NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 22-3313 __________
HENRY SAYE GOFAN JUNIOR, Appellant
v.
DARLENE J. PEREKSTA; THOMAS M. BROWN; EDWARD BELMOUNT; KATHLENE REDPATH PEREZ; MARK A. FURY; ALSON RIDDICK; VERNON CLASH; STEPHEN SLAVEN; STEVEN ELMER; LAURA ALLISON YEADE; DAVIT L. SOFFER; JESSICA LYONS; KEVIN B. STARKEY; ANTHONY COWELL; JOHN A. TONELLI; WILLIAM B. ZIFF; KEVIN MITCHELL; M. DILLION; N. BOTTERIE; R. SANTIAGO PATERSON; CORRECTION OFFICER REESE; CHARLES ELLIS; CHARLES PETERS, a/k/a PETERSON; S. H. DAVIS; PAMELA L. SAUNDERS, a/k/a MS. MARSHALL; LAURA KOTARBA; CORRECTION OFFICER C. JOHNSON; SGT. VICTOR; SUE REGAN; KATHLENE PETRUCCI; SKYLAR WEISSMAN; STACEY GUERDS; CYNTHA LIECARDO; ANGELO J. ONOFRI; WILL MULRYNE; KELVIN SMITH; CORRECTION OFFICER CLARK; TODD WILSON; RAUA SCOTT; WALT; CORRECTION OFFICER MCMILLION; LT. OLIVER; MS. WHYTE; LT. FARAVONI; SGT. MARZA, sued in their individual, official, and unofficial capacity and under color of the state ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-16-cv-08559) District Judge: Honorable Peter G. Sheridan ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) August 16, 2023 Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed: October 17, 2023) ___________
OPINION* ___________
PER CURIAM
Appellant Henry Saye Gofan, Jr., a pro se litigant proceeding in forma pauperis,
appeals from the District Court’s judgment in favor of the Defendants. For the following
reasons, we will affirm.
I.
Bringing his case under 42 U.S.C. 1983, Gofan alleged several claims, including:
false arrest, unlawful seizure in the form of blood withdrawn without a warrant, excessive
force, malicious prosecution, withholding of exculpatory evidence, denial of access to the
courts, conspiracy, and fraudulent concealment. Following a round of motions, the
District Court dismissed these claims. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
under § 1915(e)(B)(ii) with respect to the grant of summary judgment. See Tri-M Grp.,
LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 2011); see also Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 265 (3d Cir. 2014). We review the facts in the light most favorable
to the non-moving party. See Burns v. Pa. Dep’t. of Corr., 642 F.3d 163, 170 (3d Cir.
2011). We may affirm on any basis supported by the record. See Murray v. Bledsoe,
650 F.3d 246, 247 (3d Cir. 2011). “It is well settled that an appellant’s failure to identify
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 or argue an issue in his opening brief constitutes [forfeiture] of that issue on appeal.”
U.S. v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). See also In re Wettach, 811 F.3d 99,
115 (3d Cir. 2016) (concluding that appellants forfeited arguments that were not
developed in their opening brief). “[W]e will not consider new claims for the first time
on appeal.” In re Reliant Energy Channelview LP, 594 F.3d 200, 209 (3d Cir. 2010).
II.
Gofan presents no arguments in his opening brief challenging the District Court’s
judgment; instead, he makes conclusory statements and repeats the contentions found in
his complaint. Consequently, affirming the judgment of the District Court is warranted
on this basis alone. However, in his reply brief, Gofan raises two central issues. Because
Gofan is an inexperienced pro se litigant and out of an abundance of caution, we will
address these issues, which relate to the following facts of the case.
On May 6, 2014, Gofan was driving a vehicle while intoxicated and without a
license. He noticed a police vehicle behind him, and turned into an alleyway. Defendant
Steven Elmer, a police officer, approached Gofan’s vehicle and asked him to exit the
vehicle, but Gofan alleged in his complaint that he was unable to exit the vehicle because
the door was stuck. Gofan alleged that Elmer used excessive force to remove him from
the vehicle, sprayed him with an aerosolized irritant, handcuffed him, and took him to a
hospital. Since Gofan refused to give his name or submit to a breathalyzer test,
fingerprints were taken. Elmer obtained a warrant from a local judge to draw blood from
Gofan, and subsequently did so. Gofan alleged that this constituted an unlawful seizure.
The District Court concluded that Elmer had probable cause—and therefore qualified
3 immunity—as to Gofan’s false arrest claim, and that Gofan’s claims regarding his
fingerprinting were meritless because he was properly seized. The District Court also
determined that Gofan’s remaining claims against Elmer were barred by the statute of
limitations.
“In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of
limitations for personal injury.” Sameric Corp. of Delaware, Inc. v. City of Philadelphia,
142 F.3d 582, 599 (3d Cir. 1998). In New Jersey, plaintiffs are thus subject to a two-year
statute of limitations. “A section 1983 cause of action accrues when the plaintiff knew or
should have known of the injury upon which its action is based.” Id. Gofan’s claims
arose from an incident that occurred on May 16, 2014; therefore, he had until May 16,
2016, to file his complaint, but did not file it until November 16, 2016. Although
equitable tolling of statutes of limitation “may be appropriate… where the plaintiff in
some extraordinary way has been prevented from asserting his or her rights,” see
Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (quoting Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)), Gofan failed to present
a convincing reason for equitable tolling. Thus, his claims are time-barred. And since
Elmer raised the statute of limitations defense in his answer, he did not waive it. See Fed.
R. Civ. P. 8(c)(1). For these reasons, the District Court concluded that dismissal of these
claims was warranted. Gofan challenges that conclusion in his appellate reply brief, but
fails to present a cogent legal argument against it. Upon review, we conclude that
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________
No. 22-3313 __________
HENRY SAYE GOFAN JUNIOR, Appellant
v.
DARLENE J. PEREKSTA; THOMAS M. BROWN; EDWARD BELMOUNT; KATHLENE REDPATH PEREZ; MARK A. FURY; ALSON RIDDICK; VERNON CLASH; STEPHEN SLAVEN; STEVEN ELMER; LAURA ALLISON YEADE; DAVIT L. SOFFER; JESSICA LYONS; KEVIN B. STARKEY; ANTHONY COWELL; JOHN A. TONELLI; WILLIAM B. ZIFF; KEVIN MITCHELL; M. DILLION; N. BOTTERIE; R. SANTIAGO PATERSON; CORRECTION OFFICER REESE; CHARLES ELLIS; CHARLES PETERS, a/k/a PETERSON; S. H. DAVIS; PAMELA L. SAUNDERS, a/k/a MS. MARSHALL; LAURA KOTARBA; CORRECTION OFFICER C. JOHNSON; SGT. VICTOR; SUE REGAN; KATHLENE PETRUCCI; SKYLAR WEISSMAN; STACEY GUERDS; CYNTHA LIECARDO; ANGELO J. ONOFRI; WILL MULRYNE; KELVIN SMITH; CORRECTION OFFICER CLARK; TODD WILSON; RAUA SCOTT; WALT; CORRECTION OFFICER MCMILLION; LT. OLIVER; MS. WHYTE; LT. FARAVONI; SGT. MARZA, sued in their individual, official, and unofficial capacity and under color of the state ____________________________________
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 3-16-cv-08559) District Judge: Honorable Peter G. Sheridan ____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a) August 16, 2023 Before: HARDIMAN, PORTER, and FREEMAN, Circuit Judges
(Opinion filed: October 17, 2023) ___________
OPINION* ___________
PER CURIAM
Appellant Henry Saye Gofan, Jr., a pro se litigant proceeding in forma pauperis,
appeals from the District Court’s judgment in favor of the Defendants. For the following
reasons, we will affirm.
I.
Bringing his case under 42 U.S.C. 1983, Gofan alleged several claims, including:
false arrest, unlawful seizure in the form of blood withdrawn without a warrant, excessive
force, malicious prosecution, withholding of exculpatory evidence, denial of access to the
courts, conspiracy, and fraudulent concealment. Following a round of motions, the
District Court dismissed these claims. This appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review
under § 1915(e)(B)(ii) with respect to the grant of summary judgment. See Tri-M Grp.,
LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 2011); see also Blunt v. Lower Merion Sch.
Dist., 767 F.3d 247, 265 (3d Cir. 2014). We review the facts in the light most favorable
to the non-moving party. See Burns v. Pa. Dep’t. of Corr., 642 F.3d 163, 170 (3d Cir.
2011). We may affirm on any basis supported by the record. See Murray v. Bledsoe,
650 F.3d 246, 247 (3d Cir. 2011). “It is well settled that an appellant’s failure to identify
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 2 or argue an issue in his opening brief constitutes [forfeiture] of that issue on appeal.”
U.S. v. Pelullo, 399 F.3d 197, 222 (3d Cir. 2005). See also In re Wettach, 811 F.3d 99,
115 (3d Cir. 2016) (concluding that appellants forfeited arguments that were not
developed in their opening brief). “[W]e will not consider new claims for the first time
on appeal.” In re Reliant Energy Channelview LP, 594 F.3d 200, 209 (3d Cir. 2010).
II.
Gofan presents no arguments in his opening brief challenging the District Court’s
judgment; instead, he makes conclusory statements and repeats the contentions found in
his complaint. Consequently, affirming the judgment of the District Court is warranted
on this basis alone. However, in his reply brief, Gofan raises two central issues. Because
Gofan is an inexperienced pro se litigant and out of an abundance of caution, we will
address these issues, which relate to the following facts of the case.
On May 6, 2014, Gofan was driving a vehicle while intoxicated and without a
license. He noticed a police vehicle behind him, and turned into an alleyway. Defendant
Steven Elmer, a police officer, approached Gofan’s vehicle and asked him to exit the
vehicle, but Gofan alleged in his complaint that he was unable to exit the vehicle because
the door was stuck. Gofan alleged that Elmer used excessive force to remove him from
the vehicle, sprayed him with an aerosolized irritant, handcuffed him, and took him to a
hospital. Since Gofan refused to give his name or submit to a breathalyzer test,
fingerprints were taken. Elmer obtained a warrant from a local judge to draw blood from
Gofan, and subsequently did so. Gofan alleged that this constituted an unlawful seizure.
The District Court concluded that Elmer had probable cause—and therefore qualified
3 immunity—as to Gofan’s false arrest claim, and that Gofan’s claims regarding his
fingerprinting were meritless because he was properly seized. The District Court also
determined that Gofan’s remaining claims against Elmer were barred by the statute of
limitations.
“In actions under 42 U.S.C. § 1983, federal courts apply the state’s statute of
limitations for personal injury.” Sameric Corp. of Delaware, Inc. v. City of Philadelphia,
142 F.3d 582, 599 (3d Cir. 1998). In New Jersey, plaintiffs are thus subject to a two-year
statute of limitations. “A section 1983 cause of action accrues when the plaintiff knew or
should have known of the injury upon which its action is based.” Id. Gofan’s claims
arose from an incident that occurred on May 16, 2014; therefore, he had until May 16,
2016, to file his complaint, but did not file it until November 16, 2016. Although
equitable tolling of statutes of limitation “may be appropriate… where the plaintiff in
some extraordinary way has been prevented from asserting his or her rights,” see
Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997) (quoting Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)), Gofan failed to present
a convincing reason for equitable tolling. Thus, his claims are time-barred. And since
Elmer raised the statute of limitations defense in his answer, he did not waive it. See Fed.
R. Civ. P. 8(c)(1). For these reasons, the District Court concluded that dismissal of these
claims was warranted. Gofan challenges that conclusion in his appellate reply brief, but
fails to present a cogent legal argument against it. Upon review, we conclude that
Gofan’s claims against Elmer were time-barred, and therefore were properly dismissed
by the District Court.
4 Gofan also challenges in his reply brief the District Court’s conclusions regarding
the immunity of Elmer and the “Judiciary Defendants.” Gofan leaves the meaning of this
term unclear, and does not explain why the District Court’s conclusions should be
deemed erroneous. The District Court determined that Defendants Darlene J. Pereksta
and Thomas M. Brown had judicial immunity as judges that presided over Gofan’s
criminal case. See Stump v Sparkman, 435 U.S. 349, 355-56 (1978). The District Court
also concluded that Defendants John A Tonelli, a former executive director for the
Advisory Committee on Judicial Conduct; William B. Ziff, an attorney with the Office of
Attorney Ethics; Sue Regan, a trial court administrator; and Elmer in his official capacity
as a police officer were protected by absolute or qualified immunity. As employees of
the New Jersey court system, Tonelli, Ziff, and Regan were entitled to Eleventh
Amendment sovereign immunity. See Capogrosso v. Supreme Court of New Jersey, 588
F.3d 180, 185 (3d Cir. 2009). See also McArdle v. Tronetti, 961 F.2d 1083, 1084 (3d
Cir. 1992) (“At common law, persons functioning as integral parts of the judicial process
enjoyed absolute immunity from civil liability…. Similarly, the Supreme Court has held
that persons functioning as integral parts of the judicial process are immune from suits
under Section 1983.”). We assume that Pereksta, Brown, Tonelli, Ziff, and Regan are the
“Judiciary Defendants” to whom Gofan is referring in his reply brief. Upon review, we
perceive no error with the District Court’s rulings regarding these Defendants. And
regardless of immunity, claims against Elmer were time-barred, as noted above.
Accordingly, we will affirm the judgment of the District Court.