Opinion
6:15-cv-01382 (GLS/TWD)
12-07-2015
CHRISTOPHER BRANT, Plaintiff, v. CITY OF SYRACUSE, et al., Defendants.
APPEARANCES: CHRISTOPHER BRANT 13-B-3329 Plaintiff, pro se Mid-State Correctional Facility P.O. Box 2500 Marcy, New York 13405
APPEARANCES: CHRISTOPHER BRANT
13-B-3329
Plaintiff, pro se
Mid-State Correctional Facility
P.O. Box 2500
Marcy, New York 13405 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER & REPORT-RECOMMENDATION
The Clerk has sent this pro se Complaint together with an application to proceed in forma pauperis ("IFP Application"), and a motion for appointment of counsel to the Court for review. (Dkt. Nos. 1-3.) Plaintiff brings this action pursuant to 42 U.S.C. § 1983, naming the City of Syracuse and four members of the Syracuse Police Department as Defendants. (Dkt. No. 1.) For the reasons discussed below, the Court: (1) grants Plaintiff's IFP Application, (2) recommends sua sponte dismissal of Plaintiff's Complaint without prejudice and with leave to amend, and (3) denies Plaintiff's motion for appointment of counsel without prejudice.
I. IFP Application
Plaintiff has applied to proceed in forma pauperis. (Dkt. No. 3.) A court may grant in forma pauperis status if a party "is unable to pay" the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1) (2006). After reviewing Plaintiff's IFP Application, I find that Plaintiff meets this standard. Furthermore, Plaintiff has filed the required Inmate Authorization Form. (Dkt. No. 5.) Therefore, Plaintiff's IFP Application (Dkt. No. 3) is granted.
II. SCREENING OF THE COMPLAINT
A. Applicable Legal Standard
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a person proceeds in forma pauperis, "the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and the parties have had an opportunity to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983), the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required where "the problem with [the plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Analysis of Plaintiff's Complaint
Plaintiff brings this action under 42 U.S.C. § 1983, which establishes a cause of action for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the Unites States by a person acting under color of state law. Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). Plaintiff alleges that Defendant Police Officers Henderson, Stockton, Milana, and Sergeant Burgess used excessive force during his September 25, 2009, arrest and violated his rights under the Fourth, Fifth, and Eighth Amendments. (Dkt. No. 1 at 6.) Plaintiff's Complaint also alleges "police brutality" and "malicious prosecution" and seeks to hold Defendant City of Syracuse liable under Monell v. Dep't. of Soc. Servs., 436, U.S. 658, 690 (1978), for failing to train, supervise, and discipline its police officers engaging in excessive force. Id.
On September 25, 2009, Plaintiff was in the basement at 1221 West Onondaga Street, "attempting to steal copper piping." (Dkt. No. 1 at 4.) Plaintiff alleges that Defendants Henderson, Stockton, Milana, and Burgess used excessive force during his arrest and "commenced with police brutality." Id. Specifically, Plaintiff alleges that Defendants repeatedly punched him in the face, temple, and ribs. Id. Thereafter, Plaintiff was taken to the Justice Center and then to the Emergency Room, where he was treated for his swollen eye, broken nose and orbital, and cracked ribs. Id. Plaintiff seeks $2,500,000.00 from each Defendant in damages for violations of his constitutional rights, and also for mental anguish, pain, suffering, and related medical expenses. Id. at 7.
Claims arising under 42 U.S.C. § 1983 are governed by state statutes of limitations. Wilson v. Garcia, 471 U.S. 261, 266-67 (1985). In New York, such claims are governed by the general three-year limitations period governing personal injury claims. Owens v. Okure, 488 U.S. 235, 251 (1989). Accrual of the claim, however, is a question of federal law. Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997).
Under federal law, generally, a claim arising under 42 U.S.C. § 1983 "accrues" when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Pearl v. City of Long Island Beach, 296 F.3d 76, 80 (2d Cir. 2002). "The crucial time for accrual purposes is when the 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).
Although the statute of limitations is an affirmative defense, where it is clear from the face of the complaint that a claim is barred by the applicable statute of limitations, the claim is subject to dismissal for failure to state a claim on 28 U.S.C. § 1915(e)(2)(B) review. See Pino v Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding that a complaint can be dismissed on initial review based on a defense that appears on the face of the complaint.)
Here, Plaintiff's claims accrued at the time of Defendants' alleged violations of his constitutional rights, on September 25, 2009. (Dkt. No. 1 at 4.) The statute of limitations for those claims therefore expired three years later, on September 25, 2012. Plaintiff commenced this action on November 20, 2015, more than seven years after the alleged incident. (Dkt. No. 1.) However, under the "prison mailbox rule," the date of filing is deemed to be the date that the prisoner-plaintiff delivered his complaint to a prison guard for mailing to the court, which is presumably to be the date that the complaint was signed. See Houston v. Lack, 487 U.S. 266, 276 (1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). Here, Plaintiff signed his Complaint on September 26, 2014. Id. at 7. Therefore, the Court will presume that Plaintiff "brought" this action for purposes of 28 U.S.C. § 1983 on September 26, 2014, more than two years after the statute of limitations expired. Accordingly, all of Plaintiff's § 1983 claims are time-barred and subject to dismissal for failure to state a claim. See Pino, 49 F.3d at 53.
In "rare and exceptional" cases, the doctrine of equitable tolling may be invoked to defeat a defense that the action was not timely filed. Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007). As the Second Circuit recognized in Abbas, New York law recognizes the equitable tolling doctrine where a plaintiff demonstrates that he was induced by fraud, misrepresentations, or deception to refrain from timely commencing an action. Id.; see also Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). The party seeking equitable tolling has the burden of establishing that extraordinary circumstances prevented him from filing a timely complaint, and that he acted with reasonable diligence throughout the period he seeks to toll. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004). Here, there is nothing in Plaintiff's Complaint that would suggest he has meritorious tolling arguments.
The Court has reviewed the Exhibits attached to Plaintiff's Complaint. (Dkt. No. 1-1.) Construed liberally, Plaintiff may be attempting to argue that his § 1983 claims did not accrue until May 14, 2014, the date that the City of Syracuse advised Plaintiff by letter that it declined to make any payment for the "brutal assault" that occurred on September 25, 2009. (See Dkt. No. 1-1 at 3-5.) However, as previously discussed, it is well-settled that § 1983 claims accrue at the time plaintiff "becomes aware that he is suffering from a wrong for which damages may be recovered in a civil action." Singleton, 632 F.2d at 192. Here, Plaintiff's claims are of such a nature that he undoubtedly knew, or at a minimum reasonably should have known, of the facts underlying his claims and the existence of a potential § 1983 cause of action at the time of the relevant events, on September 25, 2009. See Paige v. Police Dep't of City of Schenectady, 264 F.3d 197, 199-200 (2d Cir. 2001). Moreover, as the Second Circuit made clear in Abbas v. Dixon, "a plaintiff's pursuit of a state remedy, such as an Article 78 proceeding, does not toll the statute of limitations for filing a claim pursuant to § 1983." 480 F. 3d at 641 (citations omitted); see, e.g., Thompson v. Campbell, No. 9:09-CV-1379 (GLS/DRH), 2010 WL 2483290, at *2, 2010 U.S. Dist. LEXIS 55249, **4-7 (June 4, 2010) (the mere fact that plaintiff filed a Notice of Claim afforded no basis for tolling the limitations period for a §1983 claim and rejecting plaintiff's argument that filing a Notice of Claim "restarted" the limitations period).
However, when a district court dismisses a pro se action sua sponte, the plaintiff generally will be allowed to amend his action. See Gomez, 171 F.3d at 796. Moreover, a district court typically should not dismiss a complaint as time-barred without providing a pro se plaintiff with "notice and opportunity to be heard" as to whether there might be a meritorious tolling argument or other reason why the complaint might be considered. See Abbas, 480 F.3d at 640.
Accordingly, the Court recommends sua sponte dismissal of Plaintiff's Complaint as barred by the statute of limitations pursuant to 28 U.S.C. §1915(e)(2)(B)(ii) for failure to state a claim on which relief can be granted. In light of Plaintiff's pro se status, the Court recommends that Plaintiff's Complaint be dismissed without prejudice and with leave to amend.
Any amended complaint submitted must include facts demonstrating why Plaintiff's claims are timely, or if untimely, why the applicable limitations period should be tolled. --------
Inasmuch as the Court has recommended sua sponte dismissal of Plaintiff's § 1983 claims, the Court also recommends that the District Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims. Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 120 (2d Cir. 2006) (district court has discretion to decline to exercise supplemental jurisdiction over state law claims because all claims over which the federal court has original jurisdiction have been dismissed). The Court recommends dismissing Plaintiff's state law claims without prejudice and subject to reconsideration in the event Plaintiff files a properly amended complaint.
III. MOTION FOR APPOINTMENT OF COUNSEL
Plaintiff has moved for appointment of counsel. (Dkt. No. 2.) Even if the Court were not recommending sua sponte dismissal of Plaintiff's Complaint, a more fully developed record would be necessary before an assessment can be made as to whether counsel should be appointed. See Hendricks v. Coughlin, 114 F.3d 390, 392 (2d Cir. 1997) (court must look to the likelihood of merit of the underlying dispute in determining whether to appoint counsel). Therefore, the motion is denied. The denial is without prejudice so that Plaintiff will not be precluded from making a subsequent motion for appointment of counsel in the event the District Court allows this action to proceed, or Plaintiff files an amended complaint that survives initial review.
ACCORDINGLY, it is hereby
ORDERED that Plaintiff's IFP Application (Dkt. No. 3) is GRANTED; and it is further
RECOMMENDED that the Complaint (Dkt. No. 1) be DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND; and it is further
ORDERED that Plaintiff's motion for appointment of counsel (Dkt. No. 2) is DENIED WITHOUT PREJUDICE; and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff, along with a copy of the unpublished decision Thompson v. Campbell, No. 9:09-CV-1379 (GLS/DRH), 2010 WL 2483290, 2010 U.S. Dist. LEXIS 55249 (June 4, 2010), in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir.2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed. R. Civ. P. 72, 6(a). Dated: December 7, 2015
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge