UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
January 27, 1972
Henry BUSSUE, Plaintiff,
Brodford LANKLER, Assistant District Attorney, et al., Defendants
Gurfein, District Judge.
The opinion of the court was delivered by: GURFEIN
GURFEIN, District Judge.
This plaintiff pro se brings this action pursuant to 42 U.S.C. §§ 1983, 1988 and 28 U.S.C. §§ 2201, 2281. The Court's jurisdiction is invoked under 28 U.S.C. §§ 1331, 1343(3) and (4). The complaint arises from the prosecution of the plaintiff upon an indictment charging him with murder in the first degree, a charge on which he was acquitted by a jury in October 1967. The plaintiff is now a State prisoner on another charge.
The plaintiff seeks general damages of $500,000 and punitive damages of $500,000 from the defendant Lankler, an Assistant District Attorney of New York County, and Jones and MacPherson, police officers in the Police Department of the City of New York.
He also charges Albert Ninna (deceased), the Warden of the Manhattan House of Detention with violating his constitutional rights. The defendants move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and (2), and Rule 12(b)(6) for failure to state a claim upon which relief can be granted, in that the statute of limitations has run. The defendants also move for summary judgment pursuant to Fed. R. Civ. P. 56(b).
In Count 1 the plaintiff complains that Jones and MacPherson deprived him of his constitutional rights by forcing him "to submit to a gruling [sic] interrogation," denying him his rights of communication with his wife and his lawyer, and incarcerating him pursuant to the murder charge. He alleges that the two police officers wilfully absented themselves while Assistant District Attorney Lankler physically and verbally abused him. In Count 3 the plaintiff makes further general allegations that Lankler violated his constitutional rights. Invoking the doctrine of pendent jurisdiction, the plaintiff uses the allegations contained in Count 1 to support his right to recover damages for false arrest, assault, illegal imprisonment, and malicious prosecution as asserted in Counts 2 and 4.
In Count 5 the plaintiff alleges that from November 4, 1966 to October 1969 he was an inmate in the Manhattan House of Detention and that the defendant Ninna, acting as Warden of that facility, deprived him of his constitutional rights. The plaintiff alleges that "basic health regulation" was not observed, that Ninna "imposed arbitrary standards of communication on plaintiff as a non-felon," and that the plaintiff was forced into the overcrowded company of "'time' inmates from insane asylum, drunks, derelicts, many were constantly thrown into cells with inmates who were not sentenced and not convicted of any crime and many were thrown into plaintiff's cell without the necessary precaution."
Even assuming arguendo that the Court has the requisite jurisdiction and that the plaintiff states a colorable claim under § 1983, Counts 1 and 3 must be dismissed as time-barred. The period of limitation applicable to an action brought under § 1983 is "that which New York would enforce had an action seeking similar relief been brought in a court of that state." Swan v. Board of Higher Education of City of New York, 319 F.2d 56, 59 (2 Cir. 1963). The plaintiff's cause of action derives from a statute (42 U.S.C. § 1983) and a three-year statute of limitations applies to "an action to recover upon a liability . . . imposed by statute . . ." New York CPLR § 214(2) (McKinney, 1963). See Swan v. Board of Higher Education of City of New York, supra at 60; Romer v. Leary, 425 F.2d 186 (2 Cir. 1970); Laverne v. Corning, 316 F. Supp. 629, 634 (S.D.N.Y. 1970); Beyer v. Werner, 299 F. Supp. 967, 969 (E.D.N.Y. 1969).
The plaintiff was acquitted of the murder charge and released from prison on October 25, 1967. This action was commenced on August 5, 1971, well beyond three years after the date on which the plaintiff's disability ended and the statutory period began to run. New York CPLR § 208 (McKinney 1963).
Although the plaintiff was not out of prison for a full three years after October 25, 1967, the reincarceration does not toll the statute.
"'[Where] a disability existing at the time of the accrual of the cause of action is removed the statute will then run and will not be suspended by any subsequent intervening disability . . .'" Jordan v. State of New York, 56 Misc. 2d 1032, 1035, 290 N.Y.S. 2d 621, 626 (N.Y. Ct. of Claims 1968), citing Gershinsky v. State of New York, 6 A.D. 2d 964, 966, 176 N.Y.S. 2d 667 (3rd Dept. 1958), aff'd, 6 N.Y. 2d 798, 188 N.Y.S. 2d 190, 159 N.E. 2d 681 (1959). Counts 1 and 3 are time-barred.
The only cause of action which is alleged possibly to have accrued after October 1967 is asserted in Count 5 of the complaint. The plaintiff charges the then Warden of the Manhattan House of Detention with failure to abide by health regulations, failure "to supervise and control," and imposition of "aribtrary standards of communication on plaintiff as a non-felon . . ." These deprivations are alleged to have occurred between November 4, 1966 and the latter part of October 1969.
The general claim that the Warden failed properly to enforce health regulations is insufficient to support a claim of deprivation of constitutional rights under Section 1983. See Church v. Hegstrom, 416 F.2d 449 (2 Cir. 1969). Similarly, the alleged imposition of arbitrary standards on the plaintiff's attempts to communicate will not support a claim under Section 1983. There is no allegation that the alleged interference with the plaintiff's mail denied him access to the courts. "[This] court will not interfere, absent a showing of a resultant denial of access to the courts or of some other basic right retained by a prisoner." Argentine v. McGinnis, 311 F. Supp. 134, 137 (S.D.N.Y. 1969); see generally, Sostre v. McGinnis, 442 F.2d 178, 199-201 (2 Cir. 1971). The plaintiff's assertion that the Warden failed "to supervise and control" is simply too general to meet the pleading requirement in a Civil Rights case. See Valley v. Maule, 297 F. Supp. 958 (D. Conn. 1968). Furthermore, the plaintiff's more specific allegations of general disorder, discomfort and inconvenience in the Manhattan House of Detention suggest the deprivation of no right "secured by the Constitution and laws . . ." 42 U.S.C. § 1983. Federal courts simply cannot enforce the opening or closing of windows in cold weather, occurrences alleged to be in violation of constitutional rights.
Accordingly, all claims against the defendants Jones and MacPherson are dismissed pursuant to Fed. R. Civ. P. 12(b)(6) as time-barred. The claims against the defendant Ninna, Warden of the Manhattan House of Detention, must also be dismissed for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). See Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2 Cir. 1964).
The plaintiff's pendent state claims for assault, false arrest and imprisonment, and malicious prosecution are also dismissed accordingly.