2013 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

5-2-2013

Pedro Tavares v. Attorney General United States

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-4543

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2013

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2013 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Pedro Tavares v. Attorney General United States" (2013). 2013 Decisions. Paper 878.

http://digitalcommons.law.villanova.edu/thirdcircuit_2013/878
CLD-199 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-4543

___________

PEDRO JUAN TAVARES,

Appellant

v.

ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA;

SECRETARY OF THE UNITED STATES DEPARTMENT OF HOMELAND 

SECURITY; BRIAN ELWOOD, Monmouth County Jail Warden;

THEODORE J. HUTTER, Passaic County Jail Warden

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 2:10-cv-01328)

District Judge: Honorable Kevin McNulty

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

April 18, 2013

Before: RENDELL, JORDAN and VAN ANTWERPEN, Circuit Judges

(Opinion filed: May 2, 2013)

_________

OPINION

_________

PER CURIAM

In 2010, appellant Pedro Juan Tavares, a New York prisoner, filed a pro se civil 
2

rights lawsuit alleging constitutional violations in connection with the many years he 

spent in various New Jersey and Pennsylvania immigration detention facilities. In 

Tavares’s amended complaint, he acknowledged that the complained-of period ended in 

2006. See, e.g., Am. Compl. ¶¶ 6, 21. Pursuant to its screening responsibilities under the 

Prison Litigation Reform Act (“PLRA”), the District Court granted Tavares’s in forma 

pauperis (IFP) application and evaluated the complaint pursuant to 28 U.S.C. 

§ 1915(e)(2). The District Court decided it was time barred and dismissed it with 

prejudice, but the Court also granted Tavares leave to reopen if he could demonstrate 

(through the filing of a second amended complaint) that his claims were timely. 

Tavares’s motion to reopen was denied, after which he sought review from this Court.

We have jurisdiction pursuant to 28 U.S.C. § 1291.1 Our review of the dismissal 

order is plenary, see Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000), and our 

review of the denial of a request to reopen is for abuse of discretion, cf. Silberman v. 

Bogle, 683 F.2d 62, 66 (3d Cir. 1982). “Having granted [Tavares] leave to proceed [IFP]

 

1 Because the District Court’s September 2012 order allowed Tavares to submit a second 

amended complaint with a motion to reopen, which he did, the Court’s November 30, 

2012 order is the “final” order for the purposes of a timely appeal.

In order to forestall future confusion, we note that this lawsuit was originally docketed by 

the District Court under the case number “10-1328,” which was used through August 

2012. After September 2012, documents issued by the Court incremented the year by 

one, reflecting a “11-1328” case number; as a consequence, the two well-reasoned 

District Court opinions are cataloged on legal databases using the latter case number. To 

be clear: the “two” cases are in fact one and the same. Because we believe the latter 

number to be a clerical error—PACER reveals D.N.J. Civ. No. 11-1328 to be an entirely 

different case—we use the 2010 reference in our caption. 
3

on appeal, we must now determine whether his appeal should be dismissed pursuant to 28 

U.S.C. § 1915(e)(2)(B)”—an appropriate path if the appeal has “no arguable basis in law 

or fact.” Azubuko v. Royal, 443 F.3d 302, 303 (3d Cir. 2006) (per curiam). 

We agree with the District Court that Tavares’s complaint was facially untimely, 

and hence was properly dismissed. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 

2006); see also Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002). Even if we were to take 

the most charitable view of the accrual of his claims, none of the conduct alleged to be 

unlawful or unconstitutional in the amended complaint occurred after 2006. As the 

District Court explained, the statute of limitations for civil-rights suits is borrowed from 

the host state’s personal-injury limitations period. Here, the period is two years. See, 

e.g., Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010); see also Tavares v. 

Att’y Gen., 211 F. App’x 127, 128 (3d Cir. 2007) (nonprecedential per curiam) 

(explaining the limitations period to Tavares in a prior appeal). Tavares was given an 

opportunity to show that he was eligible for tolling of the limitations period or that his 

claims were otherwise timely, but he failed to make any such showing. Accordingly, the 

District Court did not err by dismissing his complaint and in denying reopening. 

Thus, for the foregoing reasons, this appeal will be dismissed. See 28 U.S.C. 

§ 1915(e)(2)(B)(i).