UNITED STATES DISTRICT COURT OF EASTERN DISTRICT OF NEW YORK
August 21, 1985
DURVAN MARTIN, Plaintiff, v THE CITY OF NEW YORK, THE POLICE DEPARTMENT OF THE CITY OF NEW YORK, and their agents, among them Police Officer "JOHN KRUEGER," the first name being unknown at the present time, Defendants
The opinion of the court was delivered by: GLASSER
GLASSER, United States District Judge:
Defendant Edward Krueger has moved for summary judgment dismissing the complaint against him. For the reasons set forth below, his motion is granted.
The facts underlying this action are not in dispute.
Plaintiff was arrested by defendant Krueger on July 6, 1981 for the rape and sodomy of Linda Krueger, the daughter of the defendant. He was released on bail on the following day. Plaintiff was acquitted after a jury trial by verdict rendered December 9, 1981.
This action, brought pursuant to 42 U.S.C. § 1983 and state law, was commenced on March 4, 1983 by the filing of a complaint. Although the municipal defendant was served on March 4, 1983, the individual defendants were not served at that time. The numerous discovery disputes regarding the whereabouts of the individual defendants, as well as several other matters, are documented in the record and will not be discussed further. In any event, this Court was first informed of plaintiff's desire to receive the individual defendants' addresses from the City by letter dated October 28, 1983.
By letter dated April 26, 1984, the City informed plaintiff's counsel that Krueger and Gounaris could be served care of Mr. Tim Vance of the Legal Department of the New York City Police Department.
Less than three weeks later, by letter dated May 15, 1984, the City informed plaintiff's counsel that it could not accept service on behalf of Krueger.
The text of that letter reads:
By letter dated April 26, 1984, I informed you that the New York City Police Department was willing to accept service of papers for Krueger and Gounaris, who have retired from the police force. At that time I mistakenly believed that Krueger still resided in New York City.
I have recently learned that Krueger does not reside in New York City, but rather in Florida and for that reason, we cannot [sic] accept service on his behalf. Please let me know if you have any questions concerning this matter.
Following receipt of the above letter, plaintiff's counsel did not seek to compel disclosure of Krueger's address by formal motion. However, after discussions before Magistrate Chrein, the Magistrate issued a combination order on April 29, 1985 directing the City to provide the full name and current full address of Krueger to plaintiff's counsel within two weeks of the date of that order, and issuing an order of protection as to the disclosure of that address. It is undisputed that plaintiff's counsel did receive that address. Notwithstanding the Corporation Counsel's letter of May 15, 1984 - - nearly one year earlier - - plaintiff's counsel attempted to serve Krueger by forwarding a copy of the summons and complaint, by regular mail, to Mr. Vance of the Police Department. To date Krueger has not returned any acknowledgment of service and service upon him in Florida has not been made.
The substantive parts of plaintiff's claims are detailed in my Memorandum and Order of June 20, 1985, supra note 1, and will not be again reviewed.
The instant motion to dismiss is predicated upon plaintiff's failure to serve Krueger properly, the applicable statutes of limitations and notice of claim requirements, and the merits of plaintiff's claims. In response to defendant's motion, plaintiff has indicated that the only claims which he seeks to press against defendant Krueger at this time are for conspiracy to conceal information from the Grand Jury and/or the District Attorney, allegedly in violation of 42 U.S.C. § 1985, and making racist remarks in the conduct of official police business - - allegedly in violation of 42 U.S.C. § 1985, and for malicious prosecution.
1. Improper Service
The facts underlying this action support the conclusion that this case may be disposed of on procedural grounds alone. First, it must be noted that service on Krueger has not been made in compliance with either Rule 4(d)(1) of the Federal Rules of Civil Procedure or § 308 of the New York Civil Practice Law and Rules, the statutes applicable to service upon an individual defendant. It is abundantly clear that plaintiff knew as early as May 1984 that the Police Department could not accept service for defendant Krueger; nevertheless plaintiff attempted service in that manner nearly one year later. Thus, this Court has not acquired personal jurisdiction over defendant Krueger.
