Opinion
09-CV-2510 (DGT).
June 29, 2009
MEMORANDUM AND ORDER
Plaintiff, currently incarcerated at Big Sandy, United States Penitentiary, brings this pro se action pursuant to 42 U.S.C. § 1983. Plaintiff's request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 is granted. For the reasons state below, plaintiff is hereby directed to show cause by written affirmation, within thirty (30) days of the date of this order, why his complaint should not be dismissed as barred by the applicable statute of limitations.
BACKGROUND
Plaintiff alleges that on September 17, 1997, the New York City Police Department conducted a raid in which they arrested plaintiff and confiscated a "COMPOSITION and SPIRAL NOTEBOOK" (emphasis in original). See Complaint at 3. Plaintiff alleges that the charges against him were dismissed. Id. at 4. On June 15, 2000, plaintiff alleges that the New York City Police Department conducted a second raid and confiscated a notebook. Complaint at 4. Plaintiff states:
The court has paginated plaintiff's complaint for ease of reference.
The two notebooks (COMPOSITION and SPIRAL) that were confiscated in the 1997 raid was taken out of evidence at the Kings County District Attorney's Office and put with the NOTEBOOK confiscated at [the 2000] raid to make it look like the notebooks was confiscated together in that 2000 raid . . . (emphasis in original).
Complaint at 4. Plaintiff further alleges that the defendants planted evidence, committed perjury and falsified documents. Id. at 5. Plaintiff seeks monetary damages.
STANDARD OF REVIEW
Under 28 U.S.C. § 1915A, the Court must review a complaint in which a prisoner seeks redress from officers or employees of a governmental agency and "identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, fails to state a claim upon which relief may be granted or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b);Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
As plaintiff is proceeding pro se, his complaint is held to less stringent standards than pleadings drafted by lawyers,Erickson v. Pardus, 551 U.S. 89 (2007), and the Court is obliged to construe his pleadings liberally and interpret plaintiff's pleadings as raising the strongest arguments they suggest. Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006).
DISCUSSION
Plaintiff's complaint alleges a series of events that took place in 1997 and 2000. The statute of limitations for a § 1983 action is three years. Owens v. Okure, 488 U.S. 235, 250-51 (1989); Abbas, 480 F.3d at 638. A claim brought under § 1983 generally accrues once the plaintiff knows or has reason to know of the injury which is the basis of his action. Anderson v. Romano, N. 08 Civ. 559, 2009 WL 602965, at *3 (S.D.N.Y. Mar. 6, 2009). Equitable tolling is available in "rare and exceptional" cases where "extraordinary circumstances prevented a party from timely performing a required act," and "the party acted with reasonable diligence throughout the period" to be tolled. Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (internal quotation marks omitted); see also Abbas, 480 F.3d at 640 (plaintiff is entitled to notice and an opportunity to be heard before district court dismisses a § 1983 claims on statute of limitation grounds).
CONCLUSION
Accordingly, plaintiff is directed to file a written affirmation within thirty (30) days of the date of this order why his action should not be barred by the three year statute of limitations. Should plaintiff have a basis to equitably toll the limitations period he should present it in his affirmation. If plaintiff fails to submit a written affirmation, as detailed above, his complaint will be dismissed as time barred. No summons shall issue at this time and all further proceedings shall be stayed for 30 days.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.