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QUINONES v. HOWARD

December 11, 1996

EVAN QUINONES, Plaintiff,
v.
DALE HOWARD, OFFICERS COTTON, MARINACCIO, NAAB, FIELDS, SERGEANTS JEFFERSON, PIKULA, Defendants.



The opinion of the court was delivered by: LARIMER

 BACKGROUND

 Plaintiff, Evan Quinones ("Quinones"), filed a complaint pursuant to 42 U.S.C. § 1983 on February 1, 1995, alleging that various Department of Corrections (DOCS) employees violated his constitutional rights. Quinones, a prisoner at the time of the alleged violations, had tested positive for the AIDS virus and was taking AZT. Quinones' complaint alleges various constitutional violations concerning the distribution of his AZT medication, communications to others regarding his HIV-positive status, and claims of retaliation.

 Defendants, with the exception of Michael A. Marinaccio ("Marinaccio"), move to dismiss the complaint, arguing that the statute of limitations for filing the action had expired prior to the complaint being filed. Marinaccio moves to dismiss the complaint for failure to state a claim or, alternatively, on qualified immunity grounds.

 For the reasons discussed, infra, defendant Marinaccio's motion to dismiss is granted. The motion to dismiss brought on behalf of all other defendants on the basis of the statute of limitations is denied.

 DISCUSSION

 I. Motion to Dismiss: The Legal Standard.

 On a motion to dismiss, the trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); see Ricciuti v. N.Y.C. Transit Authority, 941 F.2d 119, 124 (2d Cir. 1991). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). The Court should grant a motion to dismiss "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King and Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 The motion must be decided based on the allegations contained on the face of the complaint. Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). Moreover, on a motion to dismiss, the court must accept plaintiffs' factual allegations as true, Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986), and the allegations must be "construed favorably to the plaintiff." LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). Finally, "a rule 12(b)(6) motion to dismiss need not be granted or denied in toto but may be granted as to part of a complaint and denied as to the remainder." Decker v. Massey-Ferguson, Ltd, 681 F.2d 111, 115 (2d Cir. 1982).

 II. Statute of limitations

 Defendants, with the exception of Marinaccio, claim that the conduct alleged by Quinones that constitutes the basis of his lawsuit all occurred between December 19, 1991 and January 15, 1992. According to defendants, because the complaint was not filed until February 1, 1995, the action is time-barred.

 Quinones, on the other hand, claims that he gave an envelope containing his complaint to a corrections officer in either November or December, 1994 for mailing to the court, but the envelope was misplaced by DOCS employees and was not mailed until late January, 1995. Quinones claims that he has documentation to support his assertions but has not submitted this material to the court because he has been housed temporarily at a different facility with no access to any of his papers regarding the current lawsuit.

 I recognize, of course, that on a motion to dismiss, matters outside the complaint should not be considered. Thus, technically, consideration of Quinones affidavit would convert the present motion to one for summary judgment. However, I do not have to rely on Quinones' affidavit in order to deny defendants' motion. The complaint itself is dated November 11, 1994 and the affirmation of service was notarized and dated December 2, 1994. This, in and of itself, raises enough of a question as to when the complaint was "filed" so as to defeat the motion to dismiss.

 The defense in this case turns on what constitutes a "filing" of a complaint. Fed.R.Civ.P. 5(e) provides that "the filing of papers with the court as required by these rules shall be made ...


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