2. Statutes of Limitations
Next, it is appropriate to note that counsel for Krueger has improperly designated as one of the grounds for this motion failure to comply with the applicable statutes of limitations. Unlike an action brought purely pursuant New Yorx state law, where an action is commenced by service of a summons and complaint, a federal action is commenced upon the filing of the complaint. Fed. R. Civ. P. 3. The applicable statute of limitations in a § 1983 action is the state limitations period for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 1947-48, 85 L. Ed. 2d 254 (1985). In New York, that period is three years. C.P.L.R. § 214. Rodrigues v. Village of Larchmont, 608 F. Supp. 467, 477 (S.D.N.Y. 1985). The logic of Wilson suggests that the same period apply to a cause of action arising under § 1985 and at least one federal court in this Circuit has implicitly done so. See Dumas v. Agency for Child Development - - New York Head Start, 569 F. Supp. 831 (S.D.N.Y. 1983). A claim for malicious prosecution is subject to a one-year limitations period, C.P.L.R. § 215, and such a cause of action accrues on the date when the defendant is acquitted.
Examining this record for the purposes of determining when plaintiff's remaining causes of action accrued, it is apparent that the § 1983 claim against Krueger arising from the allegedly racist remark made by him while arresting plaintiff accrued on July 6, 1981, the date of the arrest. The accrual date for the malicious prosecution claim is December 9, 1981, the date of plaintiff's acquittal. The date of accrual of plaintiff's purported § 1985 claim, described above, is unclear; however, a liberal application of the statute of limitations would run from the date of acquittal, December 9, 1981.
3. Rule 4(j)
In light of the above, it is clear that plaintiff's § 1983 and § 1985 claims were timely when the complaint was filed on March 4, 1983; however, plaintiff's malicious prosecution claim is clearly time-barred. What is apparent, however, is that plaintiff failed to serve defendant Krueger within 120 days after the filing of the complaint as required by Rule 4(j) of the Federal Rules of Civil Procedure, which provides in pertinent part:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.
Rule 4(j) became effective on February 26, 1983, prior to the filing of this complaint.
Construing that portion of defendant's motion based on the statutes of limitations also to invoke the requirements of Rule 4(j),
it is apparent that the "good cause" which plaintiff urges should prevent dismissal under this rule arises from the Corporation Counsel's alleged refusal to provide plaintiff's attorney with Krueger's address. Had plaintiff diligently sought to serve Krueger with process, however, he could have moved to compel the Corporation Counsel to disclose the address, or moved, pursuant to C.P.L.R. § 308(5) for a court order directing an alternative method of service on Krueger. Neither of these available options was pursued by plaintiff, and Krueger was improperly served more than two years subsequent to the filing of the complaint - - and nearly one year after plaintiff's counsel learned that the Police Department could not accept service on Krueger's behalf. As plaintiff has not demonstrated good cause for his failure to serve Krueger within 120 days of March 4, 1983, the complaint against him is also dismissble under Rule 4(j).
4. The Merits
Even if plaintiff had properly served defendant Krueger, the merits of his § 1983 and § 1985 claims against that defendant would not survive this motion for summary judgment. The heart of plaintiff's § 1983 claim is a racist remark allegedly made by Krueger, within the hearing of plaintiff's mother, Linda Martin, at the time of the arrest of plaintiff. As discussed in detail in the June 20 Memorandum and Order at 5-7, the only evidence to substantiate that claim, the affidavit of Linda Martin, is insufficient to defeat the instant motion.
As to plaintiff's § 1985 claim, the only paragraphs of the complaint which can be read to support this cause of action (§§ 28, 56, 59, 64) against Krueger are part of plaintiff's former false arrest and malicious prosecution claims. Plaintiff's recent allegations that the individual defendants conspired to conceal information from the Grand Jury and/or District Attorney, supra at 3, are not alleged in the complaint; more important, the plaintiff has come forward with no facts to substantiate his allegations of conspiracy. It is well-settled that vague and conclusory allegations of a conspiracy are insufficient to state a claim under § 1985; specific facts substantiating such a claim must be set forth, and later proven, by the plaintiff. See, e.g., Powell v. Workmen's Compensation Board, 327 F.2d 131, 137 (2d Cir. 1964); Bodenmiller v. Stanchfield, 557 F. Supp. 857 (E.D.N.Y. 1983). The plaintiff here has failed to do either.
For the reasons set forth above, defendant Krueger's motion for summary judgment is granted.