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WILLIAMS v. ALLEN

August 26, 1985

TIMOTHY WILLIAMS, Plaintiff, against THOMAS ALLEN and JOSEPH SOVIERO, Defendants.


The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, United States District Judge:

 This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, a prisoner, alleges violations of his civil rights by defendant Thomas Allen, a member of the Nassau County Police Department, and Defendant Joseph Soviero, an attorney, in connection with plaintiff's prosecution for murder in the Supreme Court, Nassau County, in 1980-81. *fn1" Specifically, plaintiff alleges in his amended complaint that defendant Allen used excessive force to coerce him into confessing to the murder charge, and that defendant Soviero, who was appointed by the Court to represent plaintiff, failed to do so in a competent manner. Plaintiff seeks an award of damages as well as attorneys' fees, costs and interest.

 Defendant Allen has moved to dismiss the complaint against him for failure to commence this action within the applicable limitations period, failure to file a notice of claim and failure to state a claim. For the reasons set forth below, defendant Allen's motion is denied in its entirety.

 Background

 The relevant facts with respect to defendant Allen are as follows. On April 20, 1980 plaintiff was arrested and allegedly beaten by defendant Allen. See Amended Complaint PP 8-25. Plaintiff was subsequently convicted and sentenced, and filed this action pro se on June 8, 1981, some fourteen months after his arrest. The plaintiff's original complaint was sixteen pages long and detailed his claims in a narrative manner. Leave to prosecute this action in forma pauperis was granted, along with a direction that process be issued to the United States Marshal for service upon the defendants, on September 2, 1981 by Judge Mishler. The Marshal attempted service on Allen by serving the Office of the Nassau County District Attorney on September 21, 1981.

 On October 9, 1981, the Nassau County Attorney moved to dismiss on behalf of defendant Allen (and another former defendant) for lack of personal jurisdiction or failure to state a claim, or, in the alternative, for a more definite statement. Shortly thereafter, plaintiff requested appointment of counsel. The Clerk of the Court was directed to appoint counsel on December 6, 1982, *fn2" and present counsel for plaintiff accepted appointment and filed a notice of appearance on May 16, 1983.

 Neither counsel for plaintiff nor counsel for defendants prodded this action along on the court calendar, and the outstanding motion to dismiss filed in October 1981 was not heard until October 12, 1984. Counsel for Allen did not appear for oral argument of that motion; however, Allen's motion to dismiss for improper service was granted, with leave to plaintiff to serve Allen properly within thirty days. Following some confusion as to the date by which plaintiff was to re-serve Allen, *fn3" plaintiff was granted an additional twenty days during which he could personally serve Allen with a summons and an amended complaint at the conclusion of a hearing conducted on April 12, 1985. Allen was personally served with process within the twenty-day period, on May 1, 1985, at 1490 Franklin Avenue in Garden City, the same address where Allen was improperly served in September 1981.

 Discussion

 1. Statute of Limitations

 The applicable statute of limitations in an action brought pursuant to 42 U.S.C. § 1983 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.DN.Y. 1985). A federal action is commenced upon the filing of the complaint, Fed. R. Civ. P. 3, as compared to an action brought in a New York state court, where the limitations period is tolled only after the defendant is served with process or otherwise notified of the filing of the summons and complaint. See C.P.L.R. § 203. Because this action was commenced only fourteen months after April 20, 1980, when the claim arose, it was timely filed.

 Although this action was commenced in a timely manner, it is true that defendant Allen was served some 3 1/2 years after the filing of the complaint. Pursuant to Rule 4(j) of the Federal Rules of Civil Procedure, *fn4" the claim against Allen could be dismissed on that basis alone. That rule, however, became effective on February 26, 1983. Prior to that time there was no fixed period during which the summons had to be served following the filing of a complaint; rather, a flexible due diligence standard was applied. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 n.6 (2d Cir. 1985), (citing Siegel, Practice Commentaries U.S.C.A. Rule 4, at 54 (West Supp. 1985)).

 Under either the Rule 4(j) or flexible due diligence standard, I decline to dismiss the complaint against Allen in this action. When service was first attempted upon Allen, the incarcerated pro se plaintiff depended solely upon the United States Marshal to effect service. Under such circumstances, dismissal is inappropriate. Korkala v. National Security Agency, 107 F.R.D. 229, slip op. at 3 (E.D.N.Y. 1985) (Glasser, J.) (where failure to serve is solely the fault of the Marshal, plaintiff has good cause for failure to serve defendants in a timely manner); Davis v. Krauss, 478 F. Supp. 823, 826 (E.D.N.Y. 1979) (where Marshal served defendants three months after statute of limitations had run, complaint would not be dismissed) (pre-Rule 4(j)). In addition, the time to comply with Rule 4(j) may be extended pursuant to Rule 6(b). 4 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1138 (Supp. 1985); see also Arroyo v. Wheat, 102 F.R.D. 516 (D. Nev. 1984). In effect, by granting plaintiff additional time to re-serve Allen on October 12, 1984 and then on April ...


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