Opinion
01 CIV. 3635 (DLC)
March 1, 2002
Vincent Warren, pro se 01A3241 Green Haven Correctional Facility Drawer B Stormville, New York 12582-0010
For Defendants Robert Altieri, Robert Depaulis, and N.Y.P.D. 47th Police Dep't: Muriel Goode-Trufant Assistant Corporation Counsel City of New York Law Department 350 Jay Street Brooklyn, New York 11201-2908
OPINION AND ORDER
Plaintiff Vincent Warren ("Warren") brings this action pursuant to 42 U.S.C. § 1983, against defendants Robert Altieri ("Altieri"), Robert Depaulis ("Depaulis"), and N.Y.P.D. 47th Police Department, seeking redress for the defendants' alleged sexual and verbal assault of plaintiff. Defendants move to dismiss the complaint as barred by the applicable statute of limitations. For the reasons that follow, the motion is granted.
BACKGROUND
Plaintiff filed his complaint on March 1, 2001. The facts alleged in the complaint include the following. On February 28, 1998, Warren was placed in the back of a detective car, driven by defendant Altieri, who was accompanied by defendant Depaulis. Warren's hands and feet were cuffed, and his handcuffs were attached to a chain around his waist. Defendants Altieri and Depaulis were transporting Warren from the Lackawanna County jail in Pennsylvania to the Bronx, New York, where he was wanted in connection with an outstanding warrant. Warren alleges that on the way from Pennsylvania to the Bronx, defendants Altieri and Depaulis stopped the car at Altieri's house and sexually and verbally assaulted him. The injuries alleged by plaintiff include emotional suffering and unlawful imprisonment.
The complaint indicates that Warren signed it on March 1, 2001. This Court assumes that he gave the complaint to prison officials on the date of signature. See Johnson v. Coombe, 156 F. Supp.2d 273, 277 (S.D.N.Y. 2001). The date the complaint was given to prison officials for mailing is considered the filing date pursuant to the prison mailbox rule. See Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999); Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), modified on other grounds, 25 F.3d 81 (2d Cir. 1994). Accordingly, March 1, 2001, constitutes the filing date of the complaint for purposes of the limitations period. The complaint was received by the Pro Se Office for this District on March 9, 2001.
The defendants have noted that police records indicate that Altieri and Depaulis traveled to Pennsylvania on February 26, 1998.
The charges against Warren in the Bronx were subsequently dismissed in August of 1998.
On November 1, 2001, plaintiff filed an Amended Complaint, alleging the same essential facts as in the first complaint, but in greater detail. Warren added that following the incident described above, Altieri and Depaulis made "threatening faces" at him each time he appeared in court, asked his lawyer if they could speak with him alone, and "framed [him] on a case." Warren has not provided the dates on which the defendants' alleged courtroom behavior took place, nor any specific factual allegations regarding his alleged "framing." Although the timing is not made clear in the amended complaint, Warren further alleges that the defendants asked him to write a statement against his interest that would reflect favorably with two pending charges in Pennsylvania.
Defendants filed this motion to dismiss on November 7, 2001. Subsequently, Warren moved to file a Second Amended Complaint. The Second Amended Complaint adds that on March 25, 1999, Altieri and Depaulis picked Warren up from the "120th Police Department" on Staten Island, and transported him to the "47th Police Department." During this trip, Warren alleges that Altieri threatened him before proceeding to and at the station. According to Warren, Altieri admitted during testimony given at Warren's subsequent criminal trial, that he had taken Warren to his house, made him lie on the floor of the car, and deceived him into a confession. Finally, Warren alleges that the acts described in the Second Amended Complaint "represent a pattern of incidents" of misconduct by the defendants. The defendants have opposed Warren's motion to file a Second Amended Complaint.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6). Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must "accept as true all allegations in the complaint," Hayden v. County of Nassau, 180 F.3d 42, 47 (2d Cir. 1999), and "draw all reasonable inferences in the plaintiff's favor." Jackson Nat'l Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action. Where a party is proceeding pro se, the court must "construe [the] pleadings broadly, and interpret them to raise the strongest arguments that they suggest." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (citation omitted).
Warren's Section 1983 claim is governed by New York's three-year statute of limitations for personal injury actions, as well as the state's tolling rules. Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001). Federal law determines when the limitations period begins to accrue. Id. at 41. The claim accrues when the plaintiff "knew or had reason to know of the injury serving as the basis for his claim." Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999). Based upon the allegations in the complaint, Warren knew or should have known of his injury on February 28, 1998. Accordingly, his March 1, 2001 claim for relief under Section 1983 based on the February 28 incidents is time barred.
Warren argues that his claim should not be dismissed as time barred because his cause of action under Section 1983 did not accrue until the favorable termination of the charge for which he was in custody. Only certain causes of action — those which would necessarily imply the invalidity of a conviction if they were successful — do not accrue until the dismissal of a criminal prosecution. Covington v. New York City, 171 F.3d 117, 124 (2d Cir. 1999). Warren's claim of sexual abuse and threats is not such a claim.
Warren also argues that the allegations in the Amended Complaint and Second Amended Complaint establish a pattern of conduct, such that the limitations period should run from the date of the most recent violation. The continuing violation doctrine "is usually employed where there is a series of continuing wrongs and serves to toll the running of a period of limitations to the date of the commission of the last wrongful act." Selkirk v. State of New York, 671 N.Y.S.2d 824, 825 (3d Dep't 1998); see also Neufeld v. Neufeld, 910 F. Supp. 977, 982 (S.D.N.Y. 1996); Thomas v. New York City, 814 F. Supp. 1139, 1153 (E.D.N.Y. 1993); Boland v. State, 30 N.Y.2d 337 (1972). A continuing violation exists where "specific and related" instances of abuse are alleged and those instances are "sufficiently repetitious" to establish a pattern of activity. Fitzgerald v. Henderson, 251 F.3d 345, 362 (2d Cir. 2001) (federal law). The continuing violation exception does not apply, however, where those acts are "so `isolated in time from each other or from the timely allegations'" to break any alleged pattern of conduct.Id. at 359 (citation omitted)
Warren has alleged that the following acts constitute evidence of a pattern of conduct by the defendants violating his civil rights: the February 1998 incident of sexual assault, threatening behavior during plaintiff's court appearances, "framing" Warren in a December 1998 murder charge, and threatening behavior in March of 1999. These incidents are not sufficiently related nor repetitious to constitute a continuing wrong. Accordingly, Warren's Section 1983 claim stemming from the February 1998 incident is dismissed as time barred.
The incidents occurring after February 1998 that are described in amended pleadings are not time barred, but they appear to have been added solely to preserve the timeliness of the action. Those incidents that relate to the integrity of the plaintiff's criminal trial either do not state a cause of action (making threatening faces during court appearances; asking Warren's attorney for permission to speak to Warren alone), are too conclusory ("framing him on a case"), and/or do not identify any harm that resulted from the alleged wrongdoing. For instance, Warren has alleged that the defendants asked him to "write a statement against [himself] that would be in [his] favor with two pending charges in Pennsylvania." Based upon the chronology in Warren's amended complaint, this allegation about a statement against interest appears to be related to the charges pending in 1998, and Warren has noted that those charges were "dismissed."
Similarly, Warren's allegations in his Second Amended Complaint of abuse occurring in March of 1999 appear to have been added solely to state a pattern of conduct, and not to obtain any separate relief. Warren alleges that defendant Altieri threatened him verbally and pointed a gun at him while mimicking the sound of gunfire. Warren has alleged solely mental and emotional damages — damages which are not recoverable. 42 U.S.C. § 1997e(e) and (h); Jessamy v. Ehren, 153 F. Supp.2d 398, 402 (S.D.N.Y. 2001); see also Dawes v. Walker, 239 F.3d 489, 496-97 (2d Cir. 2001); Montero v. Crusie, 153 F. Supp.2d 368, 378 (S.D.N.Y. 2001);Hudson v. Greiner, No. 99 Civ. 12339 (LAP), 2000 WL 1838324, at *4 (S.D.N.Y. Dec. 13, 2000); Birth v. Pepe, No. 98 Civ. 1291 (RR), 1999 WL 684162, at *2 (E.D.N.Y. July 21, 1999). Accordingly, it is unnecessary to determine whether any of the incidents described in the amended pleadings can state a separate cause of action, and if so, whether they can be pursued as amendments to a time-barred pleading.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss the complaint as time barred is granted. The Clerk of Court shall close the case.
SO ORDERED: