Filed: Jun. 07, 2018
Latest Update: Mar. 03, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-3711 _ LEROY T. MOORE, Appellant v. MIDDLESEX COUNTY PROSECUTORS OFFICE; CARTERET POLICE DEPARTMENT; JOSEPH CELENTANO, individually and in his official capacity; CRAIG MARCHAK; IVAN SCOTT; INVESTIGATOR RODRIGUEZ; MICHAEL DAMMAAN, Carteret Police Officer; LARISSA BERRIOS; LASPINO _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-15-cv-06751) District Judge: Honora
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 16-3711 _ LEROY T. MOORE, Appellant v. MIDDLESEX COUNTY PROSECUTORS OFFICE; CARTERET POLICE DEPARTMENT; JOSEPH CELENTANO, individually and in his official capacity; CRAIG MARCHAK; IVAN SCOTT; INVESTIGATOR RODRIGUEZ; MICHAEL DAMMAAN, Carteret Police Officer; LARISSA BERRIOS; LASPINO _ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-15-cv-06751) District Judge: Honorab..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3711
___________
LEROY T. MOORE,
Appellant
v.
MIDDLESEX COUNTY PROSECUTORS OFFICE; CARTERET
POLICE DEPARTMENT; JOSEPH CELENTANO, individually
and in his official capacity; CRAIG MARCHAK; IVAN SCOTT;
INVESTIGATOR RODRIGUEZ; MICHAEL DAMMAAN,
Carteret Police Officer; LARISSA BERRIOS; LASPINO
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-15-cv-06751)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 23, 2018
Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges
(Opinion Filed: June 7, 2018)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Leroy T. Moore, who is serving a New Jersey state prison sentence, appeals from
the District Court’s final order dismissing his complaint. We will affirm.
I.
This appeal is from the dismissal of the second of two lawsuits that Moore filed
relating to the search of his home and his arrest on August 28, 2009. That search and
arrest led to criminal charges. Moore ultimately pleaded guilty to several of those
charges, including possessing cocaine with the intent to distribute it within 1,000 feet of a
school in violation of N.J. Stat. Ann. § 2C:35-7.1.
Moore filed his first suit in 2011. (D.N.J. Civ. No. 2-11-cv-00281.) He asserted
several claims under 42 U.S.C. § 1983, including a claim of malicious prosecution and a
claim that the August 28 search and arrest were illegal because a detective forged the
warrant. The District Court granted Moore leave to proceed in forma pauperis (“IFP”).
The District Court then dismissed most of Moore’s claims for failure to state a claim, but
it allowed his claim of illegal search and arrest to proceed.
During discovery, the District Court stayed the action pending developments in
Moore’s state-court criminal case. Defendants later filed a motion to lift the stay and for
summary judgment seeking revocation of Moore’s IFP status and the dismissal of the
action on the ground that he had three “strikes” under the Prison Litigation Reform Act.
See 28 U.S.C. § 1915(g). The District Court granted that motion and dismissed the
action by order entered September 19, 2013. The District Court did so without prejudice
to Moore’s ability to refile his complaint after paying the applicable fees. The District
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Court did not provide any deadline for payment. The District Court’s order was
immediately appealable both because it denied Moore IFP status, see Abdul-Akbar v.
McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc), and because the statute of
limitations governing Moore’s last remaining claim had expired as discussed below, see
Brennan v. Kulick,
407 F.3d 603, 606 (3d Cir. 2005). Moore, however, did not appeal.
Instead, approximately 18 months later in 2015, Moore began sending the District
Court letters stating his intention to pay the fees and proceed with his claims. Then, in
July of 2015, almost two years after the District Court dismissed his 2011 action, Moore
notified the District Court that he had paid most of the fees and requested leave to
proceed. In response, the District Court notified Moore that he could file a new
complaint containing his claims after paying the remaining fees. The District Court
warned Moore, however, that his previous claims likely were barred by the statute of
limitations. Moore nevertheless paid the remaining fees and filed a new complaint,
which the District Court docketed as the separate 2015 civil action at issue here.
Moore’s new complaint contained some but not all of the claims he asserted in his
previous complaint. The District Court screened Moore’s complaint pursuant to 28
U.S.C. § 1915A and dismissed all but his malicious prosecution claim under the statute of
limitations. The District Court twice allowed Moore to amend his malicious prosecution
claim before ultimately allowing it to proceed beyond the screening stage. Defendants
later filed a motion to dismiss the malicious prosecution claim under Fed. R. Civ. P.
