Purisima v. McBride ( 2012 )

filED
UNITED STATES DISTRICT COURT
JUN 1 9 2012
FOR THE DISTRICT OF COLUMBIA
Clerk, U.s. District
Courts tor the Dist . & Bankruptcy
net ot Columbia
Anton Purisima, )
)
Plaintiff, )
)
v. ) Civil Action No.
) 12 0990
Andre McBride et al., )
)
Defendants. )
MEMORANDUM OPINION
This matter is before the Court on review of plaintiffs pro se complaint and application
to proceed in forma pauperis. The application will be granted and this action will be dismissed
as time-barred. See 28 U.S.C. § 1915(e)(2)(B) (requiring dismissal "at any time" of a complaint
that fails to state a claim upon which relief may be granted).
Plaintiff, a resident ofNew York, New York, has submitted a complaint for personal
injuries allegedly suffered on June 2, 2008, when plaintiff, while crossing the street in the
District of Columbia, was allegedly hit by defendant on a motorcycle. Compl. at 1. The instant
complaint is based on the same events underlying the nearly identical complaint this Court
dismissed on September 15, 2010, for plaintiffs failure to prosecute. See Compl., Purisima v.
McBride, 09-cv-1 065 (RMU).
Under District of Columbia law, a personal injury action must be brought within one or
three years of its accrual, depending on the facts ofthe case. See D.C. Code§ 12-301(4), (8).
Referring to the dismissed complaint, plaintiff states that "[t]his case is timely filed due to the
underlying case was filed on June 1, 2009 within one (1) year from the incident on June 2,
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2008." 1 Compl. ~ 6. But "under District of Columbia law, the pendency of an action
involuntarily dismissed [with or] without prejudice does not operate to toll the running ofthe
statute oflimitations." Dupree v. Jefferson, 666 F.2d 606,611 (D.C. Cir. 1981); see accord
Me lara v. China North Industries, Corp., 658 F. Supp. 2d 178, 181 (D.D.C. 2009) ("plaintiff
cannot assert an equitable tolling defense based on the timely filing of a claim that was later
dismissed without prejudice"). Since "the outermost limit" under the District's statute of
limitations was three years from plaintiffs accrual date of June 2, 2008, Dupree, 666 F.2d at 611,
the instant complaint received more than four years later on June 4, 2012, comes too late. See id.("In the case at bar, whatever the limitation period applicable, it was not arrested during
pendency of appellant's first action which was involuntarily dismissed without prejudice for want
of prosecution.") A separate Order of dismissal accompanies this Memorandum Opinion.
f_(L- SHudL
United States District Judge
Date: June ~ h, 2012
1
Plaintiff also asserts that the limitations period was "tolled in the related social security
case filing ... in U.S.D.C., Southern District ofNew York wherein the incident (motorcycle)
was part of the case therein." Compl. ~ 6. Even if true, this Court is not bound by the rulings of
judges in the Southern District of New York.
2