Opinion
No. 99-CV-6351Fe
September 30, 2002
DECISION AND ORDER
Preliminary Statement
Before the Court is defendants' motion to dismiss. (Docket #29). Oral argument was heard on April 12, 2002. Thereafter, defendants filed a supplemental motion to dismiss (Docket #44) which, after briefing, was argued on July 12, 2002. In accordance with the provisions of 28 U.S.C. § 636(c), the parties have consented to the jurisdiction of this Court for a resolution of all dispositive matters, including trial. (Docket #32).
Relevant Facts
On August 13, 1999, pro se plaintiff Domingo Borges (hereinafter Borges), initiated this civil rights lawsuit alleging that the defendants were deliberately indifferent to his medical needs. Plaintiff's original complaint named as defendants Ted Lax, a dentist at Southport Correctional Facility and "S. Sherlipolin," a dentist at Strong Memorial Hospital. The claims against S. Sherlipolin arose from dental treatment Borges received on August 19, 1998 during an outpatient visit at Strong Memorial Hospital.
Upon initial review of Borges' complaint, Senior District Judge John T. Elfvin dismissed the claims against Dr. Lax but allowed the claims against defendant S. Sherlipolin, DDS to go forward. Judge Elfvin ordered the U.S. Marshal to serve the summons and complaint upon Dr. Sherlipolin (Docket #3), but the Marshal was unable to locate an individual by that name at Strong Hospital. On September 17, 1999, the Marshal's office notified Borges of their inability to serve "S. Sherlipolin."
Thereafter, Borges amended his complaint to add Leo Brideau, an Administrator for Strong Memorial Hospital, E. Piatkowski, and John Doe and Jane Doe as party defendants. Borges identified John Doe as the dentist who treated him at Strong and Jane Doe as John Doe's female assistant. In July 2000, Judge William Skretny issued an Order allowing the claims against the newly named defendants to go forward. Recognizing plaintiff's difficulty in identifying John Doe and Jane Doe, Judge Skretny also directed the Marshal to serve the complaint on the Administrator of the Strong Memorial Hospital and directed the Administrator to identify John Doe and Jane Doe's true identities.
Specifically, Judge Skretny's Order read: "Thus, because sua sponte dismissal of Administrator Brideau would make it very difficult or impossible for plaintiff to discover the identity of the John and Jane Doe defendants at Strong Memorial Hospital, and in order to achieve the ends of justice, the Court will direct service of the complaint on Brideau and will also direct Brideau to identify for plaintiff the John and Jane Does who saw him at Strong Memorial Hospital on August 19, 1998 as soon as possible after the complaint has been served. When plaintiff learns the identity of the John and Jane Doe defendants, plaintiff must immediately apply to this Court for an order directing amendment of the caption and service of the summons and complaint on them." (internal citations omitted).
On August 3, 2000, the U.S. Marshal attempted service on Administrator Brideau but was unsuccessful. By letter dated August 31, 2000, Mr. Borges was notified of the Marshal's inability to serve the Administrator. On December 8, 2000, plaintiff filed a motion for appointment of counsel to assist him in identifying the dentist and his assistant. (Docket #11). In his motion, plaintiff documented his efforts to identify the defendants, including seeking the assistance of the Court's pro se law clerk and writing directly to Strong Memorial Hospital on more than one occasion seeking information regarding his dental treatment.
In a January 8, 2001 Decision and Order, Judge Charles J. Siragusa denied plaintiff's motion for appointment of counsel. (Docket #14). However, recognizing Borges' struggle to achieve service on the unidentified individual defendants, Judge Siragusa wrote:
Nevertheless, plaintiff describes in some detail his troubles trying to get service of the complaint on the administrator of Strong Memorial Hospital, which has been ordered by the Court so that the John and Jane Doe defendants may be identified and served (see Docket No. 7). Accordingly, because plaintiff identified this defendant as Leo Brideau solely because he believed that the administrator of Strong Memorial Hospital was named that, the Court hereby directs the revision of the caption to delete the name of Leo Brideau and to identify this defendant solely by his position-the Administrator of Strong Memorial Hospital. The Court further directs the U.S. Marshal to serve the Administrator of Strong Memorial Hospital immediately with a copy of the summons, amended complaint, July 19, 2000 order, and this order, and if the U.S. Marshal's attempt to serve him by mail is unsuccessful, to immediately thereafter serve the Administrator of Strong Memorial Hospital in person, with the cost of such service to be charged to the Hospital if plaintiff prevails in this action. The Administrator is directed to comply immediately with the directives of the July 19, 2000 order that he identify the Doe defendants. After the identity fo the Doe defendants has been disclosed, undisputed allegations that the administrator lacked personal involvement with ultimately suffice to dismiss that official from the case.
