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 Nurse Leopold has previously been dismissed from this case.

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 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIC J. LYONS, )

Plaintiff, )

v. ) C.A. No. 03-75 Erie

) District Judge McLaughlin

LT. JOSEPH EMERICK, et al., ) Magistrate Judge Baxter

Defendants. )

MEMORANDUM ORDER

On March 11, 2003, Plaintiff, an inmate incarcerated at the State Correctional Institution

at Huntingdon in Huntingdon, Pennsylvania, filed the instant civil rights action. Named as

Defendants are: Lt. Joseph Emerick, Captain James Skindell, Detective G. McShane, Officer J.

DeBello, and Officer McLaughlin, all of the Erie Police Department; Special Agent Shawn Van

Slyke of the Federal Bureau of Investigation; Nurse Cathy Leopold1 of St. Vincent Medical

Center; and George Wellsby, owner of The Car Corner. Plaintiff alleges that his constitutional

rights were violated during a criminal investigation and his subsequent arrest involving the

kidnaping, rape and attempted murder of a young girl.

Plaintiff’s complaint was referred to United States Magistrate Judge Susan Paradise

Baxter for report and recommendation in accordance with the Magistrates Act, 28 U.S.C. §

636(b)(1), and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.

By Report and Recommendation dated October 28, 2005, Magistrate Judge Baxter

recommended that: the motion to dismiss filed by Defendant Wellsby [Document # 109] be

DISMISSED as moot; the motion for leave to file an amended complaint filed by Plaintiff

[Document # 111] be DENIED AS FUTILE; the motion for summary judgment filed by

Defendant Van Slyke [Document # 113] be GRANTED; and the motion for summary judgment

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 We also note that there was nothing that would have prevented the Plaintiff from filing

the complaint even without a certified copy of his institutional account statement. Plaintiff’s

alleged erroneous conclusion to the contrary is of no moment as a mistake or lack of knowledge

of the law does not serve to toll the statute of limitations. Johnson v. Hendricks, 314 F.3d 159,

163 (3d Cir.2002), cert. denied 538 U.S. 1022 (2003) (holding attorney error, miscalculation,

inadequate research, or other mistakes are not the extraordinary circumstances necessary to

establish equitable tolling); Williams v. Sims, 390 F.3d 958, 963 (7th Cir.2004) (“[E]ven

reasonable mistakes of law are not a basis for equitable tolling.").

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filed by Defendants Emerick, Skindell, McShane, DiBello and McLaughlin [Document # 117]

be GRANTED. Document # 129. Magistrate Judge Baxter specifically found that Plaintiff had

filed the complaint outside of the statute of limitations period and that there were no

extraordinary circumstances that justified the equitable tolling of the limitations period. The

parties were allowed ten days from the date of service to file Objections to the Report and

Recommendation. 

Objections were filed by Plaintiff on November 9, 2005.

Following a de novo review of the record and pleadings in this case, this Court

concludes, as did the Magistrate Judge, that an administrative delay in returning Plaintiff’s

institutional account statement to him did not constitute an extraordinary circumstance for the

purposes of equitably tolling the statute of limitations.2 In addition to Garrick v. Vaughn, 2003

WL 22331774 (E.D. Pa. 2003), relied upon by the Magistrate Judge, we find the following

additional cases instructive. Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1271)

(holding that equitable tolling of motion to vacate, set aside or correct sentence was

inappropriate where motion was sent by ordinary mail less than one week before its due date and

the untimely mailing could have been avoided by mailing it earlier); Hartman v. Carroll, 2004

WL 2713104, at *4 (D.Del. 2004) (“[L]imited access to the law library and the internet do not

necessarily warrant equitable tolling of the limitations period.”); Holman v. Sobina, 2004 WL

1196651 (E.D. Pa. 2004) (holding that the inadequacy of prison legal materials is not the kind of

extraordinary circumstances that would warrant equitable tolling.); Taylor v. Carroll, 2004 WL

1151552, at *5 (D.Del. 2004) (“[T]he court concludes that petitioner’s alleged limited library

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 access does not warrant equitably tolling the one-year filing period.”); Perry v. Vaughn, 2003

WL 22391236, at *4 (E.D. Pa. 2003) (“A lockdown and limited library access alone do not

support a finding that the statute [of limitations] must be equitably tolled.”); Miller v. Marr, 141

F.3d 976 (10th Cir. 1998). 

In short, the record here conclusively establishes that Plaintiff did not exercise

“reasonable diligence” in bringing his claims to court. Garrick, at * 2. Plaintiff has not

demonstrated that the untimely filing was “both beyond his control and unavoidable even with

diligence.” Sandvik, at 1271. 

AND NOW, this 15th day of November, 2005;

Following a de novo review of the pleadings in this case,

IT IS HEREBY ORDERED that the Report and Recommendation of Magistrate Judge

Baxter, dated October 28, 2005, is adopted as the opinion of this Court. The Clerk is directed to

mark this case closed.

S/ Sean J. McLaughlin

Sean J. McLaughlin

United States District Judge

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