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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


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:

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