Opinion
00 Civ. 0658 (CM).
January 9, 2001.
MEMORANDUM AND ORDER DISMISSING THE COMPLAINT AS TO ALL DEFENDANTS
Plaintiff is currently incarcerated at Southport Correctional Facility. He brings this action pro se under 42 U.S.C. § 1983, alleging that defendants failed to protect him from an October 18, 1996 attack by inmates in the recreation yard of the Downstate Correctional Facility, and that he is not receiving adequate medical care. Plaintiff seeks medical treatment and $100,000 in damages. Defendant Esparra moves to dismiss the complaint pursuant to Fed.R.Civ.P 12(b)(1) and 12(b)(6).
BACKGROUND AND PROCEDURAL HISTORY
On a motion to dismiss I assume all facts as alleged by the plaintiff are true.
In his initial complaint, Evans alleged that on October 18, 1996, while exercising in the prison recreation area (also referred to in the complaint as the "rec" and as the "SHU"), he suddenly lost consciousness. When he fully regained consciousness, he was in the facility hospital and suffering from lacerations and two broken teeth. (Pl.'s Am. Compl. at 1.) At the hospital, plaintiff had several tests done on his "head, eye and mouth," and received internal and external stitches. (Id.) Evans claim that he continues to suffer from headaches, dizziness, and occasional blackouts.
This complaint was received by the Court's Pro Se office on August 19, 1999. Because it was submitted without the requisite Prison Litigation Reform Act ("PLRA") Prisoner Authorization form, it was returned to plaintiff, who completed the correct form on October 13, 1999. The Court received it on October 18, 1999.
The original complaint named only a "John Doe" as defendant. The case was assigned to then — Chief Judge Griesa, who issued an order on February 1, 2000, requiring plaintiff to file an amended complaint within sixty days of the date of the order. In this order, Judge Griesa noted that plaintiff had also stated, in an October 13, 1999 letter to the Court, that he has "been beat[en] 2 times and [is] not getting medical care." In addition, he stated "plaintiff may also be alleging that he was transferred to a different facility in an attempt to impede his ability to file a complaint against Downstate Correctional Facility employees." Evans v. Doe, 00 Civ. 0658 (Feb. 1, 2000, S.D.N.Y.) (unpublished).
Judge Griesa directed that plaintiff must, in his amended complaint:
1. Name the appropriate defendant(s) . . . pertaining to:
a. The October 18, 1996 incident; b. The two alleged subsequent assaults; c. The alleged inadequate medical care; and d. The alleged retaliatory transfer.
2. Set forth facts indicating how each defendant named in his amended complaint had direct or personal involvement in the alleged constitutional deprivations in that the defendant(s) had actual or constructive notice of the deprivations.
3. Provide a short plaint statement of the relevant facts supporting his claims concerning:
a. The October 18, 1996 incident; b. The two alleged subsequent assaults; c. The alleged inadequate medical care; and d. The alleged retaliatory transfer.
Evans at 4. Judge Griesa also advised plaintiff that naming a "John Doe" defendant would not toll the statute of limitations period governing actions under § 1983, and that plaintiff was responsible for ascertaining the true identity of any "John Doe" defendants and amending his complaint to identify any "John Does" before the statute of limitations expires. See Tapia-Ortiz v. Doe et al., 171 F.3d 150, 152 (2d Cir. 1999); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996).
Plaintiff filed an amended complaint on March 23, 2000, in which he attempted to describe in more detail the events of October 18, 1996 and the following weeks. (See Amended Complaint, attached to Slater Aff. at Ex. A.) In that complaint, Evans named C.O. Esparra as the officer who was monitoring the rec area at the time of the attack. He also identified a Sgt. John Doe on the "3-11" shift who brought Evans back from an outside hospital to the correctional facility's hospital. This sergeant allegedly asked plaintiff if he was going to press charges. According to Evans, after plaintiff asked the sergeant what happened, the sergeant smiled and indicated there would be no need for the paperwork "for fighting or anything else." (Id.) Plaintiff identified a third defendant, Sergeant Bowden, who plaintiff believes is the person who placed him in "one man rec" instead of allowing him to participate in general rec time, and who moved him to a different cell following the attack. He accuses all three officers of covering up his assault and injuries. (Id.)
