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October 16, 1986

RICHARD AKBAR SALAHUDDIN, et ano., Plaintiffs,
THOMAS A. COUGHLIN, III, et al., Defendants

The opinion of the court was delivered by: SPRIZZO




 Plaintiffs p ro se Richard Akbar Salahuddin and Larry Gurley, bring this action pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3) (1982) seeking a declaratory judgment, damages, and injunctive relief. Defendants, the State of New York, the Governor of New York, the Department of Correctional Services ("DOCS"), the Commissioner of the DOCS, past and present Superintendents of the Greenhaven Correctional Facility ("Greenhaven"), and several employees of Greenhaven, move to dismiss plaintiffs' complaint pursuant to Fed. R. Civ. P. 12(b)(6). Specifically, defendants argue that plaintiffs' complaint is barred by the applicable statute of limitations. For the reasons set forth infra, defendants' motion to dismiss is granted.


 Although plaintiffs' complaint alleges twenty-four causes of action, for the purposes of this motion, plaintiffs' allegations can be stated succinctly. On May 3, 1980, plaintiffs, who at the time were prisoners incarcerated at Greenhaven, were late in returning back to their housing area after attending religious services. See Complaint at PP 16-18. According to the complaint, plaintiffs were late because the corrections officer on duty failed to notify the plaintiffs of the time. See id. at P 17. As a result of this incident, on May 5, 1980, plaintiffs were issued disciplinary tickets.

 An Adjustment Committee hearing was held on that same day. See id. at PP 21-22. At that hearing, plaintiffs allegedly were found guilty of failing "to cooperate with facility 'count' procedures" and plaintiffs were sentenced to three days "keep lock," sentence suspended for ninety days. See id. at PP 25, 27.

 Plaintiffs complain that their constitutional rights were violated prior to and during that hearing. See id. at PP 20-29. The gravamen of plaintiffs' claim is that they were denied due process because the defendants failed to properly investigate the incident before preparing a disciplinary report, the defendants failed to provide the plaintiffs with a copy of the disciplinary report prior to the May 5th hearing, and the defendants improperly prepared the disciplinary report. See id. at PP 21-24. Plaintiffs also allege that their constitutional rights were violated when the Superintendant of Greenhaven Mr. Keenan, or members of his office, reviewed and "sustain[ed]" the adjustment committee decision "directly after" the May 5, 1980 hearing. See id. at PP 30-31, 55-58.

 It is undisputed that plaintiffs' complaint was not received in the Office of the Pro Se Clerk until June 6, 1983.


 Congress has not set forth a federal statute of limitations for actions pursuant to 42 U.S.C. §§ 1981, 1983, and 1985(3), and therefore the Court must borrow the most analagous state law statute of limitations, so long as that limitations period is not inconsistent with federal law. See 42 U.S.C. § 1988; Board of Regents v. Tomanio, 446 U.S. 478, 484-85, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). The most appropriate state law statute of limitations for the present action is the New York statute governing actions based upon personal injury. See Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 1942, 85 L. Ed. 2d 254, (1985); Martin v. City of New York, 627 F. Supp. 892, 900 (E.D.N.Y. 1985); Ladson v. New York Police Dep't., 614 F. Supp. 878, 879 (S.D.N.Y. 1985); Williams v. Allen, 616 F. Supp. 653, 655 (E.D.N.Y. 1985). Therefore, the relevant statute, is N.Y. Civ. Prac. Law § 214(5) (McKinney 1975), which provides for a three year limitations period.

 Plaintiffs' cause of action arose when plaintiffs knew or had reason to know of their alleged injury. See Keating v. Carey, 706 F.2d 377, 382 (2d Cir. 1983); Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) cert. denied, 450 U.S. 920, 67 L. Ed. 2d 347, 101 S. Ct. 1368 (1981). Plaintiffs assert in their memorandum of law that all of the actions allegedly committed by the defendants which "plaintiffs complain or [sic] occurred from May 3 thru May 5, 1980." See Plaintiffs' Opposition to Defendant's Motion ("P.O.") at P 8. *fn1" Moreover, plaintiffs' complaint establishes that the plaintiffs were aware of these alleged actions on or before May 5, 1980. Thus, plaintiffs' complaint alleges that the plaintiffs informed the adjustment committee at the May 5th hearing of all of the events which the plaintiffs complain of in the instant action. *fn2" See Complaint at P 25. In light of these undisputed facts, the Court concludes that plaintiffs' cause of action arose on or about May 5, 1980. Plaintiffs did not commence the instant action however, until June 6, 1983, the date when the complaint was received in the Office of the Pro Se Clerk. See Rosenberg v. Martin, 478 F.2d 520, 522, (2d Cir.) cert. denied, 414 U.S. 872, 38 L. Ed. 2d 90, 94 S. Ct. 102 (1973). Therefore, plaintiffs complaint on its face appears to be barred by the three year limitations period.

 Indeed, plaintiffs concede that under "normal circumstances the defendants would prevail." See P.O. at P 10. However, plaintiffs argue that the defendants should be estopped from asserting a statute of limitations defense. According to the plaintiffs, the defendants caused the plaintiffs to file the action late by interfering with their constitutional right of access to the courts. See id. Specifically, plaintiffs allege that, while Salahuddin and Gurley were both prisoners at the Attica Correctional Facility, Salahuddin was confined to his cell for "disciplinary reasons" from March 1, 1983 until May 20, 1983. Salahuddin claims that he completed writing the instant complaint in late March, 1983 and then repeatedly requested to the prison officials that they allow him and Gurley to be brought together "for the purposes of obtaining a notary to attest to the affirming of the original complaint." After these requests were denied, Salahuddin claims that he signed the complaint and had the signature notarized by other prisoners. He then sent the complaint to Gurley on April 26. The complaint reached Gurley on April 28 and, after signing the complaint, Gurley attempted to return the documents to Salahuddin on May 1. The complaint, however, went to the wrong location and it was returned to Gurley one week later. Salahuddin finally received the complaint back from Gurley on May 27, 1983, when the two met at religious services. Salahuddin then arranged for service of the instant complaint. See generally id. at P 13.

 In determining whether the defendants should be estopped from asserting the statute of limitations in the instant action, the Court must look to state law unless that state law is inconsistent with federal law. See 42 U.S.C. § 1988; Chardon v. Fumero Soto, 462 U.S. 650, 662, 77 L. Ed. 2d 74, 103 S. Ct. 2611 (1983); Robertson v. Wegmann, 436 U.S. 584, 56 L. Ed. 2d 554, 98 S. Ct. 1991 (1977). Under New York law, a defendant will be equitably estopped from asserting a statute of limitations defense if the defendant's misconduct causes the delay between the accrual of the cause of action and the institution of the legal proceeding. See General Stencils, Inc. v. Chiappa, 18 N.Y.2d 125, 127-128, 272 N.Y.S.2d 337, 339-40, 219 N.E.2d 169 (1966). *fn3" The facts alleged by ...

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