Opinion
Civil Action No. 9:18-CV-1232 (DNH/DEP)
04-16-2019
RENDELL ROBINSON, Plaintiff, v. JOHN SLAVEN, et al., Defendants.
APPEARANCES: FOR PLAINTIFF: [last known address]2 RENDELL ROBINSON, Pro Se 400 East 30th Street New York, NY 10016 FOR DEFENDANT: HON. LETITIA JAMES New York State Attorney General The Capitol Albany, New York 12224 OF COUNSEL: KONSTANDINOS D. LERIS, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: [last known address]
RENDELL ROBINSON, Pro Se
400 East 30th Street
New York, NY 10016 FOR DEFENDANT: HON. LETITIA JAMES
New York State Attorney General
The Capitol
Albany, New York 12224 OF COUNSEL: KONSTANDINOS D. LERIS, ESQ.
Assistant Attorney General DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
On March 25, 2019, I issued a report in which I recommended that the action be dismissed in its entirety, pursuant to Rule 41(b) of the Federal Rules of Civil Procedure, based upon plaintiff's failure to prosecute and to comply with this court's orders and local rules of practice. Dkt. No. 21. The day after that report was issued, however, the court received notification of plaintiff's new address, Dkt. No. 22, and the matter was returned to me to address the merits of defendants' motion via a text order issues on March 26, 2019. Dkt. No. 23. That text order, which was sent to the address plaintiff provided on March 26, 2019, was returned to the court as undeliverable on April 11, 2019. Dkt. No. 25.
ORDER, REPORT, AND RECOMMENDATION
This is a civil rights action brought pursuant to 42 U.S.C. §1983 by pro se plaintiff Rendell Robinson, a former New York State prison inmate who was at all relevant times in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), against three corrections officers employed by the DOCCS. In his complaint, plaintiff asserts that the three corrections officers violated his constitutional rights arising under the Eighth Amendment, based upon an incident that occurred on April 9, 2015 at the prison in which he was confined on that date.
In response to plaintiff's complaint, defendants have moved for dismissal of his claims pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that his claims are barred by the statute of limitations and that the claims cannot be saved by equitable tolling. In the alternative, defendants argue that plaintiff's complaint fails to state a claim of excessive force as to one of the corrections officers. For the reasons that follow, I recommend that defendants' motion, which plaintiff has not opposed, be granted. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's complaint, the contents of which have been accepted as true for purposes of the pending motion. See generally Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint."); see also Cooper v. Pate, 378 U.S. 546, 546 (1964). Portions of the background have also been derived from the exhibits attached to plaintiff's complaint, which may also properly be considered in connection with a dismissal motion. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991) ("[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference."); accord, Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993).
Plaintiff, a former New York State prison inmate, was previously confined to the Clinton Correctional Facility ("Clinton"), located in Dannemora, New York. Dkt. No. 1 at 4-5. On April 9, 2015, he was transported from that facility, via a five-hour van ride, to the Coxsackie Correctional Facility ("Coxsackie"), located in Coxsackie, New York, for medical treatment at the facility's Residential Medical Unit ("RMU"). Id. During that transport, plaintiff was restrained by the use of handcuffs, a waist chain, and leg irons. Id. at 4.
When plaintiff arrived at Coxsackie, the transporting officer from Clinton, defendant David Gumlaw, a corrections officers, removed plaintiff's waist chain and leg irons, but did not remove the handcuffs. Dkt. No. 1 at 5. As plaintiff and C.O. Gumlaw waited in the inmate waiting room, plaintiff requested several times for his handcuffs be loosened. Id. at 5-7. C.O. Gumlaw denied the request and, upon becoming "upset" at plaintiff's third request, replaced plaintiff's waist chain. Id. at 6-7.
C.O. Gumlaw and defendant Michael Mussen, Jr., a corrections officer assigned to Clinton, escorted plaintiff to a small room off the "back hallway of Coxsackie R.M.U." Dkt. No. 1 at 8. At this point, defendant John Slaven, a corrections sergeant stationed at Coxsackie, appeared, instructed the other officers to kill plaintiff, and then "walked away to the same direction he had approached [plaintiff] from." Id. at 10, 12; cf. id at 19-20 (noting that Sgt. Slaven denied being "present during the beginning of this incident").
