Opinion
98 Civ. 1285 (MGC)
January 2000
RONNIE COVINGTON, Plaintiff Pro Se.
ROBERT M. MORGENTHAU, District Attorney, Marc Frazier Scholl, Esq. and Von Veiga, Esq., Assistant District Attorneys, for Defendant.
MICHAEL D. HESS, Corporation Counsel, and Louise Lippin, Esq., Assistant Corporation Counsel, for Defendant
OPINION
Plaintiff Ronnie Covington sues various government entities and officials under 42 U.S.C. § 1983 for alleged violations of his rights stemming from incidents occurring in 1992 and 1993. The complaint originally alleged a number of claims under state law. In an opinion dated September 21, 1999, I dismissed Covington's state law claims as barred by the relevant statutes of limitations. I also dismissed a number of defendants from the suit. Defendants' motion to dismiss the § 1983 claims as time-barred under the applicable three-year statute of limitations was denied because Covington submitted an affidavit in which he asserted that he gave the complaint to prison officials for filing on a date prior to the expiration of the statute of limitations. This disputed issue of fact could not be resolved on the papers. Pursuant to Fed.R.Civ.P. 42(b), I separated this potentially dispositive issue for trial. No party has demanded a jury trial.
At the one-day bench trial, two witnesses testified: Glenda Horton, a head clerk from the court's Pro Se Office, and the plaintiff. After examining all the evidence, observing the demeanor of the witnesses, and considering the plausibility and credibility of the testimony, I conclude that defendants have satisfied their burden of proving by a preponderance of the credible evidence their affirmative defense that Covington did not file a complaint within three years of the accrual of any of his claims.
And the documents submitted by Covington in his opposition to defendants' earlier motion to dismiss.
THE TESTIMONY
During December 1995 and surrounding months, Ronnie Covington was incarcerated at Great Meadow Correctional Facility. At this facility, prisoners send mail by depositing it in a mail box or by handing it to a prison guard. Prisoners pay for postage by using stamps or by filling out a disbursement form. The form provides spaces for a description of the items being mailed, the date of the request, the prisoner's name, and the address to which the mail should be sent, as well as a line for the signature of the approving prison official.
After a package or letter has been handed to a guard for mailing, the prisoner receives the pink copy of the disbursement form. The form is signed and dated by an approving official who fills in the amount of the disbursement required for postage. The form is also dated by the prisoner filling out the form. Covington testified that he did not always receive a pink copy when he gave mail to officials. He filed grievances complaining about this on at least two occasions but never received a "definite answer" concerning problems with sending his mail. He does not recall filing a grievance in December of 1995. Covington was involved in a number of legal matters in late 1995 and early 1996. On November 23, 1995, he sent a letter to Judge Scheindlin requesting extra time to file objections to a magistrate's report in a separate case. The reason for the request, according to Covington's letter, was that he was busy preparing a brief for the appeal of his criminal conviction and would not be finished with that brief until "the second week of January-1996." (Def. Ex. B.) The letter does not mention that Covington was also working on a complaint. Covington also worked on his appellate brief during November, December, and early January. He typed the entire 124-page brief, and he does not consider himself a fast typist. In November 1995, Covington was served with a motion to dismiss in a case before Judge Patterson.
In November and December 1995 he was also attempting to obtain review by the New York Court of Appeals of another matter. Covington testified that he initially gave the complaint in this case to prison officials for mailing on December 1, 1995. He stated that he became concerned in mid-December 1995 that he had not yet received confirmation of receipt of his complaint. Covington also stated that he therefore gave his only copy of the December 1 complaint to prison officials for mailing on December 20, along with a cover letter requesting expeditious filing because his "three (3) year time limitation is about to expire." (Pl. Mem. Ex. A-3.)
Covington testified that he first inquired in February 1996 about whether his December 20 complaint had been received.
According to Covington, in February, March, and June of 1996 he wrote to Judge Patterson, who was handling another civil case he had brought, concerning the status of the complaint in this case. He did not provide copies of any of those letters.
The first piece of correspondence offered by plaintiff as evidence that he inquired about the status of a complaint mailed in December 1995 is dated October 7, 1996. (Pl. Mem. Ex. A-8.) The letter refers to a December 1 mailing but not to a December 20 mailing. The next letters on this topic are dated November 19, 1996 and January 20, 1997, and their substance is the same as the October 7 letter. (Pl. Mem. Ex. A-9; Pl. Mem. Ex. A-10.) Glenda Horton, a head clerk in the Pro Se office who supervises other clerks in the processing of incoming mail, testified that when an official document such as a complaint arrives at the Pro Se Office, the clerks check for original signatures on the document and whether the submission includes a filing fee or in forma pauperis application. Receipt of the document is entered in the Pro Se Office's own office log which is called a "weekly." Ms. Horton reviewed the weekly logs to determine whether a complaint had been received from Covington during December 1995 and found no entry for such a complaint. The Pro Se Office also maintains a "sendback log" which records the receipt and return of defective submissions, such as unsigned complaints or complaints not accompanied by other required forms. When such a submission is received, the receipt of the document is noted as well as the date on which it is sent back and the reason for its return. Ms. Horton reviewed the sendback logs for late 1995 and early 1996 and found no entries for any documents received from Covington.
When the Pro Se Office receives a letter from a pro se litigant asking about a case not yet docketed, it sends back a general form letter stating that the office has no record of the case being filed. Neither the receipt of such letters nor the reply is recorded in the sendback log. Covington testified that he never received any sendback letters from the Pro Se Office with respect to any of his correspondence in this case. Covington mailed the copy of the complaint which initiated the present action in June or July of 1997. The complaint was sent to Judge Patterson's courtroom deputy, and was initially docketed in the case pending before Judge Patterson rather than being given a new docket number. It was forwarded to the Pro Se office on December 18, 1997.
DISCUSSION
The only issue is whether Covington's filing of his complaint was timely. In actions brought by pro se prisoners, the complaint is deemed filed on the date it is delivered to prison officials for mailing. Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993). The relevant statute of limitations for claims asserted in New York under § 1983 is three years. Owens v. Okure, 488 U.S. 235, 250-51, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594 (1989). Thus, the question is whether Covington delivered his complaint to prison officials for filing within three years of the dates on which his claims accrued.
Under federal law, a § 1983 claim accrues at "that point in time when the plaintiff knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (quoting Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977)). Covington's malicious prosecution claim accrued on January 14, 1993, the date on which the charges against him were dismissed. His false arrest claim accrued on either February 12, 1992, the date of his arrest and imprisonment, or January 14, 1993, when the charges were dismissed, depending on whether evidence that would have been key to obtaining his conviction was obtained as a fruit of the arrest. Covington v. City of New York, 171 F.3d 117, 119 (2d Cir. 1999). His claims of conspiracy and misconduct before the grand jury accrued on the date the final indictment against him was filed, which was necessarily prior to January 14, 1993. Thus, unless Covington delivered his complaint to prison officials for filing on or before January 14, 1996, all of his § 1983 claims are time-barred.
Defendants presented ample evidence that Covington did not deliver his complaint for mailing on or before the critical date. The complaint that was ultimately filed was not received by the court until the summer of 1997, a year and a half after Covington asserts that he first attempted to file the complaint. The court did not receive another complaint, or any correspondence concerning such a complaint, on an earlier date.
Additionally, Covington's prison records show that he did not deliver a complaint to prison officials for filing in December 1995. Covington's prison account statement shows four deductions for postage for that month. On December 11, there is a debit for $3.00; on December 20, there is a debit for $0.78; and on December 28, there are debits for $2.39 and $2.16. (Def. Ex. E.) However, all four deductions were for postage for mailings concerning unrelated matters, as demonstrated by Covington's own notations on the corresponding disbursement forms. The first form was dated December 19 by Covington, and December 20 by the approving officer. The item description was "POSTAGE for Legal Mail, to wit, service of Addendum to 12/1/95 Application For Leave To Appeal To The Court of Appeals." (Def. Ex. F.) The amount disbursed was $0.78, and the form bears Covington's signature. (Id.) The second form was dated December 11 by the approving officer (the date Covington included, as well as some other information, is not visible on the copy provided). (Def. Ex. G.) The item description was "POSTAGE for Legal Mail, to wit, service of Application for Leave To Appeal To The Court of Appeals in re-Covington v. Stinson, Index #94-040B." (Id.) The amount disbursed was $3.00, and the form bears Covington's signature. (Id.) The third form was dated December 21 by Covington, and the date entered by the approving officer is illegible. (Def. Ex. H.) The item description was "POSTAGE for Legal Mail, to wit, service of documents relative to the underlying criminal action for use, and possible disposition of civil rights action — Covington v. City of New York, et al., Index #95 Civ. 2137 (EHN) during the upcoming January 8, 1996 telephone conference." (Id.) The amount disbursed was $2.39, and the form bears Covington's signature. Finally, the fourth form was dated December 21 by Covington and December 28 by the approving officer. (Id.) The item description was the same as that on the third form. (Id.) The amount disbursed was $2.16, and the form bears Covington's signature. (Id.) None of these item descriptions reflects the filing of a complaint.
The circumstances surrounding the alleged delivery dates also are inconsistent with a December 1995 mailing. Covington admits that his time was occupied by other matters during the period surrounding the dates of his alleged deliveries of the complaint to prison officials. This prompted him to request from Judge Scheindlin in November 1995 extra time to file objections in an unrelated matter. In making this request, however, Covington did not mention that he was working on a complaint with a statute of limitations that was about to expire, although he did write in the letter to Judge Scheindlin that he was working on a lengthy appellate brief which was occupying all of his time.
In addition to this 124-page typewritten appellate brief, Covington admits that he was also working on a response to a motion to dismiss in another case and seeking review in the New York Court of Appeals on yet another matter. Given this heavy workload, it is very likely that Covington did not have time to prepare a lengthy complaint during the same time period. In opposition, Covington testified that on two separate occasions in December 1995 he delivered his complaint to prison officials for mailing. However, his testimony to this effect was not credible. First, the letters that Covington asserts that he sent with the complaint, as well as the letters that he says he sent later inquiring about the status of his complaint, are inconsistent with his assertion that he attempted to mail a complaint twice in December 1995. The letter that he says accompanied the December 20 mailing does not mention that a complaint had also been sent on December 1. On the other hand, a letter of inquiry dated October 1996 refers only to a complaint sent on December 1, and does not mention a December 20 mailing. Importantly, the complaint ultimately submitted and filed bears both dates — the complaint itself (which Covington describes as a carbon copy) is dated December 20, while the affidavit of service attached to it is dated December 1.
I found Covington's testimony that he inquired about the status of his complaint on numerous occasions prior to the summer of 1997 not credible. There is no evidence that the Pro Se Office, Judge Patterson's chambers, the Clerk's office, or any other court office received any correspondence on this topic from Covington before the summer of 1997. Furthermore, Covington testified that he became worried that his December 1 mailing had not been received within three weeks of that mailing, and, for that reason, submitted a second complaint for mailing on December 20. However, the first letter Covington proffers as evidence that he inquired about the status of this complaint is dated October 1996. In addition to his demeanor as a witness, it is not believable that Covington could have been worried by the passage of three weeks without any response but would have allowed ten months to pass before inquiring again about the complaint. This is in spite of the fact that Covington testified that he was aware that the statute of limitations was about to expire. Moreover, he never filed a grievance with prison officials complaining that despite two attempts, his complaint had not been mailed.
Covington does proffer what he describes as a copy of a disbursement form dated December 20 and bearing a description indicating the filing of a complaint. (Pl. Mem. Ex. A-2.) However, this form is not dated by a prison official, and includes no disbursement amount. This is not an official receipt. Moreover, there is no corresponding entry for this disbursement on Covington's December account statement. Covington has demonstrated a willingness on at least one other occasion to tamper with documentary evidence to suit his needs. In an effort to prove that he attempted to correspond with the court concerning his complaint at an earlier date than October 1996, Covington submitted a "Consent and Authorization for Release of Sealed Records" dated July 3, 1996. (Pl. Mem. Ex. I at 3-4.) The form is typed, except that on a line for the name of the presiding judge the name "Mariam [sic] Goldman Cedarbaum" is entered, and "98 Civ. 1285 (MGC)" (the case number of the present action) is written in beside the caption. (Id.) In view of the impossibility of knowing either of these pieces of information prior to the filing of the complaint and its assignment to a judge, it is not surprising that Covington admitted that he filled in that information after the form had been signed and notarized.
Based on all of the testimony, the demeanor of the witnesses and the documents received in evidence, I find by a preponderance of the credible evidence that Covington did not deliver his complaint to prison officials for mailing before January 14, 1996. The complaint is therefore time-barred by the three-year statute of limitations, and must be dismissed.
CONCLUSION
The foregoing shall constitute my findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a). The Clerk is directed to enter judgment for the defendants and against the plaintiff.
SO ORDERED.