbal provides the final nail-in-the-coffin for the no set of facts standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957),2 that applied to federal complaints before Twombly. 2501662, *5. Fowler, 2009 WL The Third Circuit now requires that a district court must conduct the two-part analysis set forth in Iqbal when presented with a motion to dismiss: First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint s well-pleaded facts as true, but may disregard any legal conclusions. [Iqbal, 129 S.Ct. at 1949-50]. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a plausible claim for relief. [Id.] In other words, a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to show such an entitlement with its facts. See Phillips, 515 F.3d at 234-35. As the Supreme Court instructed in Iqbal, [w]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show [n] - that the pleader is entitled to relief. Iqbal, [129 S.Ct. at 1949-50]. This plausibility determination will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. Id. 2 In Conley, as stated above, a district court was permitted to summarily dismiss a complaint for failure to state a claim only if it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Id., 355 U.S. at 45-46. Under this no set of facts standard, a complaint could effectively survive a motion to dismiss so long as it contained a bare recitation of the claim s legal elements. 7 Fowler, 2009 WL 2501662, *5. This Court is mindful, however, that the sufficiency of this pro se pleading must be construed liberally in favor of Plaintiff, even after Iqbal. (2007). See Erickson v. Pardus, 551 U.S. 89 Moreover, a court should not dismiss a complaint with prejudice for failure to state a claim without granting leave to amend, unless it finds bad faith, undue delay, prejudice or futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir. 2000). III. SECTION 1983 ACTIONS Barnes brings this action pursuant to 42 U.S.C. § 1983. Section 1983 provides in relevant part: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ... . Thus, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation of a right secured by the Constitution or laws of the United States and, second, that the alleged deprivation was committed or caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 8 IV. ANALYSIS The allegations in the Complaint suggest that Barnes is asserting a claim that the Trenton Police failed to protect him from harm by other inmates while he was being transported to the Mercer County Detention Center, in violation of his constitutional rights.3 The Eighth Amendment, in only three words, imposes the constitutional limitation upon punishments: cruel and unusual. (1981). they cannot be Rhodes v. Chapman, 452 U.S. 337, 345 As noted above, the Eighth Amendment prohibits conditions which involve the unnecessary and wanton infliction of pain or are grossly disproportionate to the severity of the crime warranting imprisonment. Id. at 347. The cruel and unusual punishment standard is not static, but is measured by the evolving standards of decency that mark the progress of a maturing society. 86, 101 (1956)). Id. at 346 (quoting Trop v. Dulles, 356 U.S. To state a claim under the Eighth Amendment, an inmate must satisfy an objective element and a subjective element. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The objective element questions whether the deprivation of a basic human need is sufficiently serious; the subjective component asks whether the officials acted with a sufficiently 3 Barnes also seems to allege that assault charges should have been filed against the officers, but he does not allege any facts to suggest that anyone other than the inmates assaulted him during the transport. 9 culpable state of mind. (1991). Wilson v. Seiter, 501 U.S. 294, 298 The objective component is contextual and responsive to contemporary standards of decency. U.S. 1, 8 (1992). Hudson v. McMillian, 503 The subjective component follows from the principle that only the unnecessary and wanton infliction of pain implicates the Eighth Amendment. See Farmer, 511 U.S. at 834 (quoting Wilson, 501 U.S. at 297 (internal quotation marks, emphasis, and citations omitted)); Rhodes, 452 U.S. at 345. What is necessary to establish an unnecessary and wanton infliction of pain varies also according to the nature of the alleged constitutional violation. Hudson, 503 U.S. at 5. In the context of a failure-to-protect claim, the inmate must show that he is incarcerated under conditions posing a substantial risk of harm, Farmer, 511 U.S. at 833, and that prison officials knew of and disregarded the excessive risk to inmate safety, Id. at 837. A pervasive risk of harm may not ordinarily be shown by pointing to a single incident or isolated incidents, but it may be established by much less than proof of a reign of violence and terror. 147 (3d Cir. 1985). Riley v. Jeffes, 777 F.2d 143, Whether ... prison official[s] had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact finder may conclude that ... prison official[s] knew of a substantial risk from the very fact that the risk was obvious. 