Opinion
02 Civ. 6534 (GEL)
March 17, 2003
Dan Cherner, Esq., New York, N.Y., for plaintiff, Mahlon Moore.
John H. Graziadei, Assistant Corporation Counsel, New York, New York (Michael A. Cardozo, Corporation Counsel of the City of New York, of counsel) for defendants The City of New York, N.Y.C Dept. of Corrections, and Johnnie Bradford, Warden.
OPINION AND ORDER
Plaintiff Mahlon Moore brings this action against the City of New York, the Warden of a city jail, and several unknown corrections officers, alleging that defendants failed to protect him, while he was incarcerated at Riker's Island, from an attack by fellow inmates in which he was stabbed and seriously injured. Defendants move to dismiss on statute of limitations grounds. The motion will be granted.
Plaintiff filed his complaint on August 15, 2002. Although the complaint alleges that he was attacked "in or around September, 1999" (Compl. ¶ 15), both the police reports of the incident and the indictment of plaintiffs attackers state that the attack occurred on June 25, 1999 (Graziadei Decl. Ex. B, C), and plaintiff now concedes that the latter is the correct date (D. Mem. at 2). Plaintiff does not dispute that the applicable statute of limitations is three years, Owens v. Okure, 488 U.S. 235, 251 (1989), and that the cause of action accrued when he became aware of his injury, Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), in effect, on the date of the assault.
Plaintiff argues only that the limitations period should be equitably tolled because he remained incarcerated for about a year after the attack, because after his release "it took him some time to discern that he might have claims" against the City, and because he did not remember the exact date of the attack. (D. Mem. 2-3.)
No affidavit from plaintiff supports these factual claims, none of which appear in the complaint. Rather, they are set forth in a vague hearsay affidavit by plaintiffs lawyer, who does not state when plaintiff sought counsel, other than that it was "[s]ometime after" his release from prison in about August 2000. (Cherner Decl. ¶¶ 2-3.)
This is insufficient. As plaintiff concedes, the mere fact of imprisonment "does not toll a statute of limitations." Walker v. Jastremski, 159 F.3d 117, 119 (1998). Equitable tolling, a doctrine that only "applies in the `rare and exceptional circumstance,'" Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir. 1999)), has been granted only when the plaintiff pleads with particularity "(1) the wrongful concealment by the defendant of its actions; (2) the failure by the plaintiff to discover the operative facts underlying the action within the limitations period, and (3) the plaintiffs due diligence to discover the facts." Griffin v. McNiff, 744 F. Supp. 1237, 1256 (S.D.N.Y. 1990), aff'd, 996 F.2d 303 (2d Cir. 1993) (quoting Donahue v. Pendleton Woolen Mills, Inc., 633 F. Supp. 1423, 1443 (S.D.N.Y. 1986)). See also Berkson v. Del Monte Corp., 743 F.2d 53, 55 (1st Cir. 1984) and cases cited therein.
Plaintiff neither pleads nor asserts in his motion papers any of these elements, and his complaint and his attorney's assertions actually demonstrate the contrary: (1) No defendant is claimed to have concealed anything about the case; plaintiff clearly knew about the assault and about the actions and alleged inaction of the corrections officers, both on the scene and in connection with ethnic tensions in the jail, from the time they occurred. (2) According to his lawyer, plaintiff discovered that he "had viable claims" within the limitations period. (Cherner Decl. ¶¶ 3-8.) (3) Far from showing due diligence to discover facts, neither plaintiff nor his attorney seems to have taken even simple steps to discover from public documents the date of the attack, and the complaint alleges no facts not known to plaintiff from the date of his injury.
As this Court's docket reflects, prisoners, with or without counsel, have no difficulty filing lawsuits alleging failure of guards to protect them from attack See e.g., Rodriguez v. Ghoslaw, Dkt. No. 98 Civ. 4658 (GEL), 2002 WL 1424586, at *1 (S.D.N.Y. June 28, 2002); Cardew v. Fleetwood, Dkt. No. 98 Civ. 4704 (GEL), 2001 WL 533728, at *1 (S.D.N.Y. May 17, 2001). Plaintiff's failure to bring suit, during the year he was in prison or during the two years following his release, allowed his claim to lapse.
Accordingly, the complaint is dismissed because it was not brought within the required limitations period, and no basis for equitable tolling has been shown.
SO ORDERED.