Rami Shalhoub v. James Depreta

DLD-198 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1739
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RAMI SHALHOUB,
Appellant
v.
OFFICER JAMES DEPRETA; RICHARD ZAVINSHY, Chief of Police;
ROCHELLE PARK POLICE DEPARTMENT
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-11-cv-00368)
District Judge: Honorable Jose L. Linares
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Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
May 26, 2011
Before: BARRY, FISHER and ROTH, Circuit Judges.
(Filed: July 21, 2011)
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OPINION
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PER CURIAM
Pro se appellant Rami Shalhoub appeals the District Court’s order dismissing his
complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291 and exercise a plenary
standard of review. Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). For the
reasons set forth below, we will summarily affirm the District Court’s judgment.
Shalhoub filed a civil rights complaint pursuant to 42 U.S.C. § 1983 against the
Rochelle Park Police Department (“the Police Department”); James Depreta, a police
officer; and Richard Zavinshy, the chief of the Police Department. Shalhoub alleged that
on January 22, 2007, Officer Depreta stopped him, took him into custody, and seized
$876 in cash and the Lincoln Town Car that he was driving. Depreta apparently released
Shalhoub, but stated that he would surrender the car to only its registered owner.
Shalhoub then returned to the police station with Firas Al Salibi, who, although not the
car’s owner, claimed to have the owner’s permission to use it. However, in the process
of these negotiations, the police seized Al Salibi’s vehicle, a Chevrolet van. Inside the
van was $15,500 in cash that belonged to Shalhoub, which the police also confiscated.
Shalhoub claims that the defendants have neither returned his $16,376 nor initiated
forfeiture proceedings. On January 27, 2007, Shalhoub was arrested and has been in
custody since that date.
Shalhoub initially filed his complaint in the United States District Court for the
Middle District of Pennsylvania. A magistrate judge issued a report and recommendation
concluding that (1) the complaint should be dismissed as barred by the two-year statute of
limitations, and (2) venue lay only in the United States District Court for the District of
New Jersey. The case was then transferred to the District of New Jersey for further
proceedings.
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On January 31, 2011, the United States District Court for the District of New
Jersey entered an order adopting the previously issued report and recommendation and
dismissing the complaint pursuant to 28 U.S.C. § 1915. The Court concluded that in
New Jersey, § 1983 claims are subject to a two-year statute of limitations, and held that
Shalhoub had failed to file his complaint within two years of his claims’ accrual.
Nonetheless, the Court “ordered that to the extent the deficiencies in Plaintiff’s claims
may be cured by way of amendment, Plaintiff is granted thirty (30) days in which to file
such an amended complaint.”
On March 1, 2011, the Court entered an order dismissing Shalhoub’s complaint
with prejudice and closing the case. On the same day, a document that Shalhoub called
an “amended motion to show cause” arrived in the District Court. The Court construed
the document as an amended complaint, but concluded that it had not been filed within
the 30-day period prescribed by the Court’s previous order, and thus refused to consider
it. Shalhoub then filed a timely notice of appeal.
As an initial matter, we conclude that the District Court should have permitted
Shalhoub’s amendment. Contrary to the Court’s calculation, the amendment was in fact
filed within 30 days of the date that the Court entered its scheduling order. Nevertheless,
we find it unnecessary to remand the case, because the District Court’s ruling that
Shalhoub’s complaint was barred by the applicable statute of limitations applies with
equal force to his amended complaint. See Nicini v. Morra, 212 F.3d 798, 805 (3d Cir.
2000) (explaining that “[w]e may affirm the District Court on any grounds supported by
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the record”). As the District Court explained, Shalhoub’s § 1983 claims are subject to a
two-year statute of limitations. See O’Connor v. City of Newark, 440 F.3d 125, 126-27
(3d Cir. 2006). In his amended complaint, Shalhoub alleges that the defendants wrongly
seized his property on January 22, 2007. However, he did not file his complaint until
December 22, 2010 – well outside the limitations period.
Shalhoub contends that the equitable tolling doctrine renders his claims timely.
According to Shalhoub, the defendants told him that they would return his property to
him when he completed his state sentence, and that these misstatements caused him to
allow the filing deadline to pass. See, e.g., Binder v. Price Waterhouse & Co., L.L.P.,
923 A.2d 293, 298 (N.J. Super. Ct. App. Div. 2007). However, his own allegations
undermine this argument. See generally Fogle v. Pierson, 435 F.3d 1252, 1258-59 (10th
Cir. 2006) (explaining that dismissal is appropriate under § 1915 when it is “patently
clear” that tolling argument lacks merit). The equitable tolling doctrine “requires the
exercise of reasonable insight and diligence by a person seeking its protection.”
Villalobos v. Fava, 775 A.2d 700, 708 (N.J. Super. Ct. App. Div. 2001). Shalhoub
acknowledges that he finished serving his sentence on September 11, 2008. Had
Shalhoub proceeded with reasonable diligence, he would have realized soon thereafter
that the defendants – despite the promises that they had allegedly made – did not intend
to return his property. Shalhoub, however, did not inquire as to the status of his property
until July 2010, and ultimately did not file his complaint until December 22, 2010. Thus,
even if we toll the statute of limitations until Shalhoub should have known that the
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defendants had permanently confiscated his property (on or about September 11, 2008),
see Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1392 (3d Cir. 1994), his
complaint is still barred by the two-year statute of limitations. Shalhoub’s lack of
diligence in investigating his claims and filing his complaint is fatal to his equitable
tolling argument. See Binder, 923 A.2d at 299 (“Equity does not aid one whose
indifference contributed materially to the injury complained of.” (internal quotation
marks omitted)); see also Cetel v. Kirwan Fin. Group, Inc., 460 F.3d 494, 509 (3d Cir.
2006).
We thus agree with the District Court’s conclusion that Shalhoub’s action is time-
barred. We note that Shalhoub has also asserted a state-law negligence claim; we
understand the District Court’s dismissal of this claim to be without prejudice to
Shalhoub’s right to assert that claim in state court. See Kach v. Hose, 589 F.3d 626, 650
(3d Cir. 2009). With this understanding, we will summarily affirm the District Court’s
order. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We also deny Shalhoub’s request for the
appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993).
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