The opinion of the court was delivered by: SEAN McLAUGHLIN, District Judge
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
Leopold*fn1 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 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.*fn2 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 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
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.
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
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