United States District Court, S.D. New York
June 23, 2005.
EUGENE W. SIDNEY, Plaintiff,
TERRANCE L. WILSON, ROBERT BURTON and R. MURPHY, Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
DECISION AND ORDER
Plaintiff Eugene Sidney ("Sidney"), a prisoner at Elmira
Correctional Facility in Elmira, New York, filed this action
pro se against Corrections Officers Terrance Wilson
("Wilson") and Robert Burton ("Burton"), and Sergeant R. Murphy
("Murphy") (collectively "Defendants"),*fn1 alleging that
they violated 42 U.S.C. § 1983 ("Section 1983") by using and/or
permitting the use of excessive force against him.
Wilson and Burton filed the instant motion, pursuant to Federal
Rule of Civil Procedure 12(b) (6) ("Rule 12(b) (6)"), to dismiss
Sidney's claims against Burton and Murphy on the grounds that
those claims are barred by the statute of limitations. Wilson and
Burton also move, pursuant to Federal Rule of Civil Procedure 12(b) (5) ("Rule 12(b) (5)"), for
dismissal of the claims against all three Defendants for failure
to timely serve. For the reasons stated below, the Court grants
the Rule 12(b) (6) motion, denies the Rule 12(b) (5) motion as it
relates to Wilson, and declines to adjudicate that motion as it
relates to Burton and Murphy.
Sidney commenced this action on October 23, 2002.*fn3 In
the Complaint that Sidney filed at that time (the "Original
Complaint"), he named only Wilson as a defendant. On July 11,
2003, Sidney filed an Amended Complaint adding Burton and Murphy
as defendants. Sidney alleges in both Complaints that Defendants
used and/or permitted the use of excessive force against him on
November 30, 1999 at Sing Sing Correctional Facility in Ossining,
New York, where Sidney was incarcerated at the time.
Specifically, Sidney alleges that Wilson and Burton assaulted
him in response to what appears to have been a dispute regarding
whether or not Sidney would be permitted to visit the law library. Sidney makes the following allegations
regarding the alleged assault:
[Wilson] and the Gallery Officer threw me to the
floor. They were trying to handcuff me for reasons I
could not understand. . . . I was kicked and punched.
Officer T. Wilson then kneed me in the head while my
face was on the ground turned sideways. . . . I was
screaming and hollering for the officer to release
the pressure from the knee. Finally I was handcuffed.
Within minutes, I was escorted to the emergency room.
(Complaint dated October 23, 2002 ("Compl.") ¶ IV.)
In the Amended Complaint, Sidney identifies the "Gallery
Officer" referred to above as Burton and states that Murphy was
present during the alleged assault. Sidney states in both
Complaints that he sustained the following injuries as a result
of the alleged assault: "1) Superficial laceration to the brow.
2) Superficial bruise to left eye brow. 3) Pain to left rib cage
no bruising noted." (Compl. ¶ IV-A.) Sidney states that, after
the alleged assault, Burton took him to the emergency room, where
his alleged injuries "were applied with ice." (Id.)
A. STATUTE OF LIMITATIONS
Defendants argue that Sidney's claims against Burton and Murphy
should be dismissed pursuant to Rule 12(b)(6) on the grounds that
they are barred by the statute of limitations.*fn4 In adjudicating a Rule 12(b)(6) motion to dismiss, the Court must
accept as true all well-pleaded factual allegations in the
complaint and draw all reasonable inferences in favor of the
non-moving party. See Securities Investor Protection Corp. v.
BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir. 2000). Dismissal of a
case under Rule 12(b) (6) "is inappropriate unless it appears
beyond doubt that the plaintiff can prove no set of facts which
would entitle him to relief." Raila v. United States,
355 F.3d 118, 119 (2d Cir. 2004) (citation omitted). In addition, because
Sidney is a pro se plaintiff, his "pleadings should be read
liberally and interpreted `to raise the strongest arguments that
they suggest.'" Jafri v. Rosenfeld, No. 04 Civ. 2457, 2005 WL
991784, at *3 (S.D.N.Y. Apr. 26, 2005) (quoting McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
"The statute of limitations for a [Section] 1983 claim is
generally the applicable state-law period for personal-injury
torts." City of Rancho Palos Verdes, Cal. v. Abrams,
125 S. Ct. 1453, 1460 n. 5 (2005) (citing Wilson v. Garcia, 471 U.S. 261,
275, 276; Owens v. Okure, 488 U.S. 235, 240-241 (1989)). In New
York, the statute of limitations for personal injury actions is
three years. See N.Y.C.P.L.R. § 214(5). The limitation period
for actions brought under Section 1983 begins to run when the plaintiff knows or has reason to know of
the alleged injury. See Ormiston v. Nelson, 117 F.3d 69, 71
(2d Cir. 1997). Sidney became aware of the injuries that form the
basis of this action at the time they were allegedly inflicted,
on November 30, 1999. Therefore, Sidney's deadline for filing a
complaint against Burton and Murphy was November 30, 2002.