Plaintiff also provided additional information with respect to his injuries. In essence, Evans complains that in the weeks following the assault he had difficulty obtaining medical attention for his stitches and his pain, that the dentist who eventually saw him told him the internal stitches in his mouth should have been taken out earlier and would have to disintegrate on their own, and that this in fact took months, during which time he was in pain. He also states "I still deal with dizzyness and bad head pains to this day." (Id.) He did not name any individuals responsible for his care at either the Downstate Correctional Facility or the facility to which he was moved.
Plaintiff's amended complaint said nothing about two other assaults. Nor did it allege retaliatory transfer.
Defendant Esparra moved to dismiss plaintiffs complaint on July 21, 2000 on the grounds that (1) the claims are barred by the statute of limitations; (2) the amended complaint fails to state a claim upon which relief can be granted; and the claims are barred by 42 U.S.C. § 1997e; and (3) plaintiff failed to exhaust his administrative remedies. Plaintiff filed a response on August 17, 2000, and filed a supplemental brief with this court on October 11, 2000.
In his responses to defendant's motion, plaintiff appears to respond to facts included in the reports written by C.O. Esparra and Sgt. Bowden at the time of the 1996 incident and attached to defendants' motion papers. He claims that those reports show that Esparra either ignored what was happening in the rec yard or took part in the assault. He also claims the reports show that Bowden knew about and didn't properly deal with the assault. Plaintiff also requested a cat scan for his head injuries. He added no additional information about the failure to give him adequate medical treatment.
The case was transferred to White Plains on April 13, 2000.
On December 1, 2000, plaintiff and counsel for defendant Esparra appeared before this court via telephone. During this conference plaintiff provided further information on his request for medical treatment. Evans explained that the medical problems stemming from the October 18 incident were resolved within a few weeks after the incident, and that to the extent he still seeks treatment, it is for injuries sustained in an alleged assault that took place before the October 18, 1996 incident in the rec yard. This assault is neither alleged nor at issue in the present complaint.
Plaintiff has filed at least one grievance with respect to the prison hospital's failure to treat him for the injuries stemming from this earlier incident. A Ms. Bacareesa, whom plaintiff described as a "counselor," is conducting an investigation as to why Mr. Evans has not yet received any response.
CONCLUSIONS OF LAW
Defendants are correct that all of plaintiff's claims are barred by the statute of limitations. However, before addressing defendants' motion I must determine whether Sgt. Bowden is in default and can be included in the motion to dismiss.
1. Sgt. Bowden
In the motion to dismiss, defense counsel claimed on information and belief that Sgt. Bowden was not served with process within 120 days of the amended complaint, and requested that this Court dismiss the action against him sua sponte, pursuant to Rule 4(m) for the Federal Rules. However, a return of service, executed as to Sgt. Bowden by the U.S. Marshal's office on May 26, 2000, is on file with the Clerk of this court. During the December 1 conference call, I informed counsel that it appeared that Sgt. Bowden was in default. I directed defense counsel to provide me with (1) any grounds on which I should excuse default; and (2) any request by Sgt. Bowden to join in the motion to dismiss.
On December 19, 2000 (more than a week after the due date), defense counsel informed the Court via letter that Sgt. Bowden was not served until December 9, 2000. Counsel did not explain the circumstances of the service, explain the discrepancy between the clerk's records and Bowden's alleged receipt of the summons on December 9, or attach any affidavits with said information. The only document attached to the letter was a request by Sgt. Bowden that counsel's office, the Office of the Attorney General, represent him in the present action. This request included a typewritten sentence: "Service of process was made on ______," in which Bowden handwrote the date "12/9/00." He placed a check next to a typewritten clause stating that service of process was made "by mail." He did not attach the envelope or any other proof to back up the statement.
Counsel also requested that Bowden be allowed to join Esparra's motion to dismiss.
After doing its own investigation, this court determined that the original service mailed to Bowden was returned to the U.S. Marshals with a notation that Sgt. Bowden was no longer employed at the correctional facility to which the service was mailed.
It is thus apparent that the docket entry indicating that a return of service was filed is in error. "Return of service" is a technical term indicating that the papers were served. What happened here is that the papers came back unserved.
