                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-4-2005

Cox v. Fort Lee
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1498




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                                                      NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT

                                NO. 05-1498
                             ________________

                             GEORGE C. COX,
                                        Appellant

                                     v.

     THE BOROUGH OF FORT LEE, A municipal corporation of New Jersey;
     THE FORT LEE POLICE DEPARTMENT, An agency of the borough of
    fort lee; THOMAS TESSARO, CHIEF OF POLICE, Individually and in his
         official capacity; ROY BORTOLOUS, LIEUTENANT, Individually
             and in his official capacity; PATRICK KISSEANA, POLICE
            OFFICER, Individually and in his official capacity; CABERA,
           POLICE OFFICER, first name Unknown, individually and in his
             official capacity; FARRELL, POLICE OFFICER, first name
                   Unknown, individually and in his official capacity
                       ___________________________________
                    On Appeal From the United States District Court
                              For the District of New Jersey
                               (D.C. Civ. No. 02-cv-05938)
                      District Judge: Honorable Faith S. Hochberg
                    ______________________________________

                  Submitted Under Third Circuit LAR 34.1(a)
                               July 11, 2005

             Before: ROTH, McKEE and ALDISERT, Chief Judges

                        (Filed   November 4, 2005 )

                         _______________________

                                OPINION
                         _______________________

PER CURIAM
       George C. Cox appeals pro se from the February 2, 2005, order of the United

States District Court for the District of New Jersey dismissing his complaint. For the

reasons that follow, we will affirm.

       The parties are familiar with the facts, so we will only briefly revisit them here.

Following a search of his hotel room in Fort Lee, New Jersey on April 10, 1998, Cox was

arrested and charged with several state drug offenses, as well as theft of government

property in violation of 18 U.S.C. § 641. In February 1999, Cox pled guilty in the United

States District Court for the Eastern District of New York to the federal charge.1 The

following month Cox pled guilty to possession of a controlled dangerous substance in the

Superior Court of New Jersey. However, on June 29, 2000, more than a year after this

latter guilty plea was entered, but prior to sentencing, Cox’s state conviction was

dismissed by order of the Superior Court.2

       On December 16, 2002, Cox submitted a civil rights complaint pursuant to 42

U.S.C. §§ 1983 and 1985(3) in the District Court for the District of New Jersey. In his

complaint, Cox alleged that the events of April 10, 1998 violated his Fourth Amendment


       1
         Cox was eventually sentenced to a 46 month term of federal incarceration. Cox
was released from custody on September 1, 2002.
       2
         According to New Jersey Assistant Prosecutor Mark Dispoto, his office moved
to dismiss Cox’s conviction “in light of [Cox’s] lengthy federal sentence” and because of
the expense associated with extraditing Cox to New Jersey to be sentenced “on a minor
drug offense for which he was going to receive probation.” United States v. Cox, 2001
WL 920260, at * 14 (E.D.N.Y. Aug. 3, 2001). However, Dispoto stressed that the
decision was “administrative,” and “was not meant, in any way, to suggest that []his
office questioned the legal and factual merits of [Cox’s] case or []his plea.” Id.

                                              2
rights. Cox also alleged state law claims of negligence and invasion of privacy. The

defendants filed a motion to dismiss Cox’s complaint pursuant to Fed. R. Civ. P. 12(b)(6).

By order entered February 2, 2005, the District Court granted the defendants’ motion to

dismiss. Specifically, the District Court determined that Cox’s federal claims were barred

by the statute of limitations, or in the alternative, by Heck v. Humphrey, 512 U.S. 447

(1994), and declined to exercise supplemental jurisdiction over his state law claims. This

timely appeal followed.

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of

the District Court’s dismissal of Cox’s complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Gary v. Air Group, Inc., 397 F.3d 183, 186 (3d Cir. 2005). Because we are reviewing the

grant of a motion to dismiss, we accept as true all factual allegations in the complaint and

view them in the light most favorable to Cox. Doug Grant, Inc. v. Greate Bay Casino

Corp., 232 F.3d 173, 183 (3d Cir. 2000). We may affirm the District Court on any

grounds supported by the record. Nicini v. Morra, 212 F.3d 798, 805 (3d Cir. 2000) (en

banc).

         An action brought under § 1983 or § 1985(3) is subject to the state statute of

limitations that governs personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276-278

(1985); Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). “In New Jersey that statute is

N.J.S.A. 2A: 14-2, which provides that an action for an injury to a person caused by a

wrongful act, neglect, or default, must be convened within two years of accrual of the



                                               3
cause of action.” Cito v. Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir.

1989) (quoting Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987)) (internal quotation marks

omitted). Although state law sets the applicable limitations period, federal law dictates

when the action accrues. Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998).

In his complaint, Cox alleged that the defendants violated his Fourth Amendment rights

on April 10, 1998. Cox does not dispute that his complaint was filed more than two years

after the events of April 10, 1998. Instead, relying on Heck v. Humphrey, 512 U.S. 477

(1994), he contends that his Fourth Amendment claims did not accrue until his state

conviction was dismissed.

       Heck bars any suit for damages premised on a violation of civil rights if the basis

for the suit is inconsistent with or would undermine the constitutionality of a conviction

or sentence. Id. at 486-87. If success in a civil suit would necessarily imply the invalidity

of a conviction or sentence, Heck requires the plaintiff to wait until his conviction or

sentence has been “reversed on direct appeal, expunged by executive order, [or] declared

invalid by a state tribunal” before bringing suit. Id. Following Heck, we recently

concluded that “Fourth Amendment claims can be brought under § 1983, even without

favorable termination, if the district court determines that the success on the [] claim

would not necessarily imply the invalidity of the conviction.” Gibson v. Superintendent

of NJ Dept. of Law and Public Safety-Division of State Police, __ F.3d __, 2005 WL

1393752, * 15 (3d Cir. Jun. 14, 2005). However, “in those cases in which a district court



                                              4
determines that success on the § 1983 claim would imply the invalidity of the conviction,

the cause of action is deferred until the conviction is overturned.” Id. at * 16.

       Under the circumstances presented here, we need not determine whether Cox’s

state conviction was “overturned” or whether his Fourth Amendment claim “would imply

the invalidity” of his federal conviction. This is so because, regardless of whether Cox’s

claims accrued on April 10, 1998, or on June 29, 2000, his complaint – submitted on

December 16, 2002 – is barred by the applicable statute of limitations in that it was

received and filed more than two years after the latter date.3 See Cito, 892 F.2d at 25.

       For the foregoing reasons, we will affirm the District Court’s dismissal of Cox’s

federal claims as time-barred, as well the District Court’s refusal to assert supplemental

jurisdiction over Cox’s state law claims. See 28 U.S.C. § 1367(c).




       3
         Although Cox’s complaint was not “filed” until January 21, 2003 when the
District Court granted him leave to proceed in forma pauperis, for statute of limitation
purposes, we deem his complaint constructively filed as of December 16, 2002, the date
on which his complaint and in forma pauperis application were received in the District
Court. Utturia v. Harrisburg County Police Dept., 91 F.3d 451, 458 n.13. Regardless, the
complaint was untimely no matter which date is used.

                                              5