For pro se incarcerated plaintiffs, a federal complaint is
deemed filed when the plaintiff gives the complaint to prison
officials to be mailed to the court. See Fernandez v. Artuz,
402 F.3d 111, 114 n. 2 (2d Cir. 2005); Dory v. Ryan,
999 F.2d 679, 682 (2d Cir. 1993). Sidney dated his signature on the
Amended Complaint, which named Burton and Murphy as defendants
for the first time, July 11, 2003, approximately seven-and-a-half
months after the limitation period expired.
Based on the record before the Court, there are no grounds on
which the limitation period for Sidney's claims against Burton
and Murphy may be equitably tolled or otherwise extended. Nor, as
Defendants argue, is there any basis on which to find that the
Amended Complaint "relates back" to the Original Complaint
pursuant to Federal Rule of Civil Procedure 15(c) ("Rule 15(c)").
Rule 15(c) allows amended pleadings to "relate back," for statute
of limitations purposes, to the date on which the original
pleadings in a case were filed if:
(1) relation back is permitted by the law that
provides the statute of limitations applicable to the action,
(2) the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth in
the original pleading, or
(3) the amendment changes the party or the naming of
the party against whom a claim is asserted if the
foregoing provision (2) is satisfied and, within the
period provided by Rule 4(m) for service of the
summons and complaint, the party to be brought in by
amendment (A) has received such notice of the
institution of the action that the party will not be
prejudiced in maintaining a defense on the merits,
and (B) knew or should have known that, but for a
mistake concerning the identity of the proper party,
the action would have been brought against the party.
Thus, subsections (1) and (3) of Rule 15(c) govern the relation
back of newly added parties, as opposed to newly added claims and
defenses, which are governed by subsection (2). The Amended
Complaint adding Burton and Murphy does not relate back to the
Original Complaint under either of the relevant subsections.
Under Rule 15(c) (3), in order for a complaint adding new
parties to relate back to an original complaint, the omission of
the added parties from the original must be the result of "a
mistake concerning the identity of the proper party," Fed.R.Civ.
P. 15(c)(3)(B), to name as a defendant. As Defendants point out,
the Second Circuit has held that, "even when a suit is brought by
a pro se litigant, `an amended complaint adding new
defendants [cannot] relate back if the newly-added defendants
were not named originally because the plaintiff did not know their identities.'" Tapia-Ortiz v. Doe, 171 F.3d 150,
152 (2d Cir. 1999) (quoting Barrow v. Wethersfield Police
Dept., 66 F.3d 466, 470 (2d Cir. 1995)). Such amendments do not
satisfy Rule 15(c)'s requirement that the omission of the
newly-added party be the result of "a mistake concerning the
identity of the proper party," Fed.R.Civ.P. 15(c)(3)(B),
because they "seek? to correct a lack of knowledge, rather than
a mistake of fact or law." Vineyard v. County of Nassau,
329 F. Supp. 2d 364, 369 (E.D.N.Y. 2004). As explained in the Advisory
Committee Notes to the 1991 Amendment to Rule 15(c)(3), that
provision was revised to address "the problem of the misnamed
defendant." Fed.R.Civ.P. 15(c)(3) advisory committee's note
(1991 Amendment). The Advisory Committee Notes also refer to the
sort of mistake intended to be remedied by Rule 15(c)(3) as a
"misnomer or misidentification," and describe amendments made to
complaints pursuant to that Rule as "name-correcting" amendments.
Id. Thus, Second Circuit doctrine as well as the Advisory
Committee Notes counsel against interpreting ignorance of a
party's name as a "mistake" under Rule 15(c).*fn5 Sidney's omission of Burton and Murphy from his original
Complaint appears to have resulted from a lack of knowledge of
their names, rather than the sort of mistake contemplated by Rule
15(c).*fn6 Sidney referred to Burton and Murphy in his
description of the alleged Section 1983 violation in the Original
Complaint by their titles, "Gallery Officer" and "Area
Supervisor." (Compl. ¶ IV.) Sidney's use of their titles in the
Original Complaint suggests that he did not know their names at
the time he filed that Complaint. In any case, Sidney does not
claim, and there is no basis in the record even read in the
light most favorable to Sidney on which the Court may find,
that the omission of those defendants from the Original Complaint
was the result of a mistake on Sidney's part. Therefore, the
Court concludes that the Amended Complaint does not satisfy the requirement of Rule 15(c)(3) that
the omission of the newly-added defendants be the result of a
mistake by the plaintiff, and hence that it does not relate back
to the Original Complaint pursuant to that subsection.
Nor does Sidney's Amended Complaint satisfy the criteria for
relation back under Rule 15(c)(1). As stated above, that
provision permits relation back if "the law that provides the
applicable statute of limitations," Fed.R.Civ.P. 15(c)(1),
permits relation back. The relation back provision of the law
that contains the applicable statute of limitations in this case,
the New York Civil Practice Law and Rules (the "C.P.L.R."),
states that, "[i]n an action which is commenced by service, a
claim asserted in the complaint is interposed against the
defendant or a co-defendant united in interest with such
defendant when: 1. the summons is served upon the defendant."
N.Y.C.P.L.R. § 203(b)(1) (2005).
New York courts have interpreted this provision to require,
like Rule 15(c)(3), that the plaintiff's failure to identify the
newly-added party in the original complaint be the result of a
mistake. See Lieber v. Village of Spring Valley,
40 F. Supp. 2d 525, 532 (S.D.N.Y. 1999) (citing Buran v. Coupal,
661 N.E.2d 978, 982 (N.Y. 1995); Mondello v. New York Blood Center-Greater
New York Blood Program, 604 N.E.2d 81, 85 (N.Y. 1992)). The New
York Court of Appeals has stated that the C.P.L.R.'s relation back rule is "patterned largely
after the Federal relation back rule." Buran, 661 N.E.2d at 982
(N.Y. 1995). "Further, district courts in this [C]ircuit have
found that New York's relation back law employs a similar
standard as the federal rule." Sepulveda v. City of New York,
No. 01 CV 3117, 2003 WL 22052870, at *3 n. 4 (S.D.N.Y. Sept. 2,
2003) (citing Bass v. World Wrestling Fed'n Entm't,
129 F. Supp. 2d 491, 508 n. 13 (E.D.N.Y. 2001); Corcoran v. New York
Power Auth., 935 F. Supp. 376, 393 (S.D.N.Y. 1996);
Morse/Diesel v. Fidelity and Deposit Co., No. 86 CV 1494, 1995
WL 358627, at *10 n. 5 (S.D.N.Y. June 15, 1995)). Therefore, the
facts in Sidney's case do not satisfy the requirements of the
C.P.L.R.'s relation back rule for the same reason that they do
not satisfy the requirements of the federal rule, i.e. because
there is no basis on which to find that the omission of Burton
and Murphy from the Original Complaint resulted from a mistake.
Accordingly, the Court concludes that Sidney's claims against
Burton and Murphy must be dismissed on the grounds that they are
barred by the statute of limitations.
B. FAILURE TO PROPERLY SERVE
Burton and Murphy further argue that Sidney's claims against
all three Defendants should be dismissed, pursuant to Rule
12(b)(5), on the grounds that none of the Defendants was timely
served. Federal Rule of Civil Procedure 4(m) ("Rule 4(m)") sets a
120-day deadline for plaintiffs to serve defendants with process after filing a complaint.*fn7
Courts, however, have discretion to extend this deadline. See
Fed.R.Civ.P. 4(m). In addition, "if the plaintiff shows good
cause for the failure, the court shall extend the time for
service for an appropriate period." Id. (emphasis added).
Because the Court has already determined that the claims
against Burton and Murphy are time barred, the Court will
consider Defendants' Rule 12(b)(5) motion only as it relates to
Wilson.*fn8 As stated above, for pro se incarcerated
plaintiffs, a federal complaint is deemed filed when the
plaintiff gives the complaint to prison officials to be mailed to
the court. See Fernandez, 402 F.3d at 114 n. 2 (2d Cir.
2005); Dory, 999 F.2d at 682 (2d Cir. 1993). Sidney dated his
signature on the Original Complaint October 23, 2002. Assuming
that Sidney gave the Complaint to prison officials the same
day,*fn9 his deadline for serving Wilson, the only defendant named in that Complaint, was February 20, 2003. The
record does not reflect any attempt by Sidney to serve Wilson
until April 7, 2003, the date on which Sidney signed a United
States Marshals Service Process Receipt and Return form (the
"Service Form") requesting that Wilson be served. The record
further reflects that the Marshals Service, though it received
the Service Form on April 10, 2003, did not attempt to serve
Wilson until July 23, 2003 and that, at that time, Wilson could
not be located. Nevertheless, the Court finds that there was good
cause for Sidney's failure to serve Wilson within 120 days of
filing the Complaint against him and, therefore, that Sidney's
claim against Wilson should not be dismissed.
"There are no set guidelines for what constitutes `good cause'
under Rule 4(m)." La Bounty v. Lee, No. 89-CV-027, 1994 WL
378479, at *2 (N.D.N.Y. July 15, 1994) (citing Gordon v. Hunt,
116 F.R.D. 313 (S.D.N.Y. 1987), aff'd, 835 F.2d 452 (2d Cir.
1987)). Rule 4(m)'s 120-day deadline for serving defendants "is
not strictly enforced in pro se prisoner cases." Shomo v.
City of New York, No. 03 Civ. 10213, 2005 WL 756834, at *3
(S.D.N.Y. Apr. 4, 2005) (citing Carney v. Davis, No. 90 Civ.
2591, 1991 WL 150537, at *3 (S.D.N.Y. July 26, 1991) (declining
to dismiss pro se prisoner's action despite three and
one-half years delay in service)). Sidney has not addressed the reason for the delay in serving
Wilson. Although Sidney bears the burden of proving the adequacy
of service once it has been challenged, Preston v. New York,
223 F. Supp. 2d. 452, 466 (S.D.N.Y. 2002), the Court may take
judicial notice of facts contained in the record in adjudicating
a motion to dismiss. See Patrowicz v. Transamerica HomeFirst,
Inc., 359 F. Supp. 2d 140, 144 (D.Conn. 2005) ("[I]n ruling on a
motion to dismiss, a court . . . may consider . . . `matters of
which judicial notice may be taken.'" (quoting Brass v. Am. Film
Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993)); Hong Mai Sa v.
Doe, 406 F.3d 155, 158 (2d Cir. 2005) (noting that the court may
take judicial notice of court files).
The record before the Court shows that much of the delay in
serving Wilson can be attributed to the amount of time it took
the Court's Pro Se Office to process Sidney's Complaint.
Although Sidney signed the Complaint on October 23, 2002, and the
Complaint bears a stamp indicating that is was received by the
Pro Se Office on October 28, 2002, it was not filed with the
Clerk's Office until February 5, 2003, at which time the summons
was issued. This delay in transmitting Sidney's Complaint to the
Clerk's Office appears to have been the result of a delay in
approving Sidney's application to proceed in forma
pauperis. That application, though filed with the Complaint in
October 2002, was not granted until January 31, 2003. Federal Rule of Civil Procedure 4(c)(1) requires that a
summons be served together with a copy of the complaint.
Therefore, Sidney could not have properly served Wilson until
after February 5, 2003, when the summons was issued.
The Advisory Committee Notes for Rule 4(m) advise courts to
"take care to protect pro se plaintiffs from consequences of
confusion or delay attending the resolution of an in forma
pauperis petition." Fed.R.Civ.P. 4, advisory committee notes
(1993 Amendments, Subdivision (m)). In addition, other district
courts in this Circuit have held that "the time to effect service
should be tolled while an in forma pauperis motion is
pending at least where . . . the motion is granted."
Kavazanjian v. Rice, No. 03-CV-1923, 2005 WL 1377946, *2
(E.D.N.Y. June 6, 2005) (citing Toliver v. Sullivan County,
841 F.2d 41, 42 (2d Cir. 1988)). Therefore, the Court finds that the
period during which Sidney's in forma pauperis application
was pending should not be counted against the 120-day service
period. If that period of time (100 days) is subtracted from the
total amount of time between the filing of the complaint (on
October 23, 2002) and the Marshals Service's receipt of the
Service Form (April 10, 2003), Sidney may be deemed to have
sought the assistance of the Marshals Service in serving Wilson
sixty-nine days after filing the Complaint.*fn10
Although the Marshals Service did not succeed in serving Wilson
with the Original Complaint, that failure does not bar Sidney
from maintaining the instant action. "For plaintiffs proceeding
in forma pauperis . . ., the Marshal's Office not the
plaintiff is primarily responsible for effecting service."
Kavazanjian, 2005 WL 1377946, *2 (citing 28 U.S.C. § 1915(d)
("The officers of the court shall issue and serve all process,
and perform all duties in [in forma pauperis] . . .
cases.")). "So long as . . . a prisoner provides the information
necessary to identify the defendant, courts have uniformly held
that the Marshals' failure to effect service automatically
constitutes good cause within the meaning of Rule 4(m)." Ruddock
v. Reno, No. 00-0179, 2004 WL 1496898, at *2 (2d Cir. July 1,
2004) (unpublished summary order) (citing Moore v. Jackson,
123 F.3d 1082, 1085-86 (8th Cir. 1997); Byrd v. Stone, 94 F.3d 217,
220 (6th Cir. 1996); Dumaguin v. Sec'y of HHS, 28 F.3d 1218, 1221 (D.C. Cir. 1994); Puett v.
Blandford, 912 F.2d 270, 276 (9th Cir. 1990); Sellers v. United
States, 902 F.2d 598, 602 (7th Cir. 1990)). Sidney properly
specified Wilson's address at Sing Sing in the Service Form. The
Marshals Service noted on the Service Form that it was "unable to
locate T. Wilson" at that address, apparently indicating that
Wilson was no longer employed by Sing Sing.*fn11
The fact that the Marshals Service was unable to locate Wilson
at the address provided by Sidney, though, does not prevent the
Court from finding that there was good cause for Sidney's failure
to timely serve Wilson. Rather, courts in this Circuit have found
that, in order to discharge their service obligations, pro se
incarcerated plaintiffs need not provide the Marshals Service
with a current address for the parties to be served. See
Ruddock, 2004 WL 1496898, at *2 ("The record shows that,
despite the fact that [the plaintiff] adequately identified [the
defendants] in a completed summons, the Marshals Service returned
the summons unexecuted because [the defendants] were employed at
a different correctional facility than FCI Ray Brook. The
responsibility for the failed service therefore lies with the
Marshals Service, not with [the plaintiff]."); Muhammad v.
Coughlin, No. 89 Civ. 5088, 1994 WL 68168, at *3 (S.D.N.Y. March 1, 1994) (finding good
cause for delay in serving defendants where "the delays by the
Marshals in completing service, whether for difficulties in
determining the appropriate addresses for particular defendants
no longer at Sing Sing, or simply because of the high volume of
requests, [did] not evidence dilatory behavior on the part of
this pro se prisoner, proceeding in forma pauperis.")
(citing Romandette, 807 F.2d at 311)).
In addition, though the Marshals Service never served Wilson
with the Original Complaint in this action, it did serve him with
the Amended Complaint. Sidney provided the Marshals Service with
a second Service Form for Wilson, which the Marshals Service
received on February 2, 2004.*fn12 Notes on that Service
Form indicate that an employee at Sing Sing, Katie Fish, accepted
service on behalf of Wilson on March 8, 2004, and state that
Wilson had been suspended without pay and that the Summons and
Complaint would be mailed to the address that Sing Sing had on
file for Wilson. Moreover, Wilson has retained private counsel to
represent him in this matter, and therefore has clearly received
actual notice of it. The Second Circuit has advised that "Rule 4
of the Federal Rules is to be construed liberally `to further the
purpose of finding personal jurisdiction in cases in which the party has
received actual notice.'" Romandette, 807 F.2d at 311.
For these reasons, the Court concludes that there is good cause
for Sidney's failure to serve Wilson before the 120-day service
deadline and therefore denies Defendants' Rule 12(b)(5) motion to
dismiss as it relates to Wilson.
For the reasons set forth above, it is hereby
ORDERED that the motion of Corrections Officers Terrance
Wilson ("Wilson") and Robert Burton ("Burton") to dismiss the
instant complaint as it relates to Burton and Sergeant R. Murphy
("Murphy") based on the running of the statute of limitations is
GRANTED; and it is further
ORDERED that the motion of Wilson and Burton to dismiss the
instant complaint based on failure to properly serve is DENIED
with regard to Wilson.
The parties are directed to confer and submit to the Court by
July 29, 2005 a proposed Case Management Plan setting forth an
agreed upon schedule to govern discovery and other pretrial
proceedings. The Court will refer the case to the designated Magistrate Judge to supervise compliance with the Case