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POUCHER v. INTERCOUNTY APPLIANCE CORP.

October 8, 2004.

GARY POUCHER, Plaintiff,
v.
INTERCOUNTY APPLIANCE CORP. Defendant.



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.

  I. BACKGROUND

  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.

  II. DISCUSSION

  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.

  B. 42 U.S.C. § 1983

  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 law.
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 ...


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