Opinion
9:06-CV-168 (GLS/DRH).
March 30, 2007
FOR THE PLAINTIFF: STEVEN PEREZ, Plaintiff, Pro Se, 03-A-4710, Arthur Kill Correctional Facility, Staten Island, New York.
FOR THE DEFENDANTS: HON. ANDREW CUOMO, New York Attorney General, GERALD J. ROCK, Assistant Attorney General, The Capitol, Albany, New York.
MEMORANDUM-DECISION AND ORDER I. Introduction
Plaintiff pro se Steven Perez brings this action pursuant to 42 U.S.C. § 1983. See Dkt. No. 2; see also 42 U.S.C. § 1983. Perez specifically alleges that he was confined beyond the maximum expiration date of his prison sentence. Defendants' motion to dismiss was referred to Magistrate Judge David R. Homer for report and recommendation. See Dkt. No. 19; see also 28 U.S.C. § 636(b)(1)(A), (B); N.D.N.Y. R. 72.3(c); Gen. Order No. 12, § D(1)(G).
Perez was sentenced to concurrent sentences of 2 ½ to 7 ½ years. He alleges that the maximum expiration date of his prison sentence was December 3, 2000. However, he was not released from prison until May 21, 2001, 159 days later.
Perez's complaint does not specify what constitutional rights he is seeking to vindicate. Construing the complaint broadly, Judge Homer simply adopted Perez's characterization, namely "excessive detention." See Report-Recommendation ("R R") at 2, Dkt. No. 26. Judge Homer then concluded that Perez failed to meet the three-year statute of limitations applicable to § 1983 actions, and he recommended that the complaint be dismissed in its entirety. See id.
The Clerk is directed to append Judge Homer's Report-Recommendation to this decision, and familiarity is presumed. See Dkt. No. 26.
Perez has now filed a timely objection to Judge Homer's report. See Dkt. No. 27. The court reviews Perez's sole specific objection de novo. See Almonte v. N.Y. State Div. of Parole, 9:04-CV-484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006). Upon careful consideration of the arguments, the relevant parts of the record, the applicable law, and the additional reason recited, the court adopts the Report-Recommendation.
II. Discussion
Perez's only specific objection attacks Judge Homer's conclusion that his claim is barred by the three-year statute of limitations. He argues that he was continuously and unlawfully held from December 3, 2000 until May 21, 2001. Thus, he concludes that the statute of limitations runs from his release date, and that May 21, 2001 is the accrual date of his claim, not December 3, 2000.
Perez filed his original complaint on March 29, 2004, three years and four months after December 3, 2000.
Perez's complaint does not allege an "excessive detention" claim. Instead, it alleges false imprisonment; namely, unlawful detention as a result of legal process. See Wallace v. Katko, 127 S. Ct. 1091, 1095 (2007). Furthermore, his cause of action accrued when he was confined pursuant to that process, and the statute of limitations began to run from that time. See id. at 1096; see also Martinez v. City of N.Y., 06-CIV-13649, 2007 WL 646208 (S.D.N.Y. Feb. 22, 2007). Accordingly, Perez knew that his prison release date had been miscalculated as early as November 1996, he was subjected to confinement pursuant to the miscalculation process on December 3, 2000, and the statute of limitations expired three years from that date.
There is no basis in any of the underlying papers to construe Perez's complaint as alleging malicious prosecution, nor is there any basis to apply the doctrine of equitable estoppel as it relates to the statute of limitations.
III. Conclusion
Having reviewed the Report — Recommendation in its entirety, and Perez's objection de novo, the court adopts Judge Homer's recommendation for the reasons he articulated and for the additional reason articulated by this court.WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the motion to dismiss ( Dkt. No. 19) is GRANTED; and it is further
ORDERED that the Clerk of the Court enter judgment and close this case; and it is further
ORDERED that the Clerk of Court provide copies of this Order to the parties.
IT IS SO ORDERED. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK APPEARANCES: OF COUNSEL: DAVID R. HOMER U.S. MAGISTRATE JUDGE
----------------------------------------------------- STEVEN PEREZ, Plaintiff, No. 06-Cv-168 (GLS/DRH) v. GLENN GOORD, Commissioner, Department of Correctional Services; MICHAEL McGINNIS, Superintendent, Southport Correctional Facility; ROBERT K. WOODS, Superintendent, Upstate Correctional Facility, Defendants. ----------------------------------------------------- STEVEN PEREZ No. 03-A-4710, Plaintiff Pro Se Arthur Kill Correctional Facility 2911 Arthur Kill Road Staten Island, New York 10309 HON. ELIOT SPITZER GERALD J. ROCK, ESQ. Attorney General for the Assistant Attorney General State of New York State of New York Attorney for Defendants The Capitol Albany, New York 12224-0341REPORT-RECOMMENDATION AND ORDER
This matter was referred to the undersigned for report and recommendation pursuant to 28 U.S.C. § 636(b) and N.D.N.Y.L.R. 72.3(c).
I. Background
The facts as alleged in the amended complaint are assumed to be true for the purposes of this motion. See Section II(A) infra.
On March 7, 1994, Perez was sentenced to an indeterminate sentence of two and one-half to seven and one half years imprisonment. Am. Compl. at 3. Perez contends that the maximum expiration of this term was December 3, 2000 but that he was not released until May 21, 2001, 159 days later. Id. In November 1996, Perez notified Michael McGinnis, Superintendent of Southport Correctional Facility, of his purported release date and that the DocS calculation was in error. Id. In December 1996, Perez notified Glenn Goord, Commissioner of DOCS, of the same contention. Id. When Perez was transferred from Southport Correctional Facility to Upstate Correctional Facility, he informed Superintendent Robert Woods of the alleged miscalculation. Id. This action followed.
II. Discussion
Perez asserts one cause of action for his alleged excessive detention. Defendants seek dismissal of the claim.
A. Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint that states no actionable claim. When considering a motion to dismiss, "[a] court must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant. . . ." Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Dismissal is only warranted if it appears beyond a reasonable doubt that the non-moving party can prove no set of facts in support of his or her claim which would be entitled to relief. See Hishon v. King Spalding, 467 U.S. 69, 73 (1984). In evaluating whether these requirements are met, complaints prepared pro se are "held to less stringent standards than formal pleadings drafted by lawyers. . . ." Estelle v. Gamble, 429 U.S. 97, 106 (1976).When a motion to dismiss is brought prior to an answer and discovery, a court is loath to grant the motion. Lugo v. Senkowski, 114 F. Supp. 2d 111, 113 (N.D.N.Y. 2000) (Kahn, J.) (citing Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir. 1982)). This is true even if "the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him [or her] to relief." Id. "'This caution against dismissal applies with even greater force where the complaint is pro se, or where the plaintiff complains of a civil rights violation.'" Id. (quotingEaston v. Sundram, 947 F.2d 1011, 1015 (2d Cir. 1991)).
B. Statute of Limitations
Defendants contend that Perez's claim under § 1983 is barred by the statute of limitations because Perez had actual knowledge of his claim in December 2000, the beginning of the extended prison term. While there is no provision in 42 U.S.C. § 1983 for a statute of limitations for a civil rights claim, 42 U.S.C. § 1988 provides that state law may apply if not inconsistent with the Constitution or federal law. 42 U.S.C. § 1988(a) (1994); Moor v. County of Alameda, 411 U.S. 693, 702-703 (1973). In New York, for a § 1983 suit seeking injunctive relief, the applicable statute of limitations is the three-year period governing suits to recover upon a liability created or imposed by statute. See Owens v. Okure, 488 U.S. 235, 249-51 (1989); Romer v. Leary, 425 F.2d 186, 187 (2d Cir. 1970); N.Y. C.P.L.R. 214(2) (McKinney 2003).
Federal law governs the determination of the accrual date for purposes of a § 1983 claim. Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002). A claim accrues when the plaintiff "knows or has reason to know" of the harm. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). The critical time for accrual purposes is when a plaintiff became aware that he or she was suffering a wrong for which damages could be recovered in a civil rights action. Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980). State tolling rules, like state limitation periods, govern federal actions brought under § 1983 except when inconsistent with the federal policy underlying § 1983. Board of Regents v. Tomanio, 446 U.S. 478 (1980); Orminston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997).
Perez filed his original complaint here on March 29, 2004. Pl. Response (Docket No. 22) at 2. In his amended complaint, Perez alleges that the date which gave rise to his claim was December 3, 2000. Am. Compl. at 2. Furthermore, he alleges that in November 1996 he informed defendant McGinnis of the alleged miscalculation of Perez's maximum expiration date. Id. at 3. Additionally, Perez alleges that he wrote to defendant Goord in December 1996 informing him of the miscalculation of his maximum expiration date and that after being transferred to Upstate Correctional Facility, he notified defendant Woods of the miscalculation. Id. at 3. Nevertheless, Perez asserts on this motion that he did not have knowledge of the injury until "just prior to filing of complaint, which is dated March 29, 2004." Docket No. 22 at 2. Perez is bound, however, by the allegations of his amended complaint and facts asserted in a memorandum cannot be considered on a motion to dismiss. See Polanco v. City of New York Dep't of Corrs., No. 01-CV-7.59(AGS), 2002 WL 272401, at * (S.D.N.Y. Feb 26, 2002) (holding that "[i]t is well established that a plaintiff may not amend his pleading through papers offered in opposition to a motion to dismiss").
Perez's claims thus accrued no later than December 3, 2000, when Perez had reason to know and actual knowledge that he was being deprived of his constitutional rights. Eagleston, 41 F.3d at 871. Perez had three years from December 3, 2000 to file a complaint against defendants. However, his complaint was filed almost 3 years and fours months later on March 29, 2004. Thus, Perez's claim is outside the three-year period and defendants' motion to dismiss on this ground should be granted.
III. Conclusion
For the reasons stated above, it is hereby:
RECOMMENDED that defendants' motion to dismiss (Docket No. 19) be GRANTED.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Small v. Secretary of HHS, 892 F.2d 15 (2d Cir. 1989); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).