Purisima v. McBride

filED UNITED STATES DISTRICT COURT JUN 1 9 2012 FOR THE DISTRICT OF COLUMBIA Clerk, U.s. District Courts tor the Dist . & Bankruptcy net ot Columbia Anton Purisima, ) ) Plaintiff, ) ) v. ) Civil Action No. ) 12 0990 Andre McBride et al., ) ) Defendants. )

MEMORANDUM OPINION

This matter is before the Court on review of plaintiffs pro se complaint and application

to proceed in forma pauperis. The application will be granted and this action will be dismissed

as time-barred. See 28 U.S.C. § 1915(e)(2)(B) (requiring dismissal "at any time" of a complaint

that fails to state a claim upon which relief may be granted).

Plaintiff, a resident ofNew York, New York, has submitted a complaint for personal

injuries allegedly suffered on June 2, 2008, when plaintiff, while crossing the street in the

District of Columbia, was allegedly hit by defendant on a motorcycle. Compl. at 1. The instant

complaint is based on the same events underlying the nearly identical complaint this Court

dismissed on September 15, 2010, for plaintiffs failure to prosecute. See Compl., Purisima v.

McBride, 09-cv-1 065 (RMU).

Under District of Columbia law, a personal injury action must be brought within one or

three years of its accrual, depending on the facts ofthe case. See D.C. Code§ 12-301(4), (8).

Referring to the dismissed complaint, plaintiff states that "[t]his case is timely filed due to the

underlying case was filed on June 1, 2009 within one (1) year from the incident on June 2,

I \' (

2008." 1 Compl. ~ 6. But "under District of Columbia law, the pendency of an action involuntarily dismissed [with or] without prejudice does not operate to toll the running ofthe statute oflimitations." Dupree v. Jefferson, 666 F.2d 606,611 (D.C. Cir. 1981); see accord Me lara v. China North Industries, Corp., 658 F. Supp. 2d 178, 181 (D.D.C. 2009) ("plaintiff cannot assert an equitable tolling defense based on the timely filing of a claim that was later dismissed without prejudice"). Since "the outermost limit" under the District's statute of limitations was three years from plaintiffs accrual date of June 2, 2008, Dupree, 666 F.2d at 611, the instant complaint received more than four years later on June 4, 2012, comes too late. See id. ("In the case at bar, whatever the limitation period applicable, it was not arrested during pendency of appellant's first action which was involuntarily dismissed without prejudice for want of prosecution.") A separate Order of dismissal accompanies this Memorandum Opinion.

f_(L- SHudL United States District Judge

Date: June ~ h, 2012

1 Plaintiff also asserts that the limitations period was "tolled in the related social security case filing ... in U.S.D.C., Southern District ofNew York wherein the incident (motorcycle) was part of the case therein." Compl. ~ 6. Even if true, this Court is not bound by the rulings of judges in the Southern District of New York.