3
12(b)(6). The Court granted that motion, dismissed Moore’s malicious prosecution claim
for failure to state a claim, and directed its Clerk to close the case. Moore appeals.1
II.
Moore challenges both the dismissal of his malicious prosecution claim for failure
to state a claim and the dismissal of his remaining claims under the statute of limitations.
We address those issues in turn.
A. Malicious Prosecution
Defendant Joseph Celentano filed a criminal complaint against Moore charging
him with committing several crimes on August 28, 2009, including possessing cocaine
with intent to distribute within 1,000 feet of a school. The complaint identified the
school as Nathan Hale Elementary School. Moore was later indicted on the charges
contained in the complaint (and others). The indictment, however, charged Moore with
possessing cocaine on August 28, 2009, within 1,000 feet of a different school, one called
Columbus Elementary School. Following protracted proceedings in state court, Moore
1
We have jurisdiction under 28 U.S.C. § 1291. Our review of dismissals for failure to
state a claim under 28 U.S.C. § 1915A and Rule 12(b)(6) is plenary. See Allah v.
Seiverling, 229 F.3d 220, 223 (2000). To survive dismissal, “a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.” Palakovic v. Wetzel,
854 F.3d 209, 219 (3d Cir. 2017) (quotation marks omitted).
We note that we granted Moore leave to proceed IFP on appeal despite the “three strikes”
provision of 28 U.S.C. § 1915(g). We did so solely on the basis of the record before us
and solely for purposes of this appeal. The District Court’s ruling in Moore’s 2011 action
that he has three strikes is not before us on appeal and, although the District Court again
denied IFP status in this case after Moore already had paid the fees, Moore has not
challenged that ruling. Thus, we express no opinion on the correctness of the District
Court’s ruling that Moore has three strikes.
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ultimately pleaded guilty to that charge (and others) in May 2013.
Moore claims that Celentano maliciously prosecuted him by filing the “Nathan
Hale” charge. One of the elements of a claim of malicious prosecution is that the
criminal proceeding must have terminated in the plaintiff’s favor “in a way that indicates
the innocence of the accused.” Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (en
banc). This element requires termination of a “proceeding,” and it is not satisfied by the
favorable termination of a single charge when a defendant is convicted of others unless
the termination of that charge “indicate[s] the plaintiff’s innocence of the alleged
misconduct underlying the offenses charged” as a whole.
Id. at 188. The District Court
concluded that Moore failed to plausibly allege this element, and we agree.
Moore argues that the proceeding initiated by the complaint terminated in his
favor because he was never indicted on the “Nathan Hale” charge and pleaded guilty to
the “Columbus” charge instead. Moore, however, has not plausibly alleged that the
proceeding as a whole terminated in his favor in a manner indicating his innocence. Both
the criminal complaint and the indictment charged Moore with committing the same
cocaine-related crimes on the same date. The indictment charged possession of cocaine
within 1,000 feet of a different school, but we are aware of no authority suggesting that
the identity of the school is an element of the crime under New Jersey law and at least
one court has concluded that “[t]he elements of the [analogous federal] offense . . . can be
established without reference to the name of the school[.]” See United States v. Landers,
417 F.3d 958, 964 (8th Cir. 2005) (addressing 21 U.S.C. § 860).
5
In any event, Moore’s plea of guilty to possessing cocaine within 1,000 feet of a
school together with other crimes charged in the complaint is not a favorable termination
of the proceeding as a whole. Thus, the District Court properly dismissed this claim.
B. Moore’s Remaining Claims2
The District Court also properly dismissed Moore’s remaining claims as barred by
the statute of limitations. There is no question that these claims were untimely when
Moore filed his 2015 complaint, and Moore does not argue otherwise. The statute of
limitations for § 1983 claims arising in New Jersey is two years. See Dique v. N.J. State
Police, 603 F.3d 181, 185 (3d Cir. 2010). Moore asserted his remaining claims in the
initial complaint that he filed on January 18, 2011, so they obviously had accrued by
then. Thus, the statute of limitations had expired when the District Court dismissed the
2011 action more than two years later on September 19, 2013.
The District Court dismissed the 2011 action without prejudice to Moore’s ability
to proceed by paying the fees, but that dismissal did not serve to toll the statute of
2
Moore filed a premature appeal from the District Court’s order dismissing these claims
on statute of limitations grounds. (C.A. No. 15-3540.) We dismissed that appeal because
Moore’s malicious prosecution claim remained pending in the District Court. Some of
the defendants now argue that we lack jurisdiction to review this order of dismissal
because (1) Moore can seek review of the order only by “reinstating” his previous appeal,
and (2) Moore cannot do so because that appeal was untimely as to the District Court’s
order dismissing the 2011 action. We disagree. Now that the District Court has entered
its final order, Moore’s timely appeal from that order permits him to challenge all
previous orders in this case, including the initial order dismissing these claims on statute
of limitations grounds. See Palakovic, 854 F.3d at 220. Moore does not need to
“reinstate” his previous appeal in order to do so. Nor does the District Court’s
disposition of the 2011 action have any bearing on the timeliness of Moore’s appeal from
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limitations. As we have explained, “[a] statute of limitations is not tolled by the filing of
a complaint subsequently dismissed without prejudice, as the original complaint is treated
as if it never existed.” Brennan, 407 F.3d at 606 (quotation marks omitted). We have
recognized one exception: “when a complaint is filed within the statute of limitations but
is subsequently dismissed without prejudice in an order containing conditions for
reinstatement within a specified time period, the statute of limitations is tolled provided
that the plaintiff meets those conditions.”
Id. at 607 (emphasis added). That requirement
is important because, without it, there would be nothing to “prevent a plaintiff from
indefinitely extending the limitations period.”
Id.
This exception does not apply because the District Court’s order did not provide
for reinstatement within a specific time period. Indeed, this case illustrates the concerns
we raised in Brennan. Moore waited over 18 months following the District Court’s
dismissal of his 2011 action before contacting the District Court again, and he waited
almost two years before beginning to pay the fees and formally requesting reinstatement.
The prospect of such delays is precisely why we require some time limitation in an order
of dismissal before permitting automatic tolling in this context.
There are other potential avenues for relief from the statute of limitations. At the
the disposition of the 2015 action at issue here.
7
Clerk’s direction, the parties have addressed whether there may have been a basis to
equitably toll the statute of limitations or to construe one or more of Moore’s filings as a
motion under Fed. R. Civ. P. 60(b). Neither avenue provides a basis for relief.3
“[E]quitable tolling may be appropriate if a litigant can demonstrate (1) that he has
been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in
his way.” A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 212 (3d Cir.
2014) (quotation marks omitted).
Moore relies on two circumstances, but neither is extraordinary. First, Moore
argues that the District Court should have continued the stay of his 2011 action pending
developments in state court instead of revoking his IFP status and dismissing it. If Moore
wanted relief from that ruling, however, then he could and should have appealed from the
final judgment in his 2011 action. Second, Moore relies on the District Court’s statement
in its opinion supporting the final judgment in the 2011 action that he could “reinstate”
that action by paying the fees (though the District Court’s actual order referred to his
ability to “refile” it). That statement could not have constituted an extraordinary
circumstance because, when the District Court made it in dismissing the 2011 action, the
statute of limitations already had expired and there was nothing left to toll.
Even if these circumstances were extraordinary, however, Moore has raised
3
The District Court did not address these issues, so we ordinarily might remand for the
District Court to do so in the first instance if they warranted further development. Moore
has had an opportunity to address these issues on appeal, however, and he has raised
nothing suggesting that remand might be warranted.
8
nothing suggesting that he acted with reasonable diligence. Moore waited over 18
months after dismissal of the 2011 action before beginning to contact the District Court
again, and he waited almost two years before formally requesting reinstatement and
starting to pay the fees. Moore has never provided any explanation for this delay.
Permitting equitable tolling in this situation would in essence provide Moore with the
very indefinite tolling that we took pains in Brennan to prevent.
We decline to remand for consideration of Rule 60(b) relief for much the same
reason. Moore’s filing-related correspondence consisted of little more than a bare request
to pay the fees and proceed with his claims. Moore provided no explanation for seeking
to do so almost two years later, let alone anything potentially warranting Rule 60(b)
relief. Moreover, before Moore paid the remainder of the fees, the District Court
expressly informed him that he could file a new complaint after paying the remaining
fees but that his original claims would “likely” be barred by the statute of limitations.
Moore nevertheless paid the remaining fees and filed a new complaint. Moore has not
shown any basis for Rule 60(b) relief under these circumstances.
III.
For these reasons, we will affirm the judgment of the District Court.
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