NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 16-3711

___________

LEROY T. MOORE,

 Appellant

v.

MIDDLESEX COUNTY PROSECUTORS OFFICE; CARTERET 

POLICE DEPARTMENT; JOSEPH CELENTANO, individually 

and in his official capacity; CRAIG MARCHAK; IVAN SCOTT;

INVESTIGATOR RODRIGUEZ; MICHAEL DAMMAAN, 

Carteret Police Officer; LARISSA BERRIOS; LASPINO

____________________________________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 2-15-cv-06751)

District Judge: Honorable Jose L. Linares

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

May 23, 2018

Before: JORDAN, RESTREPO, and SCIRICA, Circuit Judges

(Opinion Filed: June 7, 2018)

___________

OPINION*

___________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Leroy T. Moore, who is serving a New Jersey state prison sentence, appeals from 

the District Court’s final order dismissing his complaint. We will affirm.

I.

This appeal is from the dismissal of the second of two lawsuits that Moore filed 

relating to the search of his home and his arrest on August 28, 2009. That search and 

arrest led to criminal charges. Moore ultimately pleaded guilty to several of those 

charges, including possessing cocaine with the intent to distribute it within 1,000 feet of a 

school in violation of N.J. Stat. Ann. § 2C:35-7.1. 

Moore filed his first suit in 2011. (D.N.J. Civ. No. 2-11-cv-00281.) He asserted 

several claims under 42 U.S.C. § 1983, including a claim of malicious prosecution and a 

claim that the August 28 search and arrest were illegal because a detective forged the 

warrant. The District Court granted Moore leave to proceed in forma pauperis (“IFP”). 

The District Court then dismissed most of Moore’s claims for failure to state a claim, but 

it allowed his claim of illegal search and arrest to proceed. 

During discovery, the District Court stayed the action pending developments in 

Moore’s state-court criminal case. Defendants later filed a motion to lift the stay and for 

summary judgment seeking revocation of Moore’s IFP status and the dismissal of the 

action on the ground that he had three “strikes” under the Prison Litigation Reform Act. 

See 28 U.S.C. § 1915(g). The District Court granted that motion and dismissed the 

action by order entered September 19, 2013. The District Court did so without prejudice 

to Moore’s ability to refile his complaint after paying the applicable fees. The District 
3

Court did not provide any deadline for payment. The District Court’s order was 

immediately appealable both because it denied Moore IFP status, see Abdul-Akbar v. 

McKelvie, 239 F.3d 307, 311 (3d Cir. 2001) (en banc), and because the statute of 

limitations governing Moore’s last remaining claim had expired as discussed below, see

Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005). Moore, however, did not appeal.

Instead, approximately 18 months later in 2015, Moore began sending the District 

Court letters stating his intention to pay the fees and proceed with his claims. Then, in 

July of 2015, almost two years after the District Court dismissed his 2011 action, Moore 

notified the District Court that he had paid most of the fees and requested leave to 

proceed. In response, the District Court notified Moore that he could file a new 

complaint containing his claims after paying the remaining fees. The District Court 

warned Moore, however, that his previous claims likely were barred by the statute of 

limitations. Moore nevertheless paid the remaining fees and filed a new complaint, 

which the District Court docketed as the separate 2015 civil action at issue here.

Moore’s new complaint contained some but not all of the claims he asserted in his 

previous complaint. The District Court screened Moore’s complaint pursuant to 28 

U.S.C. § 1915A and dismissed all but his malicious prosecution claim under the statute of 

limitations. The District Court twice allowed Moore to amend his malicious prosecution 

claim before ultimately allowing it to proceed beyond the screening stage. Defendants 

later filed a motion to dismiss the malicious prosecution claim under Fed. R. Civ. P. 
4

12(b)(6). The Court granted that motion, dismissed Moore’s malicious prosecution claim 

for failure to state a claim, and directed its Clerk to close the case. Moore appeals.1

II.

Moore challenges both the dismissal of his malicious prosecution claim for failure 

to state a claim and the dismissal of his remaining claims under the statute of limitations. 

We address those issues in turn.

A. Malicious Prosecution

Defendant Joseph Celentano filed a criminal complaint against Moore charging 

him with committing several crimes on August 28, 2009, including possessing cocaine 

with intent to distribute within 1,000 feet of a school. The complaint identified the 

school as Nathan Hale Elementary School. Moore was later indicted on the charges 

contained in the complaint (and others). The indictment, however, charged Moore with 

possessing cocaine on August 28, 2009, within 1,000 feet of a different school, one called 

Columbus Elementary School. Following protracted proceedings in state court, Moore 

 

1 We have jurisdiction under 28 U.S.C. § 1291. Our review of dismissals for failure to 

state a claim under 28 U.S.C. § 1915A and Rule 12(b)(6) is plenary. See Allah v. 

Seiverling, 229 F.3d 220, 223 (2000). To survive dismissal, “a complaint must contain 

sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 

face.” Palakovic v. Wetzel, 854 F.3d 209, 219 (3d Cir. 2017) (quotation marks omitted). 

We note that we granted Moore leave to proceed IFP on appeal despite the “three strikes” 

provision of 28 U.S.C. § 1915(g). We did so solely on the basis of the record before us 

and solely for purposes of this appeal. The District Court’s ruling in Moore’s 2011 action 

that he has three strikes is not before us on appeal and, although the District Court again 

denied IFP status in this case after Moore already had paid the fees, Moore has not 

challenged that ruling. Thus, we express no opinion on the correctness of the District 

Court’s ruling that Moore has three strikes.
5

ultimately pleaded guilty to that charge (and others) in May 2013.

Moore claims that Celentano maliciously prosecuted him by filing the “Nathan 

Hale” charge. One of the elements of a claim of malicious prosecution is that the 

criminal proceeding must have terminated in the plaintiff’s favor “in a way that indicates 

the innocence of the accused.” Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009) (en 

banc). This element requires termination of a “proceeding,” and it is not satisfied by the 

favorable termination of a single charge when a defendant is convicted of others unless 

the termination of that charge “indicate[s] the plaintiff’s innocence of the alleged 

misconduct underlying the offenses charged” as a whole. Id. at 188. The District Court 

concluded that Moore failed to plausibly allege this element, and we agree.

Moore argues that the proceeding initiated by the complaint terminated in his 

favor because he was never indicted on the “Nathan Hale” charge and pleaded guilty to 

the “Columbus” charge instead. Moore, however, has not plausibly alleged that the 

proceeding as a whole terminated in his favor in a manner indicating his innocence. Both 

the criminal complaint and the indictment charged Moore with committing the same 

cocaine-related crimes on the same date. The indictment charged possession of cocaine 

within 1,000 feet of a different school, but we are aware of no authority suggesting that 

the identity of the school is an element of the crime under New Jersey law and at least 

one court has concluded that “[t]he elements of the [analogous federal] offense . . . can be 

established without reference to the name of the school[.]” See United States v. Landers, 

417 F.3d 958, 964 (8th Cir. 2005) (addressing 21 U.S.C. § 860). 
6

In any event, Moore’s plea of guilty to possessing cocaine within 1,000 feet of a 

school together with other crimes charged in the complaint is not a favorable termination 

of the proceeding as a whole. Thus, the District Court properly dismissed this claim. 

B. Moore’s Remaining Claims2

The District Court also properly dismissed Moore’s remaining claims as barred by 

the statute of limitations. There is no question that these claims were untimely when 

Moore filed his 2015 complaint, and Moore does not argue otherwise. The statute of 

limitations for § 1983 claims arising in New Jersey is two years. See Dique v. N.J. State 

Police, 603 F.3d 181, 185 (3d Cir. 2010). Moore asserted his remaining claims in the 

initial complaint that he filed on January 18, 2011, so they obviously had accrued by 

then. Thus, the statute of limitations had expired when the District Court dismissed the 

2011 action more than two years later on September 19, 2013.

The District Court dismissed the 2011 action without prejudice to Moore’s ability 

to proceed by paying the fees, but that dismissal did not serve to toll the statute of 

 

2 Moore filed a premature appeal from the District Court’s order dismissing these claims 

on statute of limitations grounds. (C.A. No. 15-3540.) We dismissed that appeal because 

Moore’s malicious prosecution claim remained pending in the District Court. Some of 

the defendants now argue that we lack jurisdiction to review this order of dismissal 

because (1) Moore can seek review of the order only by “reinstating” his previous appeal, 

and (2) Moore cannot do so because that appeal was untimely as to the District Court’s 

order dismissing the 2011 action. We disagree. Now that the District Court has entered 

its final order, Moore’s timely appeal from that order permits him to challenge all 

previous orders in this case, including the initial order dismissing these claims on statute 

of limitations grounds. See Palakovic, 854 F.3d at 220. Moore does not need to 

“reinstate” his previous appeal in order to do so. Nor does the District Court’s 

disposition of the 2011 action have any bearing on the timeliness of Moore’s appeal from 
7

limitations. As we have explained, “[a] statute of limitations is not tolled by the filing of 

a complaint subsequently dismissed without prejudice, as the original complaint is treated 

as if it never existed.” Brennan, 407 F.3d at 606 (quotation marks omitted). We have 

recognized one exception: “when a complaint is filed within the statute of limitations but 

is subsequently dismissed without prejudice in an order containing conditions for 

reinstatement within a specified time period, the statute of limitations is tolled provided 

that the plaintiff meets those conditions.” Id. at 607 (emphasis added). That requirement 

is important because, without it, there would be nothing to “prevent a plaintiff from 

indefinitely extending the limitations period.” Id. 

This exception does not apply because the District Court’s order did not provide 

for reinstatement within a specific time period. Indeed, this case illustrates the concerns 

we raised in Brennan. Moore waited over 18 months following the District Court’s 

dismissal of his 2011 action before contacting the District Court again, and he waited 

almost two years before beginning to pay the fees and formally requesting reinstatement. 

The prospect of such delays is precisely why we require some time limitation in an order 

of dismissal before permitting automatic tolling in this context.

There are other potential avenues for relief from the statute of limitations. At the 

 

the disposition of the 2015 action at issue here.
8

Clerk’s direction, the parties have addressed whether there may have been a basis to 

equitably toll the statute of limitations or to construe one or more of Moore’s filings as a 

motion under Fed. R. Civ. P. 60(b). Neither avenue provides a basis for relief.3

“[E]quitable tolling may be appropriate if a litigant can demonstrate (1) that he has 

been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in 

his way.” A.S. ex rel. Miller v. SmithKline Beecham Corp., 769 F.3d 204, 212 (3d Cir. 

2014) (quotation marks omitted). 

Moore relies on two circumstances, but neither is extraordinary. First, Moore

argues that the District Court should have continued the stay of his 2011 action pending 

developments in state court instead of revoking his IFP status and dismissing it. If Moore 

wanted relief from that ruling, however, then he could and should have appealed from the 

final judgment in his 2011 action. Second, Moore relies on the District Court’s statement 

in its opinion supporting the final judgment in the 2011 action that he could “reinstate” 

that action by paying the fees (though the District Court’s actual order referred to his

ability to “refile” it). That statement could not have constituted an extraordinary 

circumstance because, when the District Court made it in dismissing the 2011 action, the 

statute of limitations already had expired and there was nothing left to toll.

Even if these circumstances were extraordinary, however, Moore has raised 

 

3 The District Court did not address these issues, so we ordinarily might remand for the 

District Court to do so in the first instance if they warranted further development. Moore 

has had an opportunity to address these issues on appeal, however, and he has raised 

nothing suggesting that remand might be warranted.
9

nothing suggesting that he acted with reasonable diligence. Moore waited over 18 

months after dismissal of the 2011 action before beginning to contact the District Court 

again, and he waited almost two years before formally requesting reinstatement and 

starting to pay the fees. Moore has never provided any explanation for this delay. 

Permitting equitable tolling in this situation would in essence provide Moore with the 

very indefinite tolling that we took pains in Brennan to prevent.

We decline to remand for consideration of Rule 60(b) relief for much the same 

reason. Moore’s filing-related correspondence consisted of little more than a bare request 

to pay the fees and proceed with his claims. Moore provided no explanation for seeking 

to do so almost two years later, let alone anything potentially warranting Rule 60(b) 

relief. Moreover, before Moore paid the remainder of the fees, the District Court 

expressly informed him that he could file a new complaint after paying the remaining 

fees but that his original claims would “likely” be barred by the statute of limitations. 

Moore nevertheless paid the remaining fees and filed a new complaint. Moore has not 

shown any basis for Rule 60(b) relief under these circumstances.

III.

For these reasons, we will affirm the judgment of the District Court.