The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Gary Poucher ("plaintiff" or "Poucher") commenced this action
based on violations of 42 U.S.C. § 1983, accompanied by an
application to proceed in forma pauperis. For the reasons
stated below, the application is granted and the complaint is
dismissed with prejudice.
The plaintiff, who is incarcerated at a prison in California,
filed his complaint, using a Clerk's Office prisoner civil rights
42 U.S.C. § 1983 form. He alleges that on June 22, 1998, while
employed at Roel Transport, Inc., he delivered 80 standard size
refrigerators from a manufacturer in Virginia to the premises of
defendant Inter County Appliance Corporation in Commack, New
York. Plaintiff states that there was nobody available to unload
the merchandise, and that an office clerk informed him "that he
would have to unload the truck himself. If not he [the office
clerk] would refuse the truck, and force him [the plaintiff] to
wait until next week. . . ."
Plaintiff further alleges that after unloading 80 refrigerators
by himself, he suffered severe and permanent injuries as a result
of the defendant's negligence. Plaintiff attached Exhibit "B" to
the complaint, which consists of a verified complaint against the
same defendant, that he filed in the Supreme Court, County of
Nassau. In this complaint, the plaintiff alleges, inter alia,
that the defendant failed to provide adequate and proper
equipment for work that the plaintiff performed.
The plaintiff seeks $2,000,000 in monetary damages.
A. In Forma Pauperis Application
Upon review of the plaintiff's declaration in support of his
application to proceed in forma pauperis, the Court
concludes that the plaintiff's financial status qualifies him to
commence this action without prepayment of the filing fees. See
28 U.S.C. § 1915(a)(1). Therefore, the plaintiff's request to
proceed in forma pauperis is granted.
It is well-settled that the Court is required to read the
plaintiff's pro se complaint liberally. See Hughes v.
Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980);
Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652,
92 S. Ct. 594 (1972). The Court is further required to liberally
construe a pro se plaintiff's papers "`to raise the strongest
arguments that they suggest.'" Soto v. Walker, 44 F.3d 169, 173
(2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d
Cir. 1990)). Further, at this stage of the proceedings, the Court
assumes the truth of the allegations in the complaint. See
H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50,
106 L. Ed. 2d 195, 109 S. Ct. 2893 (1989); Koppel v. 4987
Corp., 167 F.3d 125, 127 (2d Cir. 1999).
Section 1983 provides, in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects,
or causes to be subjected, any citizen of the United
States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at
42 U.S.C. § 1983.
Thus, to state a claim under Section 1983, a plaintiff must
allege facts showing that the defendant acted under color of a
state "statute, ordinance, regulation, custom or usage."
42 U.S.C. § 1983. In general, private parties are not liable. See
Rendell-Baker v. Kohn, 457 U.S. 830, 838-42, 73 L. Ed. 2d 418,
102 S. Ct. 2764 (1982). Here, the complaint fails to allege that
the defendant acted as a state actor and that it acted under
color of state "statute, ordinance, regulation, custom or usage."
Furthermore, it is well settled that claims under Section 1983
must be commenced within three years of the alleged violation.
See Harris v. City of New York, 186 F.3d 243, 247-48 (2d Cir.
1999) (stating that three years is the statute of limitations for
a New York based Section 1983 cause of action); Okure v. Owens,
816 F.2d 45, 49 (2d Cir. 1987) (stating the same). In this case,
it appears that the plaintiff's claims arose out of events that
occurred in 1998. The complaint was filed on September 14, 2004.
Thus, the complaint is untimely as a matter of law. See Pino
v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995) (stating that a sua
sponte dismissal is "appropriate if it appears from the ...