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July 18, 1978

Claude PASCHALL, Plaintiff
Thomas MAYONE, Bruce B. Quick, the County of Ulster and Sigmund Brock, Defendants

Robert L. Carter, U.S.D.J..

The opinion of the court was delivered by: CARTER


Plaintiff, Claude Paschall, commenced this civil rights action against the County of Ulster ("County"), and the individual defendants, Thomas Mayone, Bruce Quick and Sigmund Brock, alleging that these defendants violated plaintiff's rights under selected sections of the federal Civil Rights Act. 42 U.S.C. §§ 1981, 1983, 1985, 1986. *fn1" Defendants now move to dismiss the complaint pursuant to Rule 12, F.R.Civ.P., or, in the alternative, for summary judgment pursuant to Rule 56, F.R.Civ.P., on a variety of grounds. *fn2" The defendants further move that the court recuse itself from hearing the instant case. For the reasons set out below, defendants' motion to dismiss as to plaintiff's § 1986 claim is granted; the motion to dismiss as to defendants Quick and Mayone on statute of limitations grounds is denied with leave to renew at trial; and the balance of defendants' motions are denied in all respects.


 Plaintiff has alleged the following "facts" which must be deemed true for purposes of disposing of defendants' motion to dismiss. Jenkins v. McKeithen, 395 U.S. 411, 421, 23 L. Ed. 2d 404, 89 S. Ct. 1843 (1975), Stevens v. County of Dutchess, 445 F. Supp. 89, 90 (S.D.N.Y. 1977) (Carter, J.). In October of 1975, plaintiff, a black muscian, was incarcerated in the Ulster County Jail pursuant to a criminal pretrial detention order of the Kingston City Court. While detained there, defendant Quick, a deputy sheriff in the County, is alleged to have viciously assaulted plaintiff without justification. Such unprovoked attacks on Quick's part are claimed to be commonplace at the Ulster County facility and to be directed, for the most part, at the black members of the prison population. It is further alleged that the County and its Sheriff, defendant Mayone, were very much aware of Quick's violent and racially discriminatory conduct at the jail, and that they did nothing to control his abuses.

 As a direct result of Quick's assault on plaintiff, Paschall allegedly suffered serious injury to his left ear, an injury which later led to the permanent impairment of his hearing in that ear. In addition, plaintiff's jaw was dislocated, making his ingestion of food very difficult.

 Following his encounter with Quick, plaintiff claims that he requested to see a doctor to tend to his injuries. Despite the fact that Paschall was in serious need of such medical attention, it is contended that all of his requests were denied until such time as he would agree to sign a release absolving the defendants from any and all responsibility for the injuries plaintiff suffered as a result of his altercation with Quick. Plaintiff alleges that in order to obtain the medical treatment he needed, he signed the release tendered to him by the defendants -- a full two days after Quick's alleged assault had occurred.

 Upon signing the release, plaintiff was taken to see defendant Brock, a physician employed on a part-time basis by the County to care for the prisoners at the jail. After a cursory examination, it is alleged that Dr. Brock concluded that plaintiff had suffered no serious injury despite the fact that plaintiff's appearance and symptomatology quite clearly indicated that the contrary was true.

 On January 23, 1976, plaintiff filed a timely notice of claim with the County Attorney by registered mail. Then, on January 17, 1977, plaintiff commenced this action seeking compensatory damages of $100,000, and punitive damages of $75,000.


 1. Statute of Limitations:

 Defendants move to dismiss plaintiff's suit on the grounds that it is barred by the applicable statute of limitations. Since the relevant statutory periods may vary both with the cause of action asserted, and the particular defendant against whom it is directed, defendants' contentions must be addressed accordingly.

 A. § 1986 Claim

 Section 1986 of Title 42 of the United States Code provides, by its own terms, that claims brought thereunder must be "commenced within one year after the cause of action has accrued." 42 U.S.C. § 1986. Since the cause of action here at issue accrued on or about October 25, 1975, *fn3" and the instant suit was first commenced on January 17, 1977, this first cause of action is clearly time-barred. See Ervin v. Lanier, 404 F. Supp. 15, 17-18 (E.D.N.Y. 1975). Accordingly, this first cause of action is dismissed as to all defendants.

 B. §§ 1981, 1983, 1985 Claims

 The remaining civil rights provisions which plaintiff invokes do not contain their own statute of limitations period. See 42 U.S.C. §§ 1981, 1983, 1985. "Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under [42 U.S.C. §§ 1983, 1985, or] § 1981, the controlling period would ordinarily be the most appropriate one provided by state law." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1974) (citations omitted); accord, Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, 431 F. Supp. 637, 640 (S.D.N.Y. 1977) (Carter, J.) (§§ 1983, 1985). Thus, "an action brought under the federal Civil Rights Act is subject to the statute of limitations the state courts would apply in an analagous state action." Meyer v. Frank, 550 F.2d 726, 728 (2d Cir. 1967), cert. denied, 434 U.S. 830, 98 S. Ct. 112, 54 L. Ed. 2d 90 (1977). The parties agree, as indeed they must, that it is to New York law that we must turn to determine the governing statutory period, but they disagree as to which of New York's statutes controls.

 In suits brought under §§ 1981, 1983 and 1985, the courts in this circuit have generally adopted the three-year limitations period provided in N.Y.C.P.L.R. § 214(2) (McKinney 1972) for actions "to recover upon a liability . . . . created or imposed by statute . . . ." See, e.g., Meyer v. Frank, supra, 550 F.2d at 728, 728 n.5 (§§ 1983, 1985); Kaiser v. Cahn, 510 F.2d 282, 284 (2d Cir. 1974) (§ 1983); Savage v. Kibbee, 426 F. Supp. 760, 763 (S.D.N.Y. 1976) (Werker, J.) (§§ 1981, 1983). If this three year limitations period were applicable, plaintiff's claims would clearly be timely. The difficulty which this case raises is that because of the nature of the individual defendants now being sued -- a county, a sheriff and deputy sheriff, and a county employed doctor -- there are alternative, shorter, state limitations periods which could arguably supersede the more general statutory period of § 214(2) and control in the instant situation.

 1. County

 With respect to the County, for example, New York law provides that any action seeking to recover damages against a county for injuries allegedly caused by the "misfeasance, omission of duty, negligence or wrongful act . . . . of the county, its officers, agents, servants or employees" must be commenced within one year and ninety days from "the happening of the event upon which the claim is based." See N.Y. County Law § 52 (1) (McKinney 1972); N.Y. Gen. Mun. L. § 50-i (McKinney 1977). It would seem that this specific statutory period regarding counties would control here over the more general provisions of § 214(2). Compare Fine v. City of New York, 529 F.2d 70 (2d Cir. 1975) with Regan v. Sullivan, 557 F.2d 300 (2d Cir. 1977). See also Martin Hodas, East Coast Cinematics, Inc. v. Lindsay, supra. Under the circumstances of this case, however, no choice need be made as between these two statutes. The incidents upon which plaintiff's claim is based occurred on or about October 25, 1975, and the instant complaint was filed on January 17, 1977. Consequently plaintiff's ...

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