know of them immediately. Benyi commenced this action on January 7, 1991. Therefore, I must dismiss Benyi's Section 1981, 1983, 1985, and 1986 claims based on events alleged to have occurred in or before the Summer of 1987, unless Benyi has grounds, implied in his papers, for tolling the statute.
Benyi's implied negligence claim based on his injuries is part of the same case or controversy as his Section 1983 claims. Thus, this court may exercise supplemental jurisdiction over it. 28 U.S.C. § 1367 (1990). However, CPLR Section 214 also bars any tort claim Benyi may have from inmate Haven's assault not made within three years. Benyi's negligence claim accrued when his Section 1983 claim accrued, May 23, 1987. Thus, absent any alleged or apparent grounds for tolling the statute, I must also dismiss Benyi's negligence claim as time barred.
Federal courts must apply state tolling provisions to federal claims unless Congress established specific tolling rules. Board of Regents v. Tomanio, 446 U.S. 478, 484, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Johnson v. Railway Express Agency, 421 U.S. 454, 463-64, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). If federal policy underlying the cause of action conflicts with a state's tolling provision, such policy considerations will displace the state's rule. Woods v. Candela, 13 F.3d 574, 576 (2d Cir. 1994). The Supreme Court identified deterrence of future violations and compensation for past violations as two of the principle policies underlying 42 U.S.C. § 1983. Id. at 577; Tomanio, 446 U.S. at 488. However, New York's three-year statute of limitations conflicts neither with the deterrence nor the compensation goals of Section 1983. Injured parties have adequate time to enforce their claims at 577. Thus, New York's tolling provisions apply here.
Under New York law, imprisonment does not act as a toll. N.Y. Civ. Rights § 79, subd. 2; see also, Pinaud v. County of Suffolk, 798 F. Supp. 913, 920 (E.D.N.Y. 1992). Benyi could argue that although he knew of the Defendants' injurious acts at the time they occurred, he did not learn of the supposed conspiracy until later. However, Benyi must plead specific facts to support his claim of conspiracy. "Such conclusory allegations of conspiracy are insufficient to sustain a complaint." Zemsky v. New York, 821 F.2d 148, 151 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 396, 108 S. Ct. 456 (1987). Furthermore, plaintiffs may not toll the statute of limitations by pleading that the separate acts were part of a continuing conspiracy. Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1980). Allowing a plaintiff to toll the statute of limitations on this basis would defeat its purpose to preclude stale claims. Id. Because Benyi neither argues nor implies a basis to toll the statute of limitations, I dismiss his 42 U.S.C. §§ 1981, 1983, 1985, and 1986 claims relating to the events in or before the Summer of 1987 as a matter of law.
D. The Eight Amendment and Substantive Due Process Claims
Benyi claims that unknown "Vigilantes," presumably the Defendants, sent him a death threat which appears to have been signed by inmate Haven. The three-year statute of limitations for Section 1983 applies to claims regarding the right to personal security under the Due Process Clause and the Eighth Amendment. Ortiz, 772 F. Supp. at 1432. Because Defendants do not dispute Benyi's allegation that he received the threat on November 14, 1990, Benyi filed this claim timely.
Prison officials have a Constitutional duty to protect the personal security of inmates. Youngberg v. Romeo, 457 U.S. 307, 315, 73 L. Ed. 2d 28, 102 S. Ct. 2452 (1982). The Due Process Clause of the Fourteenth Amendment recognizes personal security as an "Historic liberty interest." Ingraham v. Wright, 430 U.S. 651, 672, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977). Lawful confinement, even for penal purposes, does not extinguish this right. Youngberg, 457 U.S. at 315; see also Hutto v. Finney, 437 U.S. 678, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978). The state is responsible for the inmate's security. Davidson v. O'Lone, 752 F.2d 817, 820 (3rd. Cir. 1984). To properly assert a claim under both the Fourteenth and the Eighth Amendment, Benyi must show that prison officials were deliberately indifferent to his personal security. Wilson v. Seiter, 501 U.S. 294, 303, 115 L. Ed. 2d 271, 111 S. Ct. 2321 (1991); Redman v. County of San Diego, 942 F.2d 1435, 1440 (9th Cir. 1991). However, occasional isolated attacks by inmates or guards are not actionable under the Eighth Amendment. Woodhous v. Virginia, 487 F.2d 889, 890 (4th Cir. 1973). In addition to the timely claim based on the letter from the "Vigilantes," Benyi can adduce evidence at trial of inmate Layler's threat, the prison's response to threats against Benyi, and inmate Haven's assault in 1987. The last three time-barred events cannot give rise to independent claims, but they can support a Section 1983 claim based on the "Vigilante" letter. On these facts, Benyi has raised a triable issue of material fact for a Section 1983 claim that the prison officials were deliberately indifferent to his safety.
Benyi cannot bring a claim directly under the Eighth Amendment or the Fourteenth Amendment Due Process clause "against a municipality because the plaintiff may proceed against [a municipality] under Section 1983." Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979). Thus, Benyi has no claim against the Defendants directly under the Constitution.
E. The Freedom of Information Law Claim
Benyi claims that the Defendants did not comply with his requests pursuant to the New York Freedom of Information Law ("FOIL"). N.Y. Pub. Off. Law § 89 (McKinney 1988). Federal courts have discretion to exercise supplemental jurisdiction over state law claims that "are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy." 28 U.S.C. § 1367 (1990). The state and federal claims must derive from a common nucleus of operative fact. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966). Benyi's FOIL claim arises from the Broome County Sheriff and the Binghamton Police Departments' alleged failure to turn over exculpatory material which they say does not exist. Benyi's civil rights claim arises from the threats to his personal safety while incarcerated. I find that these claims do not arise from a common nucleus of operative fact and are not part of the same case or controversy. The Constitutional right to personal safety and a request for documents are distinct factually and legal. Therefore, this Court cannot exercise supplementary jurisdiction over Benyi's FOIL claims.
Having found that the statutes of limitations bar Benyi's 42 U.S.C. §§ 1981, 1983, 1985, and 1986 claims as to events in or before the Summer of 1987, I grant Defendants' motion for summary judgement as to these claims. However, I deny Defendants' motion for summary judgement as to Local General Rule 10 and Benyi's Section 1983 claims based on the "Vigilante" letter. Furthermore, I dismiss Benyi's FOIL claim for lack of jurisdiction and deny Benyi's motion for summary judgement in its entirety.
Dated: New York, New York
March 9, 1995
Harold Baer, Jr.
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