(Emphasis supplied).
Pursuant to Judge Siragusa's order, service by mail was attempted on January 26, 2001. Despite the lack of an acknowledgment of mail service, the Marshal's office inexplicably did not attempt to personally serve Strong Memorial Hospital until September 7, 2001. Lawyers for the hospital answered the complaint on September 18, 2001. The answer raised the statute of limitations as an affirmative defense. Pursuant to Judge Siragusa's Order, counsel for Strong also supplied Borges with the names of the unknown defendants; John Doe was identified as Dr. Shanin Shahgoli (hereinafter Shahgoli) and Jane Doe as Pamela Randall (hereinafter Randall). Thereafter, the undersigned issued an Order changing the caption to reflect the properly named defendants and instructing the Marshal to serve Shahgoli and Randall at their last known addresses. (Docket #20).
Shahgoli and Randall now move to dismiss plaintiff's complaint, arguing that plaintiff's claims against them are barred by the statute of limitations. In addition, defendants' supplemental motion to dismiss raises the separate defenses that plaintiff failed to exhaust his administrative remedies; Shahgoli and Randall are not state actors for the purposes of § 1983; and plaintiff's claims are insufficient on the merits and frivolous.
Discussion
The motions before the Court present some knotty legal issues. Before addressing the merits, the Court commends both counsel for their thorough and well-briefed submissions.
The Motions to Dismiss.
1. Legal Standard on Motion to Dismiss: A district court should deny a 12(b)(6) motion to dismiss "unless it appears to a certainty that a plaintiff can prove no set of facts entitling him to relief." IEU AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1052 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994) (internal citations omitted). In so ruling, the Court is limited to the four corners of the pleading and may not consider additional information outside of that contained on the face of the pleading itself, unless such information is attached to the complaint or incorporated by reference therein. Yak v. Bank Brussels Lambert, BBL Holdings, Inc., 252 F.3d 127, 130 (2d Cir. 2001); Kopec v. Coughlin, 922 F.2d 152, 154-55 (2d Cir. 1991). In short, "[t]he Court's role in deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Pierce v. Marano, 2002 WL 1858772 at *3 (S.D.N.Y. August 13, 2002) (citations omitted).
2. Failure to Exhaust Administrative Remedies: Defendants argue that plaintiff's claims should be dismissed because Borges failed to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e(a). The PLRA states, in relevant part: "No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (1994 ed., Supp. V). See Booth v. Churner, 532 U.S. 731, 736 (2001).
The term "prison conditions" include claims of inadequate medical care. See Neal v. Goord, 267 F.3d 116, 120-121 (2d Cir. 2001). Indeed, the Supreme Court has recently decided that the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, including allegations of excessive force or other wrongs which had previously been excluded from this requirement by the Second Circuit. Porter v. Nussle, 534 U.S. 5166, 122 S.Ct. 983, 992 (2002). Although the exhaustion requirement is mandated even where relief is unlikely, see Giano v. Goord, 250 F.3d 146, 150-151 (2d Cir. 2001) (alleged ineffectiveness or futility of pursuing administrative remedies does not absolve inmate of exhaustion), the requirement does presuppose that plaintiff had an available administrative remedy. Booth v. Churner, 532 U.S. 731, 736 (2001). A remedy is considered to be "available" so long as there exists a possibility of some relief for the action complained of and the administrative process has the authority to respond to a complaint. Id. at 736.
The issue of whether plaintiff here had an available administrative remedy was initially raised by Judge Elfvin in his review of plaintiff's complaint. Under New York State regulations, the time for an inmate to file a grievance is 14 days from the alleged occurrence. 7 NYCRR § 701.7(a)(1). Judge Elfvin permitted Borges' claims to go forward against the defendants despite the lack of a filed grievance because he concluded that plaintiff would not have been aware of the need to file a grievance within the requisite time frame. Because Borges could not have realized that the defendants were misleading him about the presence of a piece of metal in his jaw at the time he was treated by Dr. Shahgoli, and only became aware of that fact much later, beyond the requisite 14 day period, Judge Elfvin concluded that plaintiff had no available administrative remedy.
Defendants argue that Borges' Amended Complaint alleges that plaintiff saw Shahgoli and Randall whispering to each other while looking at his x-ray films facts and hence had reason to know that defendants were conspiring to mistreat him. This "new information," standing alone, is insufficient to alter the analysis set forth by Judge Elfvin. Simply stated, this Court does not believe that the alleged whispering between defendants is enough to alert Borges of the necessity of a filing of a grievance at the time of the incident.
In addition, it is unclear whether conduct occurring outside of the prison facility would constitute a "prison condition" for which relief would be available within the meaning of the PLRA. Here, defendants have not cited any case which held that "prison conditions" extend beyond the prison walls and this Court is hesitant to read such a requirement into the statute. No evidence has been submitted which suggests that plaintiff's claims against Shahgoli and Randall could have been handled internally within the DOCS grievance procedure or even that the prison grievance tribunal would have had any authority to take some responsive action to Borges' complaints. Indeed, the applicable DOCS regulations define "nongrievable matters" as including any action taken by an "outside agency." The burden of demonstrating Borges' failure to comply with the exhaustion requirement is on the defendants. See Jenkins v. Haubert, 179 F.3d 19, 28-29 (2d Cir. 1999) (exhaustion is an affirmative defense which must be raised and proved by defendant); Reyes v. Punzal, 206 F. Supp.2d 431, 433 (W.D.N.Y. 2002) (failure to comply with the PLRA's exhaustion requirement is an affirmative defense and defendant bears the burden of proving plaintiff's failure to comply with the exhaustion requirement"). Given the present state of the record, the Court is unable to conclude that any administrative remedies were "available" to Borges. Thus, for purposes of this motion, the Court will deny defendants' request to dismiss the pleadings for failure to exhaust administrative remedies.
7 NYCRR § 701.3(f) provides: "Outside agencies excluded. Any policy, regulation or rule of any outside agency not under the supervision of the commissioner, or any action taken by such agency, is not within the jurisdiction of the IGP [Inmate Grievance Procedure]."(emphasis supplied).
3. State Action: The foregoing leads directly into the next issue raised by the defendants' motion: whether or not conduct occurring by private individuals off prison grounds can constitute "state action" in accordance with § 1983. Section 1983 provides legal and equitable remedies against "[e]very person who, under color of any statute, ordinance, regulation, custom or usage, of any State . . . subjects . . . any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. To state a claim for relief under § 1983, Borges must establish that the alleged deprivation was due to some action by the state. Commodari v. Long Island Univ., 89 F. Supp.2d 353, 372 (E.D.N.Y. 2000); American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) ("the under-color-of-state-law element of § 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrongful"); Thomas v. Arevalo, 1998 WL 427623 at *10 (S.D.N.Y. July 28, 1998) (private medical doctor considered state actor where she provided medical care to inmate and her employer was aware of the arrangement to provide medical care to prisoners).
Relying on West v. Atkins, 487 U.S. 42, 53 n. 10 (1988), Judge Elfvin concluded that defendant Sherlipolin [Shahgoli] "was clearly acting on behalf of the state to care for the health of a prisoner in state custody," and thus was a state actor subject to suit under § 1983. See also Garraway v. Artuz, 2002 WL 221584 at *6 (S.D.N.Y. February 13, 2002) (physician's provision of medical services to a ward of the State pursuant to a contractual arrangement constitutes state action even where physician himself was not party to contract); Thomas v. Keane, 2001 WL 410095 at *4 (S.D.N.Y. April 23, 2001) ("a physician, who under contract provides medical assistance to state inmates, acts under the color of state law"). Notwithstanding Judge Elfvin's holding, defendants argue that plaintiff's § 1983 action against them must fail because they were private actors not acting under color of state law. Defendants contend that Judge Elfvin's determination is not binding on this Court and that the facts of West are distinguishable from the facts here because the conduct at issue did not take place within the confines of the prison and defendants were not in a contractual relationship with the Department of Corrections.
There is in fact some legal support for the defendants' position. See, e.g., Nunez v. Horn, 72 F. Supp.2d 24, 27 (N.D.N.Y 1999) (finding no state action where treatment occurred outside of prison and no contractual relationship was present). Dr. Shahgoli and Pamela Randall have submitted affidavits to this Court averring that Borges was merely referred to Strong Hospital for consultation and not pursuant to any contractual obligation with DOCS. (See Docket #44). However, even if the Court converted the defendants' motion to one for summary judgment and considered matters outside the pleadings, Borges is entitled to an opportunity to investigate and rebut defendants' state action argument.
Plaintiff should be given the opportunity during discovery to examine the nature of the relationship between Strong Memorial Hospital, the defendants, and the Department of Corrections. That being said, nothing in this decision will prevent defendants from making a summary judgment motion on this issue at the conclusion of discovery. However, on the present record, defendants' motion to dismiss on "state action" grounds is denied without prejudice.
4. Statute of Limitations: Defendants contend that the claims against them are time-barred, as plaintiff's complaint was not served on them until after the applicable statute of limitations had expired. Plaintiff argues that the claims survive under the "relation-back" doctrine, or in the alternative, meet the requirements for the Court to toll the statute of limitations under a theory of equitable tolling or equitable estoppel.
(a) Relation Back: Rule 15(c) of the Federal Rules of Civil Procedure outlines the requirements for an amendment to relate back to the original filing date: (1) the claim against the new party must arise out of the same conduct as the conduct alleged in the complaint; (2) the new party must have had such notice of the action that it will not be prejudiced in maintaining a defense; (3) the party knew or should have known that but for a mistake concerning identity, the action would have originally been brought against it; and (4) the second and third requirements must have been fulfilled within 120 days of the filing of the original complaint. Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-469 (2d Cir. 1996). "The goal of relation-back principles is to 'prevent parties against whom claims are made from taking unjust advantage of otherwise inconsequential pleading errors to sustain a limitations defense.'" VKK Corp. v. National Football League, 244 F.3d 114, 128 (2d Cir. 2001) (quoting Advanced Magnetics, Inc. v. Bayfront Partners, 106 F.3d 11, 19 (2d Cir. 1997).
Neither party here disputes that the new claims arise out of the conduct alleged in the original complaint has been satisfied. The crux of the issue here is whether plaintiff can demonstrate the remaining requirements under Rule 15(c): (1) mistake in identity, and (2) notice.
Mistake: To constitute a mistake under a Rule 15 analysis, the new party must have known or should have known that, but for a mistake concerning the identity of the proper parties, the action would have been brought against it. See Fed.R.Civ.P. 15(c)(3). "The requirement that a new defendant 'knew' he was not named due to a mistake concerning identity presupposes that in fact the reason for his not being named was a mistake in identity." Cornwell v. Robinson, 23 F.3d 694, 705 (2d Cir. 1994).
Although plaintiff unquestionably identified the defendants as "Jane Doe" and "John Doe" within the requisite statute of limitations, "an amended complaint adding new defendants [cannot] relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d Cir. 1995); Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993) ("It is familiar law that 'John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a 'John Doe' with a named party in effect constitutes a change in the party sued") (citations omitted). This holds true even where the suit is brought by a pro se litigant. Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999).
Borges has not shown that Pamela Randall knew or should have known that but for a mistake, the action would have been brought against her and therefore the claims against Randall cannot relate back to the original pleading. As to Dr. Shahgoli, a closer question exists. The claims against Dr. Shahgoli are the not typical "John Doe" variety since plaintiff originally misidentified him as "S. Sheripolin." Thus, the claims against Shahgoli are more in line with the type of cases that the "mistake in identity" element was intended to correct. Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 19 (2d Cir. 1997) (substitution of correct parties "is not significant when the change is merely formal and in no way alters the known facts and issues on which the action is based" and should be freely allowed); William H. McGee Co. v. M/V Ming Plenty, 164 F.R.D. 601, 606 (S.D.N.Y. 1995) ("The misidentification of similarly named or related companies is the classic case for application of Rule 15(c) relation back"). Borges did attempt to identify Shahgoli from the dental records and simply misread the doctor's handwriting.
However, the Court need not decide the mistake element as to Shahgoli because even assuming Borges could establish the mistake in identity, his inability to demonstrate notice is fatal to his attempt to have the claims relate back to the filing of the original complaint. The notice requirement of Rule 15(c) demands more than simply awareness of the events giving rise to the cause of action. The Rule insists that the party have notice of "the institution of the action." Fed.R.Civ.P. 15(c)(3)(A). (emphasis added). "The conclusion of a growing number of courts and commentators is that sufficient notice may be deemed to have occurred where a party who has some reason to expect his potential involvement as a defendant hears of the commencement of litigation through some informal means." Kinnally v. Bell of Pa., 748 F. Supp. 1136, 1141 (E.D.Pa. 1990). See also Mills v. Fenger, 2001 WL 135824 at *3 (W.D.N.Y. February 15, 2001) ("While the new defendants must have notice of the claim within 120 days of the filing of the original complaint, such that they will not be prejudiced in maintaining a defense, such notice need not be formal."); Blaskiewicz v. County of Suffolk, 29 F. Supp.2d 134, 138 (E.D.N.Y. 1998) ("It is not essential that a potential party receive formal notice of the claim within 120 days for purposes of Rule 15(c)(3)(A). It is sufficient that such notice occur through informal means").
In this case, it is a substantial leap to conclude that Shahgoli had notice of the claim within 120 days of the filing of the original complaint or the amended complaint. To make this finding, the Court is required to assume: (1) that Judge Siragusa's December 2000 Order constituted an amendment to the pleading and that the 120 days began running at that point in time; (2) that the unanswered January 2001 mailing to Strong Memorial Hospital constituted adequate notice even though it was never acknowledged by the hospital; (3) that despite Strong's status as non-party, and despite the apparent non-existence of an Administrator position, the notice received from the mailing could still be imputed to Shahgoli; (4) that such notice was adequate even though Shahgoli no longer worked at Strong and Strong had no current address for him.
The assumption upon assumption exercise this Court would have to perform is too factually tenuous to make the required finding of timely notice under Rule 15(c). To be sure, some assumptions will be involved in any case where a plaintiff cannot demonstrate actual notice of a lawsuit, but here the assumptions are too speculative to base a finding of notice as required by the Rule. Accordingly, plaintiff's claims against Shahgoli and Randall do not "relateback" for the purposes of Rule 15(c) and can only survive if another doctrine or theory applies.
(b) Equitable Tolling: In the alternative, Borges asserts that the statute of limitations has been equitably tolled. "Equitable tolling allows courts to extend the statute of limitations beyond the time of expiration as necessary to avoid inequitable circumstances." Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d Cir. 1996). As a matter of fairness, the Second Circuit has allowed plaintiffs to benefit from this doctrine where "a plaintiff has been prevented in some extraordinary way from exercising his rights." Id. (quoting Miller v. International Te. Tel. Corp., 755 F.2d 20, 24 (2d Cir. 1985)); Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) ("[E]quitable tolling [has been allowed] in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass."); Brown v. Parkchester South Condominiums, 287 F.3d 58, 60 (2d Cir. 2002) (same). In order to be entitled to equitable tolling, a plaintiff must act diligently through the period he or she seeks to have tolled. See Dodds v. Cigna Secs. Inc., 12 F.3d 346, 350 (2d Cir. 1993), cert. denied, 511 U.S. 1019 (1994). Examples of circumstances justifying the application of equitable tolling include: where it would have been impossible for a reasonably prudent person to learn of the error; where the Court led the plaintiff to believe that he took all required steps; where the defendant's affirmative misconduct lulled the plaintiff into inaction; where the plaintiff did not have adequate notice; or where there is a pending motion for appointment of counsel. South v. Saabs Cars USA, Inc., 28 F.3d 9, 11 (2d Cir. 1994). See also Blaskiewicz v. County of Suffolk, 29 F. Supp.2d 134, (E.D.N.Y. 1998) (equitable tolling doctrine applied where County defendant did not provide pro se plaintiff with names of individual officers involved within limitations period).
