NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 14

- 3269

_____________ JORDAN ATKINSON ,

Appellant

v.
MIDDLESEX COUNTY; MIDDLESEX COUNTY BOARD OF FREEHOLDERS; MIDDLESEX COUNTY ADULT CORRECTION CENTER; EDWARD CICCHI; CHRISTOPHER RAFANO; DALINA; JOHN PULOMENA; JOHN POLOUS; BLANQUITA VALENTI; FERNICOL A; RONALD ROJAS; DAVID CRABIEL, DECEASED; BARRETT; SERGEA NT FRANK REDDING; ROBERT M. AXELROD; OFFICER JESSE SCHWARTZ

_____________ APPEAL FROM THE UNITED ST ATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY (D.C. Civil Action No. 3

- 09

- cv - 04863 ) District Judge: Hon. Freda L. Wolfson

______________ Submitted Under Third Circuit LAR 34.1(a)

April 15, 2015

______________ Before: AMBRO, VANASKIE, and SHWARTZ , Circuit Judges

.

( Opinion Filed: April 21, 2015 )

______________ OPINION *

______________

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2

SHWARTZ, Circuit Judge

. Jordan Atkinson moved to reopen and amend his complaint against Middlesex County Adult Correction Center , its warden, a nd multiple corrections officers (collectively, “Defendants ”) , nearly two years after the District Court dismissed the case
for failure to state a claim

. The District Court, concluding that its dismissal constituted a
final order , declined to reopen Atkinson’s case to permit amendment and denied both the
motion t o reopen and a subsequent motion for reconsideration. We will affirm.
I Atkinson alleges that his cel lmate at Middlesex County Adult Correction Center sexually assaulted him on or around September 21, 2007, and that Defendants

“ mistreated ” him afterwards and interfered with his ability to pursue a legal claim related

to his mistreatment

. App. 42

- 45. On September 21, 2009, Atkinson, through his counsel, Gerald Gordon, filed a complaint under 42 U.S.C. § 1983 seeking unspecified damages for “violation [s] of his civil rights” and “pai n, suffering[, and] humiliation, ” App. 4 6 , and subsequently filed an amended complaint ( the “First Amended Complaint”) asserting
constitutional and state law claims related to the sexual assault and his mis treatment thereafter

. Defendants moved to dism iss the First Amended Complaint for failure to state a
claim under Fed. R. Civ. P. 12(b)(6)

. On May 31, 2011, t he District Court held that “all
of the counts a re grossly insufficient as pled ” and ordered that Atkinson’s “cla ims against all [D]efendants [be] d ismissed without prejudice ” (the “Dismissal Order”). App. 18

- 19.3

By this time, Atkinson had filed two grievances against Gordon, alleging that
Gordon f ailed to keep him informed of the progress of his case. Contrary to t his
assertion , two weeks after the entry of the Dismissal Order, Gordon advised Atkinson
that he had sixty days to file whatever would be necessary to further amend the First Amended Complaint to avoid permanent dismissal , but th at Gordon could not continu e to represent him because of the grievances . Gordon also advised him to find anothe r attorney “without delay” and to have the new attorney contact Gordon “immediately.” App. 54. In a letter dated July 8, 2011 , Atkinson personally requested that the Dis trict Court “place a f reeze” on his case and implored it to “step in and assist [him].” App. 48. He
stated that he and Gord on had “had a filling [sic] out” and t hat he had not “been told a single thing about [ the] case. ” Id. He stated further that he “ attempted to obtain replacement counsel[,] but no one will touch the case.” 1 App. 49.
Atkinson e ventually obtained new counsel, who attempted to file a “verified amended complaint” on April 15, 2013 (the “Verified Amended Complaint”)

. App. 33. Therein, he asserted a single cause of action under § 1983, claimin g that Defendants violated his First, Fourth, Eighth, and Fourteenth Amendment rights by failing to reassign
him to another cell before the sexual assault and for harassing him thereafter

. Informe d by the District Court cle rk that his case was closed , Atkinson filed a motion to reopen the

1 T he District Court later charact erized Atkinson’s request for assistance in his letter as “improper[,] since there was no pending complaint or case.” App. 7.4

case and for leave to file a verified amended complaint, citing Fed. R. Civ. P. 15 ( the “Motion”)

. The District Court denied the M otion and Atkinson’s subseq uent motion for
reconsideration , concluding that : (1) the Dismissal Order constitutes a final order and hence Rule 60(b) rather than Rule 15 governs the Motion ; and (2) Atkinson failed to demonstrate extraordinary circumstances warranting re opening under R ule 60(b)(6)

. Atkinson appeals.
II 2
A Atkinson appeals the order denying his motion to reconsider the order that denied his motion to reopen and for leave to file an amended complaint. 3 We must therefore
determine whether the order that terminated the c ase was a final order , as this will dictate whether a motion to reopen or to vacate the Dismissal Order was needed before the District Court could grant Atkinson leave to file the Verified Amended Complaint.
The Dismissal Order dismissed the First Amended Complaint “without prejudice.” App. 19. While “ an order dismissing a complaint without prejudice is not a final order as

2 The District Court had jurisdiction und er 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291.

3 With respect to the order denying the motion to reopen , we review the denial for abuse of discretion, though the District Court’s decision to “treat [Atkinson’s] motion as a Rule 60(b) motion . . . is purely a question of law, which we review de novo.” Penn West Assocs., Inc. v. Cohen , 371 F.3d 118, 124 (3d Cir. 2004). Likewise, “[w]e generally review a district court’s denial of reconsideration for abuse of discretion,” but when “a di strict court predicates its denial of reconsideration on an issue of law, our review is plenary, and when it bases its denial on an issue of fact, we review for clear error.” Wiest v. Lynch , 710 F.3d 121, 128 (3d Cir. 2013)

.5

long as the plaintiff may cure the deficie ncy and refile the complaint, ” Ahmed v. Dragovich , 297 F.3d 201, 207 (3d Cir. 2002) , “[t]h is principle . . . does not apply if the statute of limitations has run by the time the court orders dismissal without prejudice, ” unless the District Court grants “leave to amend within a time certain ,” which did not happen here. Brennan v. Kulick , 407 F .3d 603, 606

- 07 (3d Cir. 2005). 4 After the statute of limitations has run, an unconditional dismissal without prejudice is considered final.
Id. at 606. Thus, we must determine if the statute of limitations on Atkinson’s claims had expired as of May 31, 2011, the date of the Dismissal Order. Atkinson’s claims were all based on § 1983 and state

- l aw torts, all of which have

two

- year statutes of limitations. See, e.g. , Dique v. N.J. State Police , 603 F.3d 181, 185 (3d Cir. 2010) (“A [§] 1983 claim is char acterized as a personal

- injury claim and thus is governed by the applicable state’s statute of limitations for personal

- injury claims,” which in New Jersey is two years); see also N.J. Stat. Ann. § 2A:14

- 2. The statute of limitations begins to run “when t he wrongful act or omission results in dam ages.” Dique , 603 F.3d at 185

- 86 (internal quotation marks omitted). Thus, the statute of limitations for the September 2007 sexual assault and the failure to reassign Atkinson prior thereto expired no later than September 2009, and the statute of limitations for Defendants’ subsequent conduct that allegedly continued into 2008 expired at some point in 2010. Thus, the two

- year statute of limitations had run by the time the District Court dismissed

4 This is because “ [ a ] statut e of limitations is not tolled by the filing of a complaint subsequently dismissed without prejudice, as the . . . complaint is treated as if it never existed.” Brennan , 407 F.3d at 606 (internal quotation marks omitted). Thus, “the dismissal of a complai nt without prejudice after the statute of limitations has run forecloses the plaintiff’s ability to remedy the deficiency underlying the dismissal.” Id.6

the First Amend ed Complaint on May 31, 2011

. 5 As a result, the Dismissal Order, though “without prejudice,” was final. See Brennan , 407 F.3d at 606

. The District Court properly so concluded and, accordingly, did not err in reviewing the Motion under Rule 60(b). See A hmed , 297 F.3d at 207

- 08

. 6
B

“ Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances . . . . ” Gonzalez v. Crosby , 545 U.S. 524, 528 (2005). “[A] party seeking Rule 60(b)(6) relief must demonstrate the existence of ‘extraordinary circumstances’ that justify reopening.” Budget Blinds, Inc. v.
White , 536 F.3d 244, 255 (3d Cir. 2008 ) (footnote omitted)

