Opinion
Civil Action No. 9:10-CV-0595 (TJM/DEP)
07-01-2014
JOHN COSBY, Plaintiff, v. COLLEEN RUSSELL, et al. Defendants.
APPEARANCES: FOR PLAINTIFF: JOHN COSBY, Pro Se 94-A-2671 Green Haven Correctional Facility P.O. Box 4000 Stormville, NY 12582 FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN New York State Attorney General The Capitol Albany, NY 12224 OF COUNSEL: ADRIENNE J. KERWIN, ESQ. Assistant Attorney General
APPEARANCES: FOR PLAINTIFF: JOHN COSBY, Pro Se
94-A-2671
Green Haven Correctional Facility
P.O. Box 4000
Stormville, NY 12582
FOR DEFENDANTS: HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
The Capitol
Albany, NY 12224
OF COUNSEL: ADRIENNE J. KERWIN, ESQ.
Assistant Attorney General
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff John Cosby, a New York State prison inmate, has commenced this action against several corrections employees stationed at the prison facility in which he was confined at the relevant times pursuant to, inter alia, 42 U.S.C. § 1983. Plaintiff's most recent pleading, his third amended complaint, centers upon an alleged assault by defendants that resulted in his sustaining significant injuries. Plaintiff claims defendants violated his constitutional rights, and that they were negligent based upon their failure to protect him from the assault.
In response to plaintiff's third amended complaint, defendants seek its dismissal through the filing of a motion for judgment on the pleadings based on their contention that plaintiff commenced this action after the pertinent statute of limitations expired. For the reasons set forth below, I recommend that (1) plaintiff's state claims be dismissed, sua sponte, as precluded based upon N.Y. Correction Law § 24; and (2) defendants' statute of limitations defense be rejected, and their motion be denied. I. BACKGROUND
In light of the procedural posture of this case, the following recitation is drawn principally from plaintiff's third amended complaint, the contents of which have been accepted as true for purposes of the pending motion. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)); Cooper v. Pate, 378 U.S. 546, 546 (1964). The court has also considered the materials submitted by the plaintiff in opposition to the defendants' motion, Dkt. No. 95, to the extent they are consistent with the allegations set forth in his complaint. See Donhauser v. Goord, 314 F. Supp. 2d 119, 121 (N.D.N.Y. 2004) (Hurd, J.) ("Thus, in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider matters outside of the complaint to the extent they are consistent with the allegations in the complaint." (internal quotation marks omitted)).
Plaintiff is a prison inmate currently being held in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"). Dkt. No. 84 at 2. While he is now incarcerated at the Green Haven Correctional Facility, at the times relevant to this action plaintiff was confined at the Great Meadow Correctional Facility ("Great Meadow"), located in Comstock, New York. Id. at 2.
On May 14, 2007, while assigned to a long-term keeplock cell at Great Meadow, plaintiff filed a grievance accusing Corrections Officer Stormer of threatening him. Dkt. No. 84 at 2. In response to his grievance, plaintiff was transferred away from the area in which Stormer worked and into a general population cell. Id. at 3-4.
"Keeplock" is a form of confinement through which an "inmate is confined to his cell, deprived of participation in normal prison routine, and denied contact with other inmates." Gittens v. LeFevre, 891 F.2d 38, 39 (2d Cir. 1989); accord, Warburton v. Goord, 14 F. Supp. 2d 289, 293 (W.D.N.Y. 1998); Tinsley v. Greene, No. 95-CV-1765, 1997 WL 160124, at *2 n.2 (N.D.N.Y. Mar. 31, 1997) (Pooler, J., adopting report and recommendation by Homer, M.J.) (citing Green v. Bauvi, 46 F.3d 189, 192 (2d Cir. 1995)). "The most significant difference between keeplock and general population inmates is that the former do not leave their cells for out-of-cell programs unless they are a part of mandatory educational programs and general population inmates spend more time out of their cells on weekends." Lee v. Coughlin, 26 F. Supp. 2d 615, 628 (S.D.N.Y. 1998).