C.O. Mussen and Gumlaw, along with the other unidentified DOCCS corrections officers, proceeded to assault plaintiff. Dkt. No. 1 at 10-11. Following the assault, during which he was slapped, punched, kicked, thrown to the ground, and struck with a wooden baton, plaintiff required medical attention for his injuries. Id. at 10-11, 15-16. As relief, plaintiff seeks, inter alia, damages in the amount of $500,000. Id. at 37.
II. PROCEDURAL HISTORY
This action was initiated by the submission of a forty-page complaint plus exhibits, which was received by the court on October 17, 2018, accompanied by a motion for leave to proceed in forma pauperis. Dkt. Nos. 1-3. By decision and order dated December 3, 2018, District Judge David N. Hurd granted plaintiff permission to proceed without prepayment of fees and reviewed the sufficiency of the complaint in accordance with 28 U.S.C. §§ 1915(e), 1915A. Dkt. No. 4. Judge Hurd also ordered the dismissal of certain of plaintiff's claims, but determined that plaintiff's Eighth Amendment excessive force and failure to intervene claims required a response from defendants. Id.
The complaint was signed on October 7, 2018 and accompanied by a cover letter dated October 14, 2018. Dkt. No. 1 at 40; Dkt. No. 1-2. The envelope containing those materials was postmarked on October 15, 2018. Dkt. No. 1-3.
On February 4, 2019, two of the defendants named in plaintiff's complaint moved to dismiss plaintiff's claims against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 10. In their motion, defendants argued that plaintiff's claims are time-barred, and further that plaintiff's complaint fails to allege facts sufficient to establish a plausible excessive force claim against Sgt. Slaven. See generally Dkt. No. 10.
By letter dated February 24, 2019, plaintiff advised that he did not intend to file a response to the motion. Dkt. No. 13 at 3. Following service of the summons and complaint upon the third named defendant, the court granted counsel's request for that defendant to join in the pending motion to dismiss. Dkt. Nos. 17, 18. The matter is now ripe for determination and has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b); see also Dkt. No. 23.
III. DISCUSSION
A. Legal Standard Governing Motion to Dismiss
It is well-settled that "[a] motion to dismiss on the basis that an action is barred by the statute of limitations is analyzed under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1)." Garner v. DII Indus., LLC, 08-CV-6191, 2010 WL 456801, at *1 (W.D.N.Y. Feb. 4, 2010) (citing Ghartey v. St John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)). A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard that, though unexacting, "demands more than an unadorned, the-defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.' " Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. Iqbal, 556 U.S. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). The tenet that a court must accept as true all of the allegations contained in a complaint does not apply, however, to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (alterations omitted) (quoting Twombly, 550 U.S. at 570).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." (internal quotation marks omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (internal quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
B. Statute of Limitations and Equitable Tolling
Defendants argue that plaintiff's claims are barred by the statute of limitations applicable to claims brought pursuant to 42 U.S.C. § 1983 in New York. Dkt. No. 10-1 at 6-9. While they acknowledge that plaintiff is entitled to the benefit of tolling of the statute of limitations during the pendency of grievance proceedings necessary to satisfy plaintiff's exhaustion of remedies requirement, they argue that even when a toll is applied, his claims are still time-barred. Id. at 8-9. Although plaintiff declined to respond to defendants' motion, see Dkt. No. 13 at 3, he addressed this issue in his complaint, contending that his action was properly commenced as a result of equitable tolling. Dkt. No. 1 at 26-27.
1. Generally
Because the statute of limitations is an affirmative defense, it is axiomatic that " '[c]omplaints need not anticipate, or attempt to plead around, potential affirmative defenses.' " Cooper Crouse-Hinds, LLC v. City of Syracuse, 16-CV-1201, 2018 WL 840056, at *4 (N.D.N.Y. February 18, 2018) (alteration in original) (quoting High Falls Brewing Co., LLC v. Boston Beer Corp., 852 F. Supp. 2d 306, 310 (W.D.N.Y. 2011)). "Requiring [the] plaintiff[] to allege in a complaint facts sufficient to overcome a statute of limitations affirmative defense would shift the burden to raise and prove the affirmative defense from defendants, as the burden is allocated and imposed by Rule 8(c)(1) of the Federal Rules of Civil Procedure, to [the] plaintiff[]." Kattu v. Metro Petroleum, Inc., No. 12-CV-54, 2013 WL 4015342, at *4 (W.D.N.Y. Aug. 6, 2013).