However, even assuming Sgt. Bowden was served in the middle rather than the end of the year 2000, this court has discretion to decide whether or not to enter a default judgment. See Bermudez v. Reid, 733 F.2d 18, 21 (2d Cir. 1984). Given the fact that the claim would be time-barred even if Sgt. Bowden had been served on May 26, 2000, I decline to enter a default judgment against him, see Fed.R.Civ.P. 55(b)(2); Katz v. Morgenthau, 709 F. Supp. 1219 (D.C.N.Y.), aff'd in part, rev'd in part on other grounds, 892 F.2d 20 (2d Cir. 1989); see also, Camp v. Guercio, 464 F. Supp. 343 (D.C.Pa. 1979) (refusing to enter default judgment where evidence was conflicting as to whether service of amended complaint was ever accomplished, and where plaintiff suffered no prejudice by defendant's delay in filing answer to amended complaint), and grant Bowden's request that he be included in the pending motion to dismiss.
2. Statute of Limitations
It is well settled law that it is the state's general or residual statute of limitations for personal injuries which controls for 1983 actions. In New York, this statute is three years. See Black v. Coughlin, 76 F.3d 72 (2d Cir. 1996).
The last day on which Evans could file his claim against those Downstate Correctional Facility guards who allegedly violated his rights on the day of the assault was October 18, 1999, three years after the attack. Evans did file a complaint on this day. In his January 31, 2000 order directing the plaintiff to file an amended complaint, then Chief Judge Griesa of this district found that plaintiff's complaint was received by the Court's Pro Se office on August 19, 1999, that it was submitted without the requisite Prison Litigation Reform Act ("PLRA") Prisoner Authorization form, and that the plaintiff completed and return the correct form to the Court on October 18, 1999. The complaint was thus filed within the three-year statute of limitations, if just barely.
On April 26, 2000 I issued a memorandum and order directing plaintiff to serve the summons and complaint on defendant(s) or to show good cause why service has not been effected by May 26, 2000. In that order I said that "A review of the Court records shows that the complaint in this action was filed on January 31, 2000 . . ." In light of Judge Griesa's order, this statement is obviously not correct, and I so amend the April 26, 2000 order accordingly. The original complaint was filed October 18, 1999.
However, the only person named in the timely October 18, 1999 complaint was a defendant "John Doe." "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." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993) (citations omitted). Even when a suit is brought by a pro se litigant, "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 92d Cir. 1995). As Evans did not identify Esparra or Bowden until March 23, 2000, and as he still has not identified the "3-11" shift corrections officer, the claims against all three individual defendants must be dismissed.
Evans also claims that, in the weeks following the attack, prison officials ignored his requests for additional medical treatment of the injuries he sustained in the October 18 attack. It is now clear, based on plaintiff's own statements, that this failure to treat Mr. Evans for injuries related to October 18 incident occurred only in the few weeks following the incident, and did not continue beyond that point. Because he still has not identified any of the individuals who were involved in his treatment or who denied him treatment, plaintiff's claim for any damages on this issue is clearly time-barred.
Neither Esparra nor Bowden, the only named defendants, have been implicated in the failure to treat. In his August 17 submission, plaintiff does discuss one nurse "L. Maier" of the Downstate Correctional Facility, but only as a possible witness to the fact that his injuries likely stemmed from an assault.
3. Ongoing injuries
To the extent that Mr. Evans still requires medical attention for other injuries (stemming from unrelated attacks), and has not received it, he is obligated under 42 U.S.C. § 1997e(a) of the Prison Litigation Reform Act to pursue his administrative remedies through the grievance procedures established at the correctional facility where he is currently located. See Nussle v. Willitte, 22d F.3d 95, 99 (2d Cir. 2000) (prisoner required to exhaust administrative remedies before filing § 1983 action with respect to prison conditions). It appears Mr. Evans has done so, and there is an ongoing investigation into the state's failure to respond to his complaints. I remind defense counsel of his promise to inquire into the status of these complaints, once he receives a photocopy of the first page of plaintiff's grievance from Mr. Evans.
CONCLUSION
For the reasons above, this action is dismissed. The case is dismissed without prejudice to any rights that Mr. Evans may have stemming from the ongoing grievance procedures or investigations the status of those grievances.
This constitutes the order and decision of this court.