Shortly after his transfer, plaintiff was approached by Corrections Officers Bishop and Russell and instructed to dress so that he could be escorted to the prison commissary. Dkt. No. 84 at 4. Once outside his cell, plaintiff requested permission to take his hands out of his pockets while being transported so that he could utilize a handrail to assist him in negotiating a set of stairs. Id. After that request was denied, plaintiff was told to return to his cell. Id. Plaintiff then began to squat with his hands in his pockets and eventually sat down on the floor. Id.
After failing at attempts to pull him to his feet, Bishop and Russell forced plaintiff to lie down on his stomach while they temporarily secured his feet and legs until assistance arrived in response to an alarm sounded by the officers. Dkt. No. 84 at 4. According to plaintiff, before any additional officers arrived, Bishop applied significant pressure to plaintiff's right ear and neck with his baton, and Russell struck plaintiff's ankles and knees with her baton. Id.
Once assistance arrived, plaintiff was handcuffed, lifted to his feet, and taken to a stairwell next to a control booth by Corrections Officer Lennox, at which point Lennox allegedly smashed plaintiff's head into the glass window of the control booth. Id. According to plaintiff, Corrections Sergeant Kline and Russell both allegedly observed Lennox's conduct, but did not attempt to stop the attack. Id. Thereafter, several corrections officers, including Bishop, began kicking plaintiff's feet and struck him with blows to his ankles and legs. Id.
Following the incident plaintiff was taken to the infirmary for treatment, and thereafter was transported in a wheelchair to the facility's special housing unit ("SHU"). Dkt. No. 84 at 6. After arriving at the SHU, plaintiff was strip searched and placed in handcuffs by Corrections Officer Mayo. Id. Plaintiff alleges that Mayo squeezed the handcuffs, causing him pain and discomfort. Id. Mayo then allegedly began to stomp on plaintiff's ankle, causing plaintiff to have a seizure. Id. Corrections Officer Hayes allegedly observed this attack, but made no attempt to intervene. Id.
As a result of the above-described uses of force by corrections officers, plaintiff suffered numerous injuries, including a laceration above his right eyebrow, an abrasion to his left hand, and a fibular fracture to his left ankle. Dkt. No. 84 at 6.
II. PROCEDURAL HISTORY
On May 20, 2010, the court received plaintiff's original complaint in this action, as well as an application for leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1-2. That complaint named Colleen Russell, Robert J. Lennox, Darrell D. Pilon, Scott Bishop, Douglas Wilson, Kyle J. Mulverhill, [f/n/u] Mayo, J. Hayes, [f/n/u] Griffin, E. Pritchard, E. Rich, and W. Kline as defendants. Dkt. No. 1 at 1. Following an initial review of the complaint and IFP application, Senior District Judge Thomas J. McAvoy issued a decision on July 29, 2010, granting Cosby leave to proceed IFP and approving the filing of the complaint, but directing dismissal of plaintiff's claims against defendants Wilson, Mulverhill, Hayes, Griffin, Pritchard, Rich, and Kline, without prejudice and with leave to replead within thirty days. Dkt. No. 4.
On September 30, 2010, in accordance with Judge McAvoy's order, plaintiff submitted his first amended complaint. Dkt. No. 7. That amended pleading named all of the defendants listed in plaintiff's original complaint, with the exception of defendant Griffin, and was again examined by the court for facial sufficiency. Judge McAvoy's review resulted in the issuance of a decision and order, on February 23, 2011, in which the court (1) ordered dismissal of all claims against defendants Griffin, Wilson, and Mulverhill, without prejudice; (2) dismissed plaintiff's due process and equal protection causes of action against defendants Russell and Bishop, without prejudice; and (3) ordered the addition of Dr. Thomas as a defendant based upon allegations against him set forth in plaintiff's first amended complaint. Dkt. No. 9 at 5-6.
On May 17, 2011, following service, defendants moved to dismiss plaintiff's first amended complaint for failure to state a claim upon which relief may be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Dkt. No. 26. That motion resulted in my issuance of a report recommending that certain of plaintiff's claims, including all causes of action arising under state and federal penal laws, his cause of action under 42 U.S.C. § 1985(3), and all claims against defendants Russell and Thomas be dismissed, with leave to replead only with regard to plaintiff's claims against defendants Russell and Thomas and his cause of action under 42 U.S.C. § 1985(3). Dkt. No. 36. That recommendation was adopted in a decision and order issued by Judge McAvoy on March 5, 2012. Dkt. No. 37 at 1-2.
Plaintiff availed himself of this second opportunity to amend by filing a second amended complaint in the action on April 24, 2012. Dkt. No. 39. In response, defendants again moved seeking dismissal of the claims asserted against defendants Hayes, Pritchard, Rich, Kline and Russell for failure to state a claim upon which relief may be granted. Dkt. No. 41. On November 20, 2012, I issued a report recommending that defendants' motion to dismiss be granted as to plaintiff's failure-to-intervene claims against defendants Pritchard and Rich and his excessive-force claim against defendant Russell, and that those claims be dismissed with leave to replead. Dkt. No. 57 at 37-38. I also recommended that defendants' motion to dismiss be granted as to plaintiff's New York Human Rights Law claim against defendants Hayes, Pritchard, Rich, Kline, and Russell, and that the claim be dismissed with prejudice. Id. at 38. I further recommended that plaintiff's failure-to-intervene claim against defendants Hayes, Kline, and Russell be deemed the only cause of action to survive defendants' motion to dismiss. Id. at 38. That report was adopted in a decision and order issued by Judge McAvoy on March 11, 2013. Dkt. No. 64. As a result, plaintiff's failure-to-intervene cause of action against defendants Hayes, Kline, and Russell was the only claim to survive defendants' motion to dismiss plaintiff's second amended complaint. Id. at 2.
Plaintiff again took advantage of the opportunity to amend by filing a third amended complaint, the currently operative pleading, on August 16, 2013. Dkt. No. 84. His third amended complaint asserts claims against remaining defendants Hayes, Kline, and Russell arising under New York State common law, as well as constitutional claims based on alleged violations of his rights under the Eighth and Fourteenth Amendments.
On February 21, 2014, defendants filed a motion for judgment on the pleadings seeking dismissal of plaintiff's most recent complaint. In support of that motion, defendants contend that the the three-year statute of limitations applicable to plaintiff's section 1983 claims expired prior to the filing of his original complaint. Dkt. No. 93-1 at 4. Plaintiff has opposed defendants' motion, arguing that he handed his original complaint to a prison official one day prior to expiration of the statute of limitations. Dkt. No. 95 at 2, 8.
Defendants' motion, which is now fully briefed and ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Legal Standard Governing Motions for Judgment on the Pleadings
Defendants seek dismissal of plaintiff's third amended complaint pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, which provides that "[a]fter the pleadings are closed - but early enough not to delay trial - a party may move for judgment on the pleadings." Fed. R. Civ. P. 12(c). When analyzing a Rule 12(c) motion, the court must apply the same standard as that applicable to a motion under Rule 12(b)(6). See, e.g., Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994); Wynn v. Uhler, 941 F. Supp. 28, 29 (N.D.N.Y. 1996) (Pooler, J.).
A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, calls upon a court to gauge the facial sufficiency of that pleading using a standard which, though unexacting in its requirements, "demands more than an unadorned, the- defendant-unlawfully-harmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a pleading must contain a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Iqbal, 556 U.S. 677-78 (quoting Fed. R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands that a complaint contain more than mere legal conclusions. See id. at 679 ("While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.").
In deciding a Rule 12(b)(6) dismissal motion, the court must accept the material facts alleged in the complaint as true and draw all inferences in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper v. Pate, 378 U.S. 546, 546 (1964); Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005) (Kahn, J.). However, the tenet that a court must accept as true all of the allegations contained in a complaint does not apply to legal conclusions. Iqbal, 556 U.S. at 678.
