United States District Court, S.D. New York
April 13, 2004.
MARK LABOUNTY, Plaintiff; -v- PHILIP COOMBE, Jr., et al., Defendants
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION AND ORDER
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 of
his action." Pearl. 296 F.3d at 80 (citation omitted). See
also Connolly, 254 F.3d at 41.
In a suit brought to enforce rights under federal law, the filing of a complaint commences a federal civil action and tolls
the statute of limitations. See Rule 3, Fed.R. Civ. P.;
Henderson v. U.S.. 517 U.S. 654, 657 n.2 (1996);
West v. Conrail, 481 U.S. 35, 39 and n.5 (1987). Although
filing an action in compliance with Rule 3, Fed.R. Civ. P., stops the
statute of limitations from running, such a filing does not toll the
statute of limitations beyond the period for service provided by
Rule 4(m), Fed.R.Civ.P. ("Rule 4(m)").*fn7 See West. 481 U.S. at
40 n.7 (construing Rule 4(j), the predecessor to Rule 4(m)). The Supreme Court has identified the "core function of service" to be
the supply of notice of the pendency of an action within a time that
"affords the defendant a fair opportunity to answer the complaint and
present defenses and objections." Henderson, 517 U.S. at 672.
Rule 4(m) permits a district court to enlarge time for service "even if
there is no good cause shown." Id. at 662 (citing Advisory
Committee Notes on Rule 4, Fed.R. Civ. P.). If a dismissal for failure
to serve within the time allowed by Rule 4(m) will prevent the plaintiff
from pursuing the action because the statute of limitations has run since
the plaintiff filed suit, that factor may counsel against dismissal and
support an extension of the time to serve. The Advisory Committee Notes
accompanying the 1993 amendment to Rule 4 state that "[r]elief may be
justified, for example, if the applicable statute of limitations would
bar the refiled action." Rule 4, Fed.R. Civ. P., Advisory Committee
Notes, Subdivision (m). Nonetheless, the presence of a statute of
limitation bar does not require an extension of the time to serve.*fn8
See Frasca, 921 F.2d at 453 (construing Rule 4(j)). Rule 4(m) "applies equally
to defendants who were never served and defendants who were served after
the 120 day period had lapsed." Geiger v. Alien,
850 F.2d 330, 332 (7th Cir. 1988) (construing Rule 4(j)).*fn9
The Section 1983 claim against Vuturo accrued in January 1995, and the
statute of limitations for the claim expired in January 1998. LaBounty
had 120 days following May 1995 to serve Vuturo, or until September 1995.
LaBounty has pointed to no evidence and there is no evidence before the
Court that LaBounty made any effort to serve Vuturo during that time period, or that he
asked for an extension of time or assistance to do so.
LaBounty's pleadings named 26 defendants and he succeeded in serving
the majority of those defendants in a timely fashion.*fn10 LaBounty's
claims included allegations about loss of diagnostic films, denial of
hypertension medication, false misbehavior reports, retaliatory
mistreatment, the disciplinary hearing over which defendant Vuturo
presided, the destruction of his personal effects, inadequate medical
care, and refusals to treat him. LaBounty, 1996 WL 684168, at
*2-5. Given the complexity of the charges and the number of defendants,
it is entirely possible that LaBounty overlooked the need to serve
Vuturo. Then, when the November 1996 Opinion dismissed LaBounty's due
process claim, he no longer had any incentive to serve Vuturo.
Since there is no evidence that LaBounty made any timely and legally
sufficient effort to serve Vuturo at any time during the approximately
eighteen months before November 1996, it is unnecessary to examine the
course of this litigation following that time to determine whether the
Rule 4(m) period for service should be extended beyond November 1996.
Unlike cases in which a failure to effect timely service has been excused
either because there were impediments to service or a showing of good
faith effort to make proper service, there is no evidence in the record
here of any impediment or good faith effort. See, e.g. Thompson v. Maldonado, 309 F.3d 107, 109 (2d Cir. 2002)
(allegations that correctional workers thwarted plaintiff's ability to
serve process); Romandette v. Weetabix Co., 807 F.2d 309, 311
(2d Cir. 1986) (pro se plaintiff did "everything in his power"
to effect service); Morse v. Elmira Country Club, 752 F.2d 35,
40 (2d Cir. 1984) (defendant actually received summons and complaint).
In addition, Vutoro has shown that he would be prejudiced by a
continuation of this action. When Vuturo was finally served in September
2003, the events that are the subject of this litigation were over nine
years old. Vuturo is now retired from the Department of Corrections.
There is a serious risk that a just determination of the facts cannot be
made because of the passage of time. Wilson v. Garcia, 471 U.S. 261,
271 (1985). For instance, one of LaBounty's claims regarding Vuturo
is that he had prejudged the merits of the hearing. It will be difficult,
if not impossible, for participants in the January 1995 hearing to recall
those events with sufficient clarity to shed light on this claim.
There is, of course, a strong preference for resolving disputes on
their merits. See Marfia v. T.C. Ziraat Bankasi, New York
Branch, 100 F.3d 243, 249 (2d Cir. 1996). In addition, it is
important to give pro se plaintiffs, and in particular
incarcerated pro se plaintiffs, ample opportunity to effect
service and assistance in accomplishing that task where assistance is
necessary. See Valentin v. Dinkins, 121 F.3d 72, 75-76 (2d Cir.
1997). As the Supreme Court stated, although "[o]ur rules of procedure are based on the assumption that
litigation is normally conducted by lawyers . . ., we have never
suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse mistakes by those who proceed without
counsel." McNeil v. U.S.. 508 U.S. 106, 113 (1993).
A delay of eighteen months in effecting service, or in requesting the
Court's assistance to effect service, is unreasonable in the absence of
any explanation for this failure, and in light of the circumstances
presented here. As a consequence, the claims against Vuturo are dismissed
with prejudice because any refiling of this claim would violate the three
year statute of limitations for Section 1983 actions. While
LaBounty's amended complaint naming Vuturo was timely filed in May 1995,
as already noted, LaBounty's time to bring his claim against Vuturo
expired in January 1998. As reflected in the December 20 Opinion, the
only defendant with personal involvement in the remanded procedural due
process claim is Vuturo. With his dismissal from this action, there is no
remaining claim to be resolved.
The motion by defendant Vuturo to dismiss the claims against him as
time barred for failure to serve him in a timely manner is granted. Since
Vuturo is the only defendant with personal involvement in the outstanding
claim, this decision resolves the outstanding issues in the case. The Clerk of Court shall enter
judgment for Vuturo and close the case. SO ORDERED: