UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

__________________________________________

:

JAMES PATYRAK , :

:

Plaintiff, : Civil No. 10-6800 (FLW)

:

v. : MEMORANDUM

: OPINION

PTLM. TIMOTHY APGAR , et al., :

:

Defendants. :

__________________________________________:

This matter having been opened to the Court by way of motion of Richard Guss,

Esq., counsel for Defendants Ptlm. Timothy Apgar, Ptlm. Cialone, Ptlm. Dendis, and

Township of Raritan, Police Department (collectively, “Raritan Defendants”), moving to

dismiss Plaintiff’s Complaint, pursuant to Fed. R. Civ. P. 12(c); it further appearing that

Vito Gagliardi, Esq., counselforDefendantsBoroughofFlemington Police Department and

Ptlm. Jeffrey Austin (collectively, “Flemington Defendants”), (all defendants collectively

referred to as “Defendants”), also move to dismiss Plaintiffs’ Complaint; it appearing that:

1. According to the instant complaint, Plaintiff initially commenced an excessive

force action, under 42 U.S.C. § 1983, in the Superior Court of New Jersey, Law Division,

Hunterdon County, Docket No. HNT-L-241-03, against all the defendants named in this

suit, on May 8, 2003. Compl., ¶ 3. The complaint revolved around an incident that took

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place on or about May 9, 2001. Thereafter, on June 30, 2003, the suit was removed to the

District of New Jersey and was assigned Docket No. 03-3127. Id. at ¶ 4.

2. Sometime after the suit was removed, criminal charges relating to the underlying

suit were brought against Plaintiff. See id. at ¶ 5. According to the instant complaint, in

or about December 2003, the parties stipulated that Plaintiff could dismiss his suit without

prejudice in light of the criminal charges filed against him. Id.

3. The Magistrate Judge presiding over the suit at that time, subsequently issued an

order titled “Order Administratively Dismissing Case,” (“Order”), which stated, in

pertinent part:

It appearing that the Plaintiff in this case has been charged in

a criminal case entitled State vs. Patyrak, . . . and the facts in

the criminal case relate to the incident which is the subject of

this lawsuit; and it further appearing that Plaintiff cannot

respond to certain discovery requests in this matter without

prejudicing his Fifth Amendment rights; and it appearing that

the resolution of the case of State v. Patyrak may resolve some

or all of the issues in this litigation . . . [it is] ORDERED that the

Clerk shall administratively terminate this action . . . without

prejudice to the right of the parties to reopen the proceedings

for good cause shown . . . 

Patyrak v. Agar, et al., Docket No. 03-cv-3127 (SRC) (Docket Entry No. 6) (emphasis added)

at 1. 

1

The order was filed on April 22, 2004, although the text of the order is

1

apparently mistakenly dated April 21, 2003 as opposed to April 21, 2004. For purposes of

these motions, the Court will use April 21, 2004 as the operative date of the order.

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4. Importantly, the Judge further ordered that “the entry of this Order of

Administrative Dismissal shall not grant to the Defendants the right to assert a defense of

Statute of Limitations by virtue of the administrative Dismissal, except to the extent that

the facts supporting the defense existed prior to the Administrative Dismissal ....” Id. at 2. 

The order did not include a date or time frame by which Plaintiff was to seek to reopen the

proceedings.

5. Thereafter, on December 29, 2010, Plaintiff filed the instant complaint in this

Court, in lieu of seeking permission to reopen his prior civil proceeding docketed as 03-cv3127.

6. Defendants now move to dismiss the instant complaint, arguing that the

applicable two-year statute of limitations bars Plaintiff’s Complaint and that the filing of

a new complaint was not the proper means of complying with the Order Administratively

Dismissing Case issued in the prior action. 

7. The standard that a court applies on a motion for judgment on the pleadings

pursuant to Rule 12(c) is the same standard that a court applies in deciding a motion to

dismiss pursuant to Rule 12(b)(6). Turbe v. Government of Virgin Islands, 938 F.2d 427, 428

(3d Cir. 1991). In reviewing a motion to dismiss for failure to state a claim under 12(b)(6),

a Court must take all allegations in the complaint as true, viewed in the light most

favorable to the plaintiff “and determine whether, under any reasonable reading of the

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complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d

224, 233 (3d Cir. 2008) (citation and quotations omitted). 

8. The statute of limitations applicable to excessive force section 1983 actions against

New Jersey actors is two years, Large v. County of Montgomery, 307 Fed.Appx. 606, 607

(3d Cir. 2009), based on New Jersey’s personal injury statute.

9. As an initial matter, the Court notes that it is not clear exactly when Plaintiff’s

criminal proceedings concluded. Plaintiff submitted court records from one of his criminal

proceedings indicating that the proceeding was dismissed and initially downgraded from

a criminal court matter to a municipal court matter on September 22, 2004. See Patyrak

Cert., Exh. E (J. Mahon Order). The Flemington Defendants, further, submitted court 2

records suggesting that all criminal matters were resolved sometime between September

2004 and November 2008, with the last criminal matter being dismissed by November 6,

2008. See Bauknight Cert., Exh. E. While the state court records are not entirely clear, on 2

their face, as to the November 2008 date, in light of Plaintiff’s pro se status, the Court gives

Plaintiff the benefit of the doubt by considering this latter most date as the date upon which

The Court may consider these court records on a motion to dismiss. Lum v. 2

Bank of America, 361 F.3d 217, 222 n.3 (3d Cir. 2004). Plaintiff submitted additional

exhibits, ranging from a claim letter from the Borough of Flemington to letters from his

criminal attorney regarding the status of the criminal proceeding. Because these

documents are not public records, and the complaint does not rely upon them, the Court

may not consider them here. Id.

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his criminal proceedings concluded.

10. Although the plain text of the Order Administratively Dismissing Case explicitly

states that it does “not grant to the Defendants the right to assert a defense of Statute of

Limitations by virtue of the administrative Dismissal, except to the extent that the facts

supporting the defense existed prior to the Administrative Dismissal ....”, Order

Administratively Dismissing Case at 2, Defendants argue that more than two years have

expired since Plaintiff’s criminal proceedings concluded on November 6, 2008. In their

view, if the statute was tolled during the criminal proceedings until November 6, 2008, and

even allowing Plaintiff the benefit of a full two years from that date, as opposed to

deducting from that two years any portion of the limitations period that already expired

before he instituted the 2003 suit, the two-year limitation period should have expired on

November 6, 2010, yet Plaintiff’s Complaint was not filed until December 29, 2010. 

Moreover, Defendants further argue, Plaintiff did not comply with the terms of the order

because he filed a new complaint as opposed to seeking to reopen the prior civil

proceeding.

11. It is clear that Plaintiff did not comply with the Order Administratively

Dismissing Case because he filed a new complaint. However, it would elevate form over

substance to dismiss the instant complaint solely based upon that procedural infirmity. 

12. A proper reading of the Magistrate Judge’s ruling is that the time until the

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criminal proceedings concluded would be excluded from any statute of limitations

calculations. Once those proceedings concluded,the basis for the Judge’s ruling—to ensure

that Plaintiff did not have to waive his Fifth Amendment rights in order to comply with his

discovery obligations—was no longer applicable, and there was no impediment to him

pursuing his civil claims and fully participating in the discovery process. Thus, the clock

began to run again when the criminal proceedings ended on November 6, 2008. 

13. For this reason, it would not be a reasonable construction of the Order that the

Defendants could never raise a statute of limitations offense, no matter how long Plaintiff

delayed in re-filing his claim. This would run counter to the key policies of statutory

limitations periods, which are, inter alia, to “create desirable security and stability in

humanaffairs by fostering eventual repose, and to spare the courts from the burden of stale

claims.” Jaworowski v. Ciasulli, 490 F.3d 331, 334 (3d Cir. 2007) (quoting Galligan v.

Westfield Centre Service, Inc., 82 N.J. 188, 412 A.2d 122 (1980)) (internal alterations and

quotation marks omitted). 

14. While the Court appreciates that Plaintiff relied upon the Order to wait until his

criminal proceedings concluded before re-instituting his civil suit, he has not explained

why it took him more than two years from the conclusion of the criminal proceedings to

file the instant complaint. In addition, Plaintiff’s claims revolve around an incident that

took place on or about May 9, 2001. To consider these claims over ten years later would

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run counter to the policy of sparing the courts from the burden of stale claims. 

Furthermore,theDefendants would be prejudiced by having to defendagainst suchclaims.

See Bell Atlantic-Pennsylvania, Inc. v. Pennsylvania Public Utility Com'n , 273 F.3d 337, 346

(3d Cir. 2001) (“Limitations periods are designed to foreclose the potential for inaccuracies

and unfairness brought about by a finding of liability based on stale evidence.”) 

Accordingly, because Plaintiff did not file the instant complaint within two years of the

conclusion of his criminal proceeding, his complaint must be dismissed. An appropriate

Order will accompany this Opinion.

/s/ Freda L. Wolfson 

 Freda L. Wolfson, U.S.D.J. 

Dated: November 29, 2011

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