To withstand a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570); see also Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008). As the Second Circuit has observed, "[w]hile Twombly does not require heightened fact pleading of specifics, it does require enough facts to 'nudge plaintiffs' claims across the line from conceivable to plausible.'" In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop, particular deference should be afforded to a pro se litigant, whose complaint merits a generous construction by the court when determining whether it states a cognizable cause of action. Erickson, 551 U.S. at 94 ("'[A] pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.'" (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)) (citation omitted)); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a plaintiff proceeds pro se, a court is obliged to construe his pleadings liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r of Oneida Cnty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y. 2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
B. Plaintiff's Claims Arising Under New York State Common Law
Defendants do not address plaintiff's state law claims in their motion for judgment on the pleadings. As will be discussed more fully below, whether those claims may be adjudicated in federal court is governed by N.Y. Correction Law § 24 and implicates the court's jurisdiction. The court is authorized to examine subject matter jurisdiction at any time, even where the parties have not raised the issue. See Fed. R. Civ. P. 12(h)(3) ("If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action"); Sekiguchi v. Long, No. 13-CV-1223, 2013 WL 5357147, at *1 (D. Conn. Sept. 25, 2013) ("[T]he court has an obligation to consider its subject matter jurisdiction sua sponte." (citing, inter alia, Joseph v. Leavitt, 465 F.3d 87, 89 (2d Cir. 2006)).
Plaintiff's third amended complaint asserts a negligence cause of action against defendants Kline, Hayes, and Russell, pursuant to New York State common law, arising from allegations that they failed to prevent the use of force applied against him by other corrections officers. Dkt. No. 84 at 7. Additionally, plaintiff asserts a failure to intervene a claim against each defendant arising under (1) the New York State Constitution, (2) New York State Correction Law § 137(5), and (3) DOCCS regulations. Id. at 7-8.
Plaintiff also asserts a claim that he characterizes as "vicarious liability." Dkt. No. 84 at 8. It is well-established that vicarious liability is insufficient as a basis to support a claim under section 1983. See, e.g., Iqbal, 556 U.S. at 676 ("[V]icarious liability is inapplicable to . . . [section] 1983 suits[.]").
By statute, New York vests state employees, including correctional employees, with immunity from suits for damages arising from conduct performed within the scope of their employment. N.Y. Corr. Law § 24. That section provides as follows:
1. No civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of the department, which for purposes of this section shall include members of the state board of parole, in his or her personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.Id.; see also Ierardi v. Sysco, 119 F.3d 183, 186-87 (2d Cir. 1997). Section 24 thus precludes claims against corrections officers brought against them in any court in their personal capacities arising out of the discharge of their duties. Baker v. Couglin, 77 F.3d 12, 14-15 (2d Cir. 1996). Because "a federal court applying pendent jurisdiction is forced to apply state substantive law to a state claim, this would result in inmates being prohibited from advancing such pendent claims along with their federal claims in federal court." O'Diah v. Fischer, No. 08-CV-0941, 2012 WL 987726, at *21 (N.D.N.Y. Feb. 28, 2012) (Homer, M.J.), report and recommendation adopted by No. 08-CV-0941, 2012 WL 976033 (N.D.N.Y. Mar. 22, 2012) (McAvoy, J.). Additionally, because the New York State Court of Claims is one of "limited jurisdiction," hearing only claims against New York State, "[section] 24 amounts to a grant of immunity for corrections officers sued in their personal capacities for claims arising out of the discharge of their duties." Rucano v. Koenigsmann, No. 12-CV-0035, 2014 WL 1292281, at *15 (N.D.N.Y. Mar. 31, 2014) (D'Agostino, J.).
2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of the department shall be brought and maintained in the court of claims as a claim against the state.
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
To be sure, the immunity afforded under section 24 is by no means absolute. Actions taken by corrections employees occurring during the course of their employment but wholly outside of their scope of employment, for example, lack the protection of that provision. The circumstances presented in Ierardi, for example, involving a claim of sexual harassment by a special education teacher employed by the DOCCS against a corrections officer assigned to the same facility, serve to aptly illustrate the type of situation in which section 24 would not afford protection. Ierardi, 119 F.3d at 188-89.
In 2009, the Supreme Court held that section 24 violates the Supremacy Clause to the extent it delegates to the New York State Court of Claims jurisdiction to adjudicate civil rights cases arising under section 1983. Haywood v. Drown, 556 U.S. 729, 734-36 (2009). While the Supreme Court found section 24 violates the Supremacy Clause as it applies to claims brought under section 1983, it did not find the statute unconstitutional when applied to claims arising under New York State law. Accordingly, "courts in this District have held that the Haywood decision does not affect the question of the district court's jurisdiction to hear pendent state law claims against DOCCS employees and have continued to dismiss those claims under Corrections Law § 24." Rounds v. Thompson, No. 12-CV-0953, 2013 WL 3187074, at *4 (N.D.N.Y. June 20, 2013) (Sharpe, J.); see also May v. Donneli, No. 06-CV-0437, 2009 WL 3049613, at *5 (N.D.N.Y. Sept. 18, 2009) (Sharpe, J., adopting report and recommendation by Treece, M.J.) ("A claim brought pursuant to state law does not implicate the Supremacy Clause, and therefore, the Haywood decision does not affect the question of whether this Court has proper jurisdiction to hear [a] pendent state law claim.").
To determine whether section 24 is applicable to a corrections officer's alleged misconduct, "courts generally look at the factors associated with New York's scope of employment analysis." Ierardi, 119 F.3d at 187 n.3 (citing Johnson v. N.Y. State Dep't of Corr. Servs. & Cmty. Supervision, No. 11-CV-0079, 2013 WL 5347468, at *3 (W.D.N.Y. Sept. 23, 2013)). Those factors include
the connection between the time, place and occasion for the act; the history of the relationship between employer and employee as spelled out in actual practice; whether the act is one commonly done by such an employee; the extent of departure from normal methods of performance; and whether the specific act was one that the employer could reasonably have anticipated.Johnson, 2013 WL 5347468, at *3 (citing Riviello v. Waldron, 391 N.E.2d 1278, 1281 (N.Y. 1979)). Ultimately, "an employee will be considered within the scope of his employment so long as he is discharging his duties, no matter how irregularly, or with what disregard of instructions." Cepeda v. Coughlin, 513 N.Y.S.2d 528, 530 (N.Y. 1987) (quotation marks omitted).
In this case, all of plaintiff's allegations against defendants Kline, Hayes, and Russell stem from events that occurred at Great Meadow while all three defendants were on duty. Dkt. No. 84 at 4-6. The alleged incident forming the basis of plaintiff's claims began as he was escorted by defendant Russell and Bishop to the prison commissary. Id. at 4. Defendant Kline arrived as officers, including Bishop and Russell, were lifting plaintiff back to his feet. Id. at 5. According to plaintiff, defendant Hayes was present as corrections officer Mayo restrained him through the use of applied handcuffs and stomped on his ankles after being transported to the SHU. Id. at 6.
Transporting an inmate and subduing that individual, should a disciplinary issue arise, is "common[]" conduct by a DOCCS officer or sergeant. Johnson, 2013 WL 5347468, at *3 (citing Riviello, 391 N.E.2d at 1281). Because each defendant in this case was "discharging his [or her] duties" relating to plaintiff's transportation and confinement, I find that the allegations in the third amended complaint plausibly suggest that defendants were acting within the scope of their employment as DOCCS employees while undertaking the conduct alleged by plaintiff. Cepeda, 513 N.Y.S.2d at 530.
I note that defendants have acknowledged defendants Hayes, Russell, and Kline were employed as corrections employees at the time of the alleged misconduct. Compare Dkt. No. 84 at 2 with Dkt. No. 92 at 1.
Accordingly, pursuant to section 24, only the New York State Court of Claims has proper jurisdiction to hear plaintiff's state law claims "because [he] has alleged acts that clearly fall within the scope of the Defendants' employment duties." Rucano, 2014 WL 1292281, at *16. For this reason, I recommend that both plaintiff's excessive force and negligence claims arising under the New York State Constitution, New York State law, and DOCCS regulations be dismissed, without prejudice to the plaintiff's right to reassert those claims in a court of competent jurisdiction. See Cancel v. Mazzuca, 205 F. Supp. 2d 128, 139 (S.D.N.Y. 2002) ("Because a New York State court (other than the Court of Claims) would dismiss [plaintiff's] state law claims, we do so as well.").