The "applicable statute of limitations for [section] 1983 actions arising in New York requires claims to be brought within three years." Pinaud v. Cty. of Suffolk, 52 F.3d 1139, 1156 (2d Cir. 1995); accord Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir. 2004) ("The statute of limitations applicable to claims brought under . . . [section] 1983 in New York is three years."). A section 1983 cause of action accrues " 'when the plaintiff knows or should know of the injury that is the basis of the cause of action.' " Covington v. City of New York, 916 F. Supp. 282, 285 (S.D.N.Y. 1996) (quoting Woods v. Candela, 13 F.3d 574, 575 (2d Cir. 1994)). In determining when a particular claim accrues, a court must focus on when a "plaintiff becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action." Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980).
The Second Circuit has held that a prisoner is entitled to equitable tolling of claims brought under the Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), reasoning that prisoners would otherwise face a "catch-22" of either filing an action prior to exhausting all administrative remedies and risk dismissal for failure to exhaust, or wait until all administrative remedies are exhausted and risk dismissal based on untimeliness. Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011). Under this rule, the equitable tolling period begins to run when a plaintiff first raises his administrative claim, and ends when the plaintiff's administrative remedies are deemed exhausted. Id. at 324; see also Povoski v. Lacy, No. 9:14-CV-97, 2017 WL 9511094, at *6-*7 (N.D.N.Y. Dec. 13, 2017) (Hummel M.J.), report and recommendation adopted by 2018 WL 547392 (N.D.N.Y. Jan. 17, 2018) (Sannes, J.). The statute of limitations, however, is only tolled during the period in which a prisoner is "actively exhausting" his administrative remedies. Gonzalez, 651 F.3d at 322 (citing Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Clifford v. Gibbs, 298 F.3d 328, 332 (5th Cir. 2002); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000)). The statute of limitations is not tolled during the period between the accrual of the claims and when the plaintiff began the administrative remedy process. Gonzalez, 651 F.3d at 324 (citing Brown, 209 F.3d at 596).
Finally, because the pro se plaintiff was incarcerated at the time of commencement, the "prisoner mailbox rule" applies to determine the date the action was commenced. Under this rule, a pro se litigant's pleading is deemed filed on the date that the prisoner delivers the pleading to prison officials for filing. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir.1993) (citing Houston v. Lack, 487 U.S. 266, 270 (1988)). This rule "is justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court." Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001); see also Garraway v. Broome Cty., N.Y., No. 5:03-cv-0681, 2006 WL 931729, at *3 (N.D.N.Y. Apr. 7, 2006) (McAvoy, J.).
In cases where it is unclear when the inmate conveyed a complaint or petition to prison officials, the "date of delivery is presumed to be the date that the inmate signs his or her complaint." Brown v Smithem, No. 15-CV-1458, 2017 WL 1155825, at *4 (Feb. 28, 2017) (Hummel, M.J.) report and recommendation adopted by 2017 WL 1155827 (N.D.N.Y. Mar. 27, 2017) (Sannes, J.) (citing Johnson v. Connolly, No. 9:07-CV-0158, 2008 W L 724167, at *7 (N.D.N.Y. Mar. 17, 2008) (Kahn, J., adopting report and recommendation of Lowe, M.J.)); see also Shaw v. Superintendent, Attica Corr. Facility, No. 03-CV-0610, 2007 WL 951459, at *3 n.3 (N.D.N.Y. March 28, 2007) (McCurn, J.). However, this presumption does not apply when there is evidence that the complaint was not sent for filing, or mailing, until a later date. See Brown, 2017 WL 1155825, at *4 (holding that the date of filing was the date the cover letter, not the date the complaint was signed).
2. Analysis
Plaintiff's cause of action accrued on April 9, 2015, the date of the incident forming the basis of plaintiff's excessive force claim. Dkt. No. 1 at 4; see generally Merrihew v. Town of Ulster, No. 04-CV-1027, 2005 WL 1660113, at *2-*3 (N.D.N.Y. July 7, 2005) (Kahn, J.) (explaining that plaintiff's excessive force claim accrued on the date the conduct and harm underlying his claim occurred). Plaintiff's complaint was signed October 7, 2018, and it was accompanied by a cover letter dated October 14, 2018. Dkt. No. 1 at 40; Dkt. No. 1-2. The complaint was received by the court on October 17, 2018, in an envelope that was postmarked October 15, 2018. Dkt. No. 1-3. Because it is not outcome determinative, I will assume, without deciding, that plaintiff commenced this action on October 7, 2018. Dkt. No. 1 at 40.
In order for plaintiff's claims to be considered timely, the three-year statute of limitations must have been tolled for at least 182 days, since plaintiff filed his complaint on October 7, 2018 and, absent tolling, the limitations period expired on April 9, 2018 (April 9, 2018 to and including October 7, 2018 = 182 days). Accordingly, the length of that exhaustion period—that is, the period of time between when plaintiff initiated his administrative claims and when he exhausted those claims—must be at least 182 days in order to salvage his claims.
Following the incident on April 9, 2015, plaintiff filed an administrative grievance pursuant to the DOCCS Inmate Grievance Program ("IGP") on April 28, 2015, nineteen days after the alleged assault. Dkt. No. 1 at 26. The statute of limitations was not tolled "during the period in between the accrual of those claims and when [plaintiff] began the administrative remedy process." Gonzalez, 651 F.3d at 324. That is, the statute of limitations ran for eighteen days (April 9, 2015 to and excluding April 28, 2015 = 18 days) prior to April 28, 2015—the date upon which plaintiff first raised his administrative claims and which demarcates the commencement of the equitable tolling period. See Povoski, 2017 WL 9511094, at *6-*7 (explaining that the equitable tolling period begins when the plaintiff first raises his administrative claim).
Because plaintiff's grievance complained of employee harassment, it bypassed the first step of the IGP, where the grievance would have been reviewed by the inmate grievance resolution committee ("IGRC"), and was forwarded directly to the superintendent of Clinton for review. See 7 N.Y.C.R.R. § 701.8(b), (c). On May 20, 2015, the superintendent issued an adverse determination on plaintiff's grievance. Dkt. No. 1-1 at 2-4. On May 26, 2015, plaintiff appealed the superintendent's determination to the DOCCS Central Office Review Committee ("CORC"), the third and final step of the IGP. See 7 See N.Y.C.R.R. § 701.5(d)(1)(i).
That body upheld the superintendent's determination on October 21, 2015. Dkt. No. 1-1 at 6; see also Dkt. No. 1 at 27. Although there is no evidence with respect to when plaintiff received that determination, in the complaint, plaintiff agrees that October 21, 2015, the date upon which the CORC issued its decision, represents the end of the equitable tolling period. Dkt. No. 1 at 27. As a result, the statute of limitations was tolled for the 177-day period that plaintiff was in the process of "actively exhausting" his administrative remedies (April 28, 2015 to and including October 21, 2015 = 177 days). See Gonzalez, 651 F.3d at 322 n.2.
Therefore, because the statute of limitations period was equitably tolled for 177 days—but three years and the time between April 9, 2015 and October 7, 2018 is 182 days over three years—this action is time-barred by the applicable statute of limitations period. Although I am mindful District Judge Hurd flagged the statute of limitations issue, but recommended that plaintiff's claims proceed "[o]ut of an abundance of caution, and mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed," Dkt. No. 4 at 8, with the benefit of defendants' additional briefing on this issue, and now that plaintiff has been given an opportunity to be heard regarding the matter, I respectfully recommend that plaintiff's complaint be dismissed as time-barred.
In light of this recommendation, I have not addressed defendants' alternative argument with respect to defendant Slaven. Dkt. No. 10-1 at 9-10.
III. SUMMARY, ORDER, AND RECOMMENDATION
Despite the application of an equitable tolling period, plaintiff commenced this action outside the three-year statute of limitations period that is applicable to claims brought under section 1983 in New York. It is therefore hereby respectfully
RECOMMENDED that defendants' motion for dismiss (Dkt. No. 10) be GRANTED, and plaintiff's complaint ( Dkt. No. 1) be DISMISSED in its entirety.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993). It is hereby
If you are proceeding pro se and are served with this order, report, and recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the order, report, and recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
ORDERED that the clerk of the court is respectfully directed to modify the court's records to change defendant D. Gumlaw to "David Gumlaw," and defendant Shaven to "John Slaven," as set forth in footnote number one; and it is further
ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: April 16, 2019
Syracuse, New York