10 Farmer, 511 U.S. at 842. Deliberate indifference is more than a mere lack of ordinary due care, however; it is a state of mind equivalent to a reckless disregard of a known risk of harm. Farmer, 511 U.S. at 834. Here, Barnes alleges that defendant police officers witnessed and actually encouraged the assault on plaintiff by other inmates during the transport, without intervening or doing anything to stop the assault. These allegations, if true, may be sufficient, at this early screening stage, to withstand dismissal because the allegations show that defendants were informed, knew, or should have known about plaintiff s exposure to harm from the other inmates, and did nothing to prevent or alleviate plaintiff s exposure to harm. See Nami, 82 F.3d at 67-68; Farmer, 511 U.S. at 842; accord Hamilton v. Leavy, 117 F.3d 742, 747-48 (3d Cir. 1997); Ingalls v. Florio, 968 F. Supp. 193, 199200 (D.N.J. 1997). Accordingly, a failure to protect claim, if alleged, would likely proceed against defendants at this time.4 4 To the extent that Barnes was not a convicted prisoner at the time of the incident, but a pretrial detainee, the Fourteenth Amendment standard is applied. Pretrial detainees retain liberty interests firmly grounded in the Due Process Clause of the Fourteenth Amendment. See Fuentes v. Wagner, 206 F.3d 335, 341 n.9 (3d Cir.), cert. denied, 531 U.S. 821 (2000). Analysis of whether such a detainee has been deprived of liberty without due process is governed by the standards set out by the Supreme Court in Bell v. Wolfish, 441 U.S. 520 (1979). Fuentes, 206 F.3d at 341-42. In evaluating the constitutionality of conditions or restrictions of pretrial detention that implicate only the protection against deprivation of liberty without due process of law, we think that the proper inquiry is whether those conditions amount to punishment of the detainee. For under the Due Process 11 Clause, a detainee may not be punished prior to an adjudication of guilt in accordance with due process of law. ... Not every disability imposed during pretrial detention amounts to punishment in the constitutional sense, however. Once the government has exercised its conceded authority to detain a person pending trial, it obviously is entitled to employ devices that are calculated to effectuate this detention. ... A court must decide whether the disability is imposed for the purpose of punishment or whether it is but an incident of some other legitimate governmental purpose. Absent a showing of an expressed intent to punish on the part of detention facility officials, that determination generally will turn on whether an alternative purpose to which [the restriction] may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned [to it]. Thus, if a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective, it does not, without more, amount to punishment. Conversely, if a restriction or condition is not reasonably related to a legitimate goal--if it is arbitrary or purposeless--a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees. ... 441 U.S. at 535-39 (citations omitted). The Court further explained that the government has legitimate interests that stem from its need to maintain security and order at the detention facility. Restraints that are reasonably related to the institution s interest in maintaining jail security do not, without more, constitute unconstitutional punishment, even if they are discomforting and are restrictions that the detainee would not have experienced had he been released while awaiting trial. 441 U.S. at 540. Retribution and deterrence, however, are not legitimate nonpunitive governmental objectives. 441 U.S. at 539 n.20. Nor are grossly exaggerated responses to genuine security considerations. Id. at 539 n.20, 561-62. Here, Barnes alleges that defendants allowed the attack against plaintiff because they failed to protect plaintiff from harm by other inmates. His allegations may be construed as 12 However, Barnes alleges that the assault occurred in 2005, four years before he filed this action on or about November 23, 2009. Consequently, it appears that this claim is now time- barred. A court may dismiss a complaint for failure to state a claim, based on a time-bar, where the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations. Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978) (citation omitted). Although the statute of limitations is an affirmative defense which may be waived by the defendant, it is appropriate to dismiss sua sponte under 28 U.S.C. § 1915(e)(2) a pro se civil rights claim whose untimeliness is apparent from the face of the Complaint. See, e.g., Jones v. Bock, 549 U.S. 199, 214-15 (2007)(if the allegations of a complaint, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim ); see also Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding, asserting that the transfer was not supervised and conducted in an orderly or secure manner, creating an unsafe environment with a known risk of harm to plaintiff from the other inmates. Moreover, Barnes alleges that the attacks were witnessed by the officers during the transfer, that plaintiff s calls for help were unheeded, and that defendants actually encouraged the fight. Based on these allegations, if true, Barnes may be able to support a claim that these defendants owed a duty to keep plaintiff safe and failed to protect plaintiff from a known harm, disregarding an excessive risk to plaintiff s safety in violation of his Fourteenth Amendment rights. 13 under former § 1915(d) in forma pauperis provisions, that sua sponte dismissal prior to service of an untimely claim is appropriate since such a claim is based on an indisputably meritless legal theory ); Hunterson v. DiSabato, 2007 WL 1771315 (3d Cir.2007)( district court may sua sponte dismiss a claim as time-barred under 28 U.S.C. § 1915(A)(b)(1) where it is apparent from the complaint that the applicable limitations period has run )(citing Jones v. Bock, Pino v. Ryan)(not precedential); Hall v. Geary County Bd. of County Comm rs, 2001 WL 694082 (10th Cir. June 12, 2001) (unpub.) (applying Pino to current § 1915(e)); Rounds v. Baker, 141 F.3d 1170 (8th Cir. 1998)(unpub.); Johnstone v. United States, 980 F. Supp. 148 (E.D. Pa. 1997) (applying Pino to current § 1915(e)). Federal courts look to state law to determine the limitations period for § 1983 actions. U.S. 384, 387-88 (2007). See Wallace v. Kato, 549 Civil rights or constitutional tort claims, such as that presented here, are best characterized as personal injury actions and are governed by the applicable state s statute of limitations for personal injury actions. See Wallace, supra; Jones v. R.R. Donnelley & Sons, 541 U.S. 369, 382 (2004)(federal civil rights claims under §§ 1981, 1982, 1983 and 1985 are subject to the state statute of limitations for personal injury actions); Wilson v. Garcia, 471 U.S. 261, 280 (1985). Accordingly, New Jersey s two-year limitations period on personal injury actions, N.J. Stat. Ann. § 2A:14-2, governs plaintiffs 14 claims under §§ 1983 and 1985. See Montgomery v. DeSimone, 159 F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v. Bridgewater Township Police Dept., 892 F.2d 23, 25 (3d Cir. 1989). Under N.J. Stat. Ann. § 2A:14-2, an action for an injury to the person caused by a wrongful act, neglect, or default must be commenced within two years of accrual of the cause of action. Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987). Unless their full application would defeat the goals of the federal statute at issue, courts should not unravel states interrelated limitations provisions regarding tolling, revival, and questions of application. Wilson v. Garcia, 471 U.S. at 269. Moreover, the accrual date of a § 1983 cause of action is a question of federal law that is not resolved by reference to state law. original). Wallace v. Kato, 549 U.S. at 388 (emphasis in A claim accrues as soon as the injured party knew or had reason to know of the injury that constitutes the basis of his action. 1982). Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. See also Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir. 1994). Plaintiff s actual knowledge is irrelevant. Rather, the question is whether the knowledge was known, or through reasonable diligence, knowable. Moreover, the claim accrues upon knowledge of the actual injury, not that the injury constitutes a legal wrong. Fassnacht v. United States, 1996 WL 41621 (E.D. Pa. Feb. 2, 1996)(citing Oshiver, 38 F.3d at 1386). 15 Here, the assault admittedly occurred in 2005. Barnes also states that he requested an investigation of the incident by the Internal Affairs department and that charges be filed against the defendants. Thus, it is plain from the face of the Complaint that Barnes knew, or had reason to know, in 2005, that he may have a claim against the defendant officers who failed to protect him from the assault. However, Barnes did not file this federal action until November 23, 2009, four years later. Moreover, upon careful review of the Complaint, there is nothing alleged to support an argument that Barnes would be entitled to equitable tolling of the statute of limitations. Any claim that Barnes now alleges concerning a failure to protect violation accrued when the incident occurred in 2005. Barnes alleges no facts or extraordinary circumstances that would permit statutory or equitable tolling under either New Jersey or federal law.5 Nor does Barnes plead ignorance of the law or the fact of 5 New Jersey statutes set forth certain bases for statutory tolling. See, e.g., N.J.S.A. § 2A:14-21 (detailing tolling because of minority or insanity); N.J.S.A. § 2A 14-22 (detailing tolling because of nonresidency of persons liable). New Jersey law permits equitable tolling where the complainant has been induced or tricked by his adversary s misconduct into allowing the filing 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 forum. See Freeman v. State, 347 N.J. Super. 11, 31 (citations omitted), certif. denied, 172 N.J. 178 (2002). However, absent a showing of intentional inducement or trickery by a defendant, the doctrine of equitable tolling should be applied sparingly and only in the rare situation where it is demanded by sound legal principles as well as the interests of justice. Id. When state tolling rules contradict federal law or policy, 16 his confinements (neither excuse being sufficient to relax the statute of limitations bar in this instance) as the basis for delay in bringing suit. Barnes has not offered any explanation for his lack of diligence in pursuing this claim long after it had expired. This omission strongly militates against equitable tolling of the statute of limitations. In fact, plaintiff s only excuse for the untimely filing of this action is based on his complaint that the detectives who were investigating the incident never got back to him. This is wholly insufficient to warrant equitable tolling of the limitations period. Therefore, the Court finds that the § 1983 claim alleging that the Trenton Police Department failed to protect him from harm, in violation of his constitutional rights, is time-barred and must be dismissed with prejudice. V. CONCLUSION Therefore, for the reasons set forth above, the Complaint will be dismissed with prejudice, in its entirety, as against the in certain limited circumstances, federal courts can turn to federal tolling doctrine. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000). Under federal law, equitable tolling is appropriate in three general scenarios: (1) where a defendant actively misleads a plaintiff with respect to her cause of action; (2) where the plaintiff has been prevented from asserting her claim as a result of other extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner but has done so in the wrong forum. Id. n.9. 17 defendant Trenton Police Department, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim because the cause of action is now time-barred. An appropriate order follows. /s/ JOEL A. PISANO JOEL A. PISANO United States District Judge Dated: 12/1/09 18
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