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April 15, 1995

PABLO RAYO a/k/a PABLO RAJO, Plaintiff, against STATE OF NEW YORK, Defendant.

Thomas J. McAvoy, Chief U.S. District Judge

The opinion of the court was delivered by: THOMAS J. MCAVOY


 In this civil rights action brought pursuant to 42 U.S.C. §§ 1981 and 1983, the plaintiff, formerly an inmate at the Camp Pharsalia Correctional Facility, alleges that various of his statutory and constitutional rights were violated by correction employees following an altercation between plaintiff and another inmate. The complaint alleges that the fight in question occurred on or about July 26, 1989, and that correction employees thereafter failed to provide plaintiff with any medical treatment.

 Plaintiff initially brought his claim against the State in the Court of Claims for the State of New York. The claim asserted the same factual allegations and purported to raise the same causes of action as is alleged here. The Court of Claims dismissed the claim, except to the extent that the claim sought recovery for negligence. Now, plaintiff brings his action in this court.

 Plaintiff's case was again dismissed in this court. The plaintiff had named the State as the sole defendant in the federal action not realizing that the State is immune from § 1983 liability based on the theory of sovereign immunity. The plaintiff was, however, given leave to amend his complaint. The amended complaint was to be filed within twenty days of the filing of the court's dismissal order. Plaintiff did so, and named Donald Bower as the sole defendant.


 As counsels are well aware, on a motion to dismiss, the facts alleged by the plaintiff are assumed to be true and must be liberally construed in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Easton v. Sundram, 947 F.2d 1011, 1014 (2d Cir. 1991), cert. denied, 504 U.S. 911, 112 S. Ct. 1943, 118 L. Ed. 2d 548 (1992). While the court need not accept mere conclusions of law, the court should accept the pleader's description of what happened along with any conclusions that can reasonably be drawn therefrom. Murray v. City of Milford, 380 F.2d 468 (2d Cir. 1967). Thus, the court's inquiry on this Rule 12(b)(6) motion is merely directed to whether plaintiff's allegations constitute a statement of claim under Rule 8(a), which calls for "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a).

 In sum, a complaint should not be dismissed for failure to state a claim unless it appears, beyond doubt, that the plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Dahlberg v. Becker, 748 F.2d 85, 88 (2d Cir. 1984), cert. denied, 470 U.S. 1084, 105 S. Ct. 1845, 85 L. Ed. 2d 144 (1985); Wanamaker v. Columbian Rope Co., 740 F. Supp. 127 (N.D.N.Y. 1990). It is in light of these considerations that the plaintiff's complaint is examined.

 Defendant seeks dismissal on two theories: (1) the statute of limitations for plaintiff's federal claims have expired; and (2) plaintiff's service of process was insufficient.

 1. Statute of Limitations

 The undisputed facts indicate that plaintiff's § 1983 claims accrued on or about July 26, 1989. Taking into account the three year statute of limitations for § 1983 actions, Owens v. Okure, 488 U.S. 235, 109 S. Ct. 573, 582, 102 L. Ed. 2d 594 (1989), the statute of limitations for plaintiff's claims expired on or about July 26, 1992.

 Reviewing the record, plaintiff did indeed file his claim within the prescribed time period. But, he did so in the New York State Court of Claims, naming as the sole defendant the State of New York. Subsequent to the Court of Claims' dismissal of plaintiff's claims and the expiration of the statute of limitations, plaintiff filed his action in this court. In so doing, plaintiff relies on the six month extension provision provided in N.Y. Civ. Prac. L. & R. § 205(a) (McKinney's 1990) (Supp. 1995) to overcome the statute of limitations problem.

 Even if this Court were to assume that the six-month extension applied to the instant case, the said provision would not save this case from dismissal. In examining the language of Section 205(a), it is plain that the six month extension applies only if the original court had personal jurisdiction over the same defendant as in the second case. See N.Y. Civ. Prac. L. & R. § 205(a) ("If an action is timely commenced and is terminated in any other manner than by . . . a failure to obtain personal jurisdiction over the defendant . . . the plaintiff . . . may commence a new action . . . within six month after the termination . . . ."); see also Markoff v. South Nassau Community Hospital, 61 N.Y.2d 283, 473 N.Y.S.2d 766, 768, 461 N.E.2d 1253 (1984); Parker v. Mack, 61 N.Y.2d 114, 472 N.Y.S.2d 882, 882, 460 N.E.2d 1316 (1984). Thus, it is imperative that ...

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