. T o demonstrate

5 Atkinso n ur ges us to conclude that Gordon abandoned him and this equitably toll ed the statute of l imitations. “Under equitable tolling, plaintiffs may sue after the statutory time period for filing a complaint has expired if they have been prevented from filing in a timely manner due to sufficiently inequitable circumstances,” including attorney misb ehavior. Seitzinger v. Reading Hosp. & Med. Ctr. , 16 5 F.3d 236, 240 (3d Cir. 1999). While the record reflects a breakdown in the attorney

- client relationship, Atkinson does not allege that Gordon misled him. Cf. id. at 241 (concluding that attorney misb ehavior was sufficient to preclude summary judgment on plaintiff’s equitable tolling claim, where attorney “affirmatively lied to his client” by assuring her that he had filed her complaint when he had not). Thus, Gordon’s conduct in this case does not co nstitute a circumstance that warrants the “sparingly” used and “extraordinary” remedy of equitable tolling. Santos ex rel. Beato v. United States , 559 F.3d 189, 197 (3d Cir. 2009).

6 Atkinson argues that the Verified Amended Complaint relates back to th e original pleading under Rule 15(c) and thus is not barred by the statute of limitations. This ignores the fact that a final order dismissing his case had been entered , and that Rule 60(b) and not Rule 15 applied. “Although Rule 15 vests the District Cou rt with considerable discretion to permit amendment . . . , the liberality of the rule is no longer applicable once [final] judgment has been entered.” Ahmed , 297 F.3d at 207

- 08. At that stage, “the filing of an amendment under Rule 15 cannot be allowed until the judgment is set aside or vacated under . . . Rule 60[(b)].” Id. at 208 (internal quotation marks and brackets omitted).7

extraordinary circumstances , Atkinson must show that without relief from the Dismissal Order, “extreme and unexpected hardship will result. ” Id. at 255 (internal quotation marks omitted) . While this requirement is sometimes satisfied when the challenged judgment precluded adjudication on the merits, “extraordinar y circumstances rarely exist when a party seeks relief from a judgment that resulted from the party’s deliberate choices.” Id. Atkinson cites attorney abandonment, the confusing nature of the Dismissal Order, his education level and prisoner status, and his diligent efforts to obtain counsel as presenting extraordinary circumstances.
Atkinson file d two grievances against his couns el

— one of which he later apologized for

— that led Gordon to de cline to continue to represent him after the
dismissal of the Fir st Amended Complaint. Furthermore, contrary to Atkinson’s assertion, Gordon did not abandon him. He filed two complaints and responded to Defendants’ motion to dismiss. In addition, e ven after the case was dismissed, Gordon
ensured Atkinson was informed of the status of the case and hi s decision to stop represent ing Atkinson due to the grievances , and he instructed Atkinson to find a new attorney “without delay” and to have that attorney contact him “ immediately,” because
Atkinson needed to quickly respo nd to the dismissal of the First Amended Complaint. App. 54. Thus, the record discloses no “egregious” attorney conduct that warrants reopening Atkinson’s case. Cf. Boughner v. Sec’y of Health, Ed uc
. & Welfare , 572 F.2d 976, 977

- 79 (3d Cir. 1978) (concl uding that attorney’s failure to oppose a motion for summary judgment constituted an extraordinary circumstance warranting reopening8

under Rule 60(b)(6), where attorney failed to file responsive pleadings in fifty

- two other

cases ). Atkinson’s other argume nts also fail to satisfy Rule 60(b)(6)’s “ extraordinary
circumstances ” requirement . While the Dismissal Order did not say the case was

“ terminated, ” the docket did, App. 33, and Gordon’s letter suggested as much. Furthermore, the law regarding the finali ty of an order dismissing a complaint after the
statute of limitatio ns period is well

- settled. I n any event, Atkinson cites no authority for the proposition that confusion about the finality of an order or his alleged personal challenges and efforts to ob tain new counsel constitute extraordinary circumstances

. Finally, these circumstances do not outweigh the interest in preserving the finality of a nearly two

- year old judgment. See Gonzalez , 545 U.S. at 535

. Thus, the District Court
did not abuse its di scretion in denying the Motion under Rule 60(b)(6).
III For the foregoing reasons, we will affirm the orders of the District Court denying
the Motion and the motion for reconsideration

.