The opinion of the court was delivered by: DENISE COTE, District Judge
Defendant Joseph Vuturo ("Vuturo"), a former employee of the New York
State Department of Corrections who acted as a hearing officer during a
1995 disciplinary proceeding against the plaintiff, moves to dismiss the
claims asserted against him as barred by the statute of limitations for
failure to effect service within the required time. For the following
reasons, the motion is granted.
The plaintiff Mark Labounty ("LaBounty") brought this action on April 17, 1995, asserting violations of his constitutional
rights arising out of events that occurred in January 1995, while he was
an inmate in the New York State prison system. Vuturo was not named as a
defendant in the original complaint, but was added as a defendant in a
May 25, 1995 amended complaint. Twenty six defendants in total
were identified by name.
On November 25, 1996, the defendants' motion to dismiss was granted in
part. LaBounty v. Coombe, et al., No. 95 Civ. 2617 (DLC), 1996
WL 684168 (S.D.N.Y. Nov. 25, 1996) ("November 1996 Opinion"). The
procedural due process claim which implicated Vuturo was dismissed.
Id. at *11. The November 1996 Opinion noted that Vuturo had
never been served. Id. at *4 n.9.
Following discovery, the claims that survived summary judgment were
tried. On October 6, 1998, a jury returned a verdict in plaintiff's favor
and awarded him nominal damages. The Second Circuit affirmed both the
summary judgment decision and the judgment entered following trial, but
in a February 5, 2001 summary order, partially reversed the dismissals
contained in the November 1996 Opinion. See LaBounty v.
Kinkhabwala, No. 99-0329, 2001 WL 99819 (2d Cir. Feb. 5, 2001)
("February 2001 Opinion"). The reversal resurrected the procedural due
process claim against Vuturo.
On February 13, 2001, this Court issued an Order (the "February 2001
Order") describing the remanded issues, specifically, procedural due
process issues concerning a 1995 disciplinary hearing over which Vuturo
presided and which resulted in LaBounty serving 30 days of segregated confinement in
the Special Housing Unit ("SHU").*fn1 The parties were ordered to inform
the Court if they had any other understanding of the Court of Appeals'
Order of remand.
By letter dated February 27, 2001, the defendants agreed that the
February 2001 Order correctly described the remanded issues. By letter
dated February 17, 2001, the plaintiff also agreed with the description
of the issues, but indicated a wish to add three additional issues. By
Order dated February 28, 2001, the Court found that the issues remanded
for further development were those described in the February 2001 Order.
On December 20, 2001, the defendants' motion for summary judgment on
the remanded issues was denied. LaBounty v. Coombe, No. 95 Civ.
2617 (DLC), 2001 WL 1658245 (S.D.N.Y. Dec. 26, 2001) ("December 2001
Opinion"). The defendants had argued in the 2001 summary judgment motion,
inter alia, that the only defendant who had personal
involvement in the remaining procedural due process claim was Vuturo, and
that the claim could not proceed against him because he had never been
served.*fn2 Id. at *7. Since the Court requested at the time
that it issued the December 2001 Opinion that the Pro Se Office of this
district find counsel to represent LaBounty, it did not reach the merits
of that particular defense, but assured the parties that they would have
an opportunity to address it further after counsel appeared on behalf of
LaBounty. The Court also referred the parties to settlement discussions,
which proved fruitless. Beginning with a conference held on October 1,
2002, and following both the failure of settlement discussions and of the
efforts to find counsel for the plaintiff, the case resumed as an
actively litigated pro se action.
Following October 1, 2002, a series of orders were issued to assist
LaBounty in obtaining the information necessary to serve Vuturo. Vuturo
had retired and could no longer be served through the channels used to effect service on current employees of the
Department of Corrections. The history of the efforts to get an address
at which to serve Vuturo are described in various orders, including a
June 2003 Order.*fn3 Vuturo was served on September 18, 2003.
On January 4, 2003, LaBounty filed an amended pleading, which was
treated as a supplement to the May 25, 1995 pleading, subject to Vuturo's
right to object to that determination following his receipt of service.
Vuturo answered the pleadings in this action in October 2003, and a
motion pursuant to Rule 12(c) was served on his behalf on November 17,
2003, arguing that the claim against him is time barred because
he was not served in a timely manner. The plaintiff was required to
submit his opposition to the motion by December 22. No opposition having
been submitted, and having received no request for an extension of time
to oppose the motion, it is deemed fully submitted.*fn4
Vuturo asserts that LaBounty was given notice of his failure to effect service, and that LaBounty was not sufficiently diligent
in pursuing service. During the period beginning no later than October 1,
2002, any delay in serving Vuturo was due to the failure of the defendant
to give timely and clear instructions to LaBounty as to how service could
be made. LaBounty was sufficiently diligent at least during the period
following October 1, 2002, until Vuturo was served on September 18, 2003,
with one possible exception.*fn5 The issue that remains, therefore, is
whether LaBounty's failure to serve Vuturo at any time between May 1995
and either the issuance of the December 2001 Opinion or October 1, 2002,
requires the dismissal of this action.*fn6
The statute of limitations for Section 1983 claims for personal
injuries in New York State is three years. Pearl v. City of Long
Beach. 296 F.3d 76, 79 (2d Cir. 2002); Connolly v. McCall,
254 F.3d 36, 40-41 (2d Cir. 2001). The cause of action accrues "when the
plaintiff knows or has reason to know of the injury which is the basis ...