Even recognizing that equitable relief is to be granted sparingly, this case presents a scenario which warrants such relief. In the first instance, the Court must take into account plaintiff's pro se status, as well as the fact that he was incarcerated, and construe his pleadings and requests liberally. Thomas v. Arevalo, 1998 WL 427623 at *10 (S.D.N.Y. July 28, 1998). There is little doubt that had Borges not been incarcerated and/or had the benefit of an attorney, the circumstances here would be far different. Second, on the present record there is no question that plaintiff acted diligently and actively attempted to identify the Doe defendants. Borges repeatedly pursued every available avenue to obtain this information and has documented his efforts with the Court. Third, regrettably it was the nearly eight-month inaction of the U.S. Marshal's office which significantly contributed to the inordinate delay that resulted in expiration of the limitations period. The Marshal's office failed to adhere to Judge Siragusa's Order to "immediately" personally serve Strong Memorial Hospital should mailing prove unsuccessful and it seems unfair to charge that inaction to plaintiff when he had absolutely no control over it. Fourth, plaintiff did write directly to the hospital, on more than one occasion, to obtain the names of the individuals treating him and was rebuffed. In addition, the hospital failed to respond the mailed complaint, despite the attachment of two Court orders discussing the need to identify the defendants. While this conduct cannot be directly attributed to Shahgoli or Randall, the hospital was their employer and Strong's inaction, whether it was deliberate or unintentional, worked to defendants' benefit and plaintiff's detriment. Finally, plaintiff did file a motion for appointment of counsel to assist him with this difficult process. Had Borges had the benefit of counsel, it seems reasonable if not likely that an attorney would make sure the new defendants were added to the complaint before the statute of limitations expired. The record supports Borges' position that he tried in good faith to comply with all the procedural requirements of which he was aware and that it was reasonable for him to believe that his difficulties identifying the defendants were being addressed by Court Order and implemented by the U.S. Marshal Service.
This is not to say that there are not factors present here which cut against a finding of equitable tolling. As defense counsel points out, by operation of New York CPLR 203(b)(5), the three year statute of limitations was extended by 60 days. Thus, Borges received the actual names of the John Doe defendants approximately 30 days before expiration of the limitations deadline. But given Borges' pro se status and the limited access he necessarily has to legal research resources, it is unreasonable to expect him to be aware of the nuances of civil procedure rules. Indeed, even plaintiff's present counsel, experienced in federal and state court litigation, conceded at oral argument that he was unaware that the statute of limitations would have been extended.
In sum, the Court finds that the doctrine of equitable tolling should be applied during the eight month time period when the U.S. Marshal's office did not comply with the Court's Order for immediate service. Consequently, plaintiff's amended complaint will be considered timely and defendants' motion to dismiss on statute of limitations grounds is denied.
Because the Court finds that equitable tolling shall apply, it need not consider the applicability of equitable estoppel.
5. Merits of Plaintiff's Claims: Defendants also move to dismiss plaintiff's claims on the merits, arguing that the claims are frivolous. This Court has already concluded the pleadings withstand such scrutiny and may go forward. (Docket #3,7). Plaintiff has not had the opportunity to conduct any discovery and, taking the allegations in plaintiff's complaint as true, there are issues of fact which preclude a ruling for defendants at this time. Defendants may renew their motion to dismiss pursuant to a motion for summary judgment at the close of discovery.
Conclusion
Defendants' Motion to Dismiss and Supplemental Motion to Dismiss are denied. Pro bono counsel for plaintiff was appointed solely with respect to this motion and shall notify the Court in writing within 14 days if he intends to continue representation of Mr. Borges for the remainder of the case.
SO ORDERED.