C. Plaintiff's Section 1983 Claims
Plaintiff's remaining claims arise under 42 U.S.C. § 1983. Dkt. No. 84 at 7-8. In support of their motion to dismiss, defendants argue that those claims are barred by the applicable statute of limitations. Dkt. No. 93-1 at 4. In opposition to the motion, plaintiff contends that his claims are timely if the court construes his original complaint as having been filed on the day he handed it to a law library officer at the prison facility in which he was confined. Dkt. No. 95-1 at 2.
The applicable statute of limitations for a section 1983 action is determined from the general or residual statute of limitations for personal injury actions under the laws of the forum state. Owens v. Okure, 488 U.S. 235, 249-50 (1989); accord, Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). Accordingly, in New York, the statute of limitations for a section 1983 action is three years. N.Y. C.P.L.R. § 214(5); see also Connolly v. McCall, 254 F.3d 36, 40-41 (2d Cir. 2001) ("[The plaintiff's] federal constitutional claims, brought pursuant to 42 U.S.C. § 1983, are governed by New York's three-year statute of limitations for personal injury actions[.]"); accord, Pinaud v. Cnty. of Suffolk, 52 F.3d 1138, 1156 (2d Cir. 1995). A claim arising under section 1983 accrues "when the plaintiff knows or has reason to know of the harm that he seeks to redress." Connolly, 254 F.3d at 41 (quotation marks omitted).
For purposes of gauging the timeliness of a pro se prisoner's action, a complaint in a section 1983 case is deemed to have been filed on the date it was conveyed to prison officials for mailing, in most instances measuring the date appearing on the face of the complaint, rather than the date on which it was received by the court. See Houston v. Lack, 487 U.S. 266, 275-76 (1988) (adopting the "mailbox rule" and holding that a pro se prisoner's notice of appeal is deemed filed on the date that the prisoner "deliver[s] it to the prison authorities for forwarding to the court clerk," instead of when it is received by the clerk); Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993), opinion modified on reh'g on other grounds, 25 F.3d 81 (2d Cir. 1994), (applying Houston, where the plaintiff filed a habeas corpus appeal, to complaints arising under section 1983); Torres v. Irvin, 33 F. Supp. 2d 257, 270 (S.D.N.Y. 1998) ("Absent evidence to the contrary, the Court assumes that the prisoner gave his petition to prison officials for mailing on the date that he signed it." (alterations omitted)); accord, McPherson v. Burge, No. 06-CV-1076, 2009 WL 1293342, at *9 (N.D.N.Y. May 5, 2009) (Suddaby, J.) (citing cases); but see Grullon v. City of New Haven, 720 F.3d 133, 141 (2d Cir. 2013) (suggesting that the operative filing date is that on which the court clerk receives the pleading). The Supreme Court adopted this protection because a pro se prisoner loses all contact with his pleading at the moment he delivers it to prison officials. Houston, 487 U.S. at 275; see also Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) (explaining that the mailbox rule is "justified by the litigant's dependence on the prison mail system and lack of counsel to assure timely filing with the court").
In Grullon, the Second Circuit examined a district court's finding that granting the plaintiff leave to amend would be futile. 720 F.3d at 141. The issue in that case was whether a letter, dated April 18, 2010, to a defendant gave that defendant fifteen days notice and an opportunity to remedy the violation at issue, as required by Connecticut state law, before the plaintiff filed suit. Id. The district court found that, where the plaintiff's letter to the defendant was dated April 18, and the complaint was dated May 1, the plaintiff had failed to provide the defendant with the requisite fifteen days to act prior to filing his lawsuit. Id. In remanding the matter to the district court with instructions to allow plaintiff to file an amended complaint, the Second Circuit made the following observation:
First, although the court assumed arguendo (quite generously) that [the plaintiff's l]etter dated April 18 would have been received by the Warden on that date, the finding that the complaint that was 'dated' May 1, was 'filed' on May 1, is contrary to the district court records. The complaint as it appears in the record was date-stamped by the district court as 'FILED 2010 MAY 18'; and the district court docket sheets state that the complaint was filed on May 18.Id. (citations omitted).
On its face, this finding could be regarded as being at odds with Dory and its progeny, which applied the prison mailbox rule to section 1983 cases. Because it seems doubtful that the Second Circuit would reverse course with regard to this issue and abrogate Dory without significant discussion, however, I recommend that the prison mailbox rule be followed in this case, and that plaintiff's complaint be deemed to have been filed when he handed it to prison officials for mailing, rather than on the date on which the court received it. Cf. Sealey v. Giltner, 197 F.3d 578, 585 (2d Cir. 1999) ("That is the teaching of Hewitt, and if Sandin had meant to overrule Hewitt to the extent of precluding a protected liberty interest for all administrative confinements, we would expect to see more pointed language to that effect.").
In this case, because the relevant events giving rise to plaintiff's claims occurred on May 14, 2007, Dkt. No. 84 at 4, this action was timely commenced if plaintiff is deemed to have filed his original complaint by May 14, 2010. In opposition to defendants' motion to dismiss, plaintiff contends that, in accordance with the prisoner mailbox rule, this action was commenced on May 13, 2010, the date on which he delivered his complaint to a prison law library officer. Dkt. No. 95-1 at 2. This assertion appears to be plausible, and is buttressed by the fact the original complaint was notarized and signed on May 13, 2010. Dkt. No. 1 at 11. Above the notary stamp on the complaint, the notary includes the handwritten phrase, "[s]worn to before me this 13 day of May 2010; M. Jacquelyen Kennedy." Id. Additionally, in opposition to defendants' motion to dismiss, plaintiff submitted a letter addressed to him from a law library officer who states that plaintiff "mailed out legal mail from the law library" on May 13, 2010. Dkt. No. 95 at 8. Because a law library officer constitutes a prison official under the prison mailbox rule, and because, pursuant to that rule, the plaintiff is deemed to have filed his complaint one day prior to the expiration of the pertinent statute of limitations, plaintiff's complaint in this matter was timely filed.
Defendants' statute of limitations argument, which is predicated on the assertion that the plaintiff's complaint was filed on May 20, 2010, is therefore unavailing because it does not take into consideration the applicable and well-settled mailbox rule. Dkt. No 93-1 at 4. Accordingly, I recommend defendants' motion for judgment on the pleadings be denied.
IV. SUMMARY AND RECOMMENDATION
Plaintiff's third amended complaint in this action asserts several claims arising under New York State law against defendants Kline, Hayes, and Russell. Because this court lacks jurisdiction over those claims, I recommend they be dismissed, sua sponte.
Turning to defendants' motion and the issue of timeliness of plaintiff's section 1983 claims, I find that defendants have failed to appreciate and apply the well-established prison mailbox rule by contending that this action was commenced on the date the court received plaintiff's original complaint. When plaintiff is given the benefit of that rule, and all inferences are drawn in his favor, the relevant chronology establishes that this action was commenced on May 13, 2010, one day prior to the expiration of the governing statute of limitations, and that his section 1983 claims are therefore timely. Accordingly, it is hereby respectfully
My recommendation is limited to addressing the facial sufficiency of defendants' statute of limitations defense, but does not preclude them from pursuing it at trial if, after completion of discovery and motion practice, there exists a genuine dispute of fact regarding the date on which plaintiff should be deemed to have commenced this action. See Davis v. Bryan, 810 F.2d 42, 45 (2d Cir. 1987) (finding the district court "erroneously granted" the defendants summary judgment because "an issue of material fact exist[ed] as to when then statute of limitations actually began to run"); G.W. White & Son, Inc. v. Tripp, No. 94-CV-0681, 1995 WL 65058, at *3 (N.D.N.Y. Feb. 14, 1995) (Scullin, J.) ("Absent undisputed allegations, affidavits, and/or admissions, the question of when an improvement or project was completed so as to commence the running of the statute of limitations is one of fact to be determined at trial." (quotation marks omitted)).
RECOMMENDED that defendants' motion for judgment on the pleadings (Dkt. No. 93) be DENIED; and it is further
RECOMMENDED that plaintiff's state law claims against defendants Kline, Hayes, and Russell be DISMISSED, sua sponte, without prejudice to the right of the plaintiff to refile those claims in a court with proper jurisdiction.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules.
/s/__________
David E. Peebles
U.S. Magistrate Judge
Dated: July 1, 2014
Syracuse, New York