United States District Court, S.D. New York
August 2, 2005.
JOSE MIGUEL VASQUEZ, Plaintiff,
P. MILL, C. HEALY, G. BALDERACHHI, P. GOODE and M. MAURO, Defendants.
The opinion of the court was delivered by: RICHARD HOLWELL, District Judge
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Jose Miguel Vasquez brought this action
against five United States Custom Agents in their individual
capacities (collectively "defendants"), alleging that defendants
unlawfully assaulted him during an arrest and denied him proper
medical attention following his detention in violation of
42 U.S.C. § 1983. Vasquez is proceeding in forma pauparis and is
currently incarcerated at the Federal Correctional Institution in
Lorretto, Pennsylvania. Defendants have now moved to dismiss the
complaint in its entirety pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure based on plaintiff's failure to
effect proper service of the summons and complaint. A hearing on
defendants' motion to dismiss was held on July 28, 2005.
Plaintiff attended by telephone with the assistance of a
Spanish-speaking employee of the Pro Se Office. For the reasons
set forth below, the Court denies defendants' motion without
prejudice and grants Vasquez an extension of 90 days to serve the
summons and complaint on defendants. BACKGROUND
The substance of Vasquez's complaint arises from his arrest on
February 19, 2002. Vasquez claims he was handcuffed and beaten by
one of the defendants during the arrest and the other defendants
participated in this arrest. As a result of this alleged beating,
Vasquez claims his shoulder was injured.
Following the arrest, Vasquez was detained at the Metropolitan
Detention Center ("MDC"). On May 29, 2003, Vasquez filed the
present complaint, in which he alleges that defendants unlawfully
assaulted him during the February 19, 2002 arrest and denied him
proper medical treatment following his detention at the MDC. By
unpublished Order dated May 29, 2003, Judge Mukasey: (1)
dismissed Vasquez's § 1983 claim for inadequate medical attention
for improper venue; and (2) granted Vasquez's request to proceed
in forma pauparis with respect to his § 1983 claim seeking
monetary relief for his injuries suffered during the February 19,
2002 arrest. Vasquez v. Mill et al., No. 3 Civ. 3905 (S.D.N.Y.
On November 21, 2003, the Court directed Vasquez to explain why
in writing he has failed to serve the summons and complaint
within the 120 days prescribed by Rule 4(m) of the Federal Rules
of Civil Procedure, or alternatively, to set forth the dates and
manner in which defendants were served. In a letter dated
November 25, 2003, Vasquez conceded he had not properly served
defendants. He further requested a continuance after explaining
that the paralegal providing him assistance had been
incarcerated. On December 2, 2003, the Court directed plaintiff
to serve defendants by January 26, 2004.
By letter dated April 29, 2004, Vasquez again requested an
extension to serve his summons and complaint on defendants. On
May 4, 2004, the Court granted the request and extended the time to serve by 30 days. On May 17, 2004,
Vasquez attempted to serve each defendant by certified mail
addressed to the United States Courthouse in the Southern
District of New York.
When the defendant seeks to dismiss a complaint based on Rule
12(b)(5) for insufficiency of service, "the plaintiff bears the
burden of proving its adequacy." Mende v. Milestone Technology,
Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003) (internal
citations and quotations omitted). Since plaintiff has sued U.S.
Customs Agents in their individual capacities, he must satisfy
the requirements set forth in Rule 4(i)(2)(B), which provides:
Service on an officer or employee of the United
States sued in an individual capacity for acts or
omissions occurring in connection with the
performance of duties on behalf of the United States
whether or not the officer or employee is sued also
in an official capacity is effected by serving the
United States in the manner prescribed by Rule
4(i)(1) and by serving the officer or employee in the
manner prescribed by Rule 4(e), (f), or (g).
Fed.R.Civ.P. 4(i)(2)(B). According to Rule 4(i)(1), plaintiff
must effect service on the United States by (1) sending the
summons and complaint by personal delivery or certified mail to
the United States Attorney in the Southern District of New York;
or (2) sending the summons and complaint by registered or
certified mail to the Attorney General of the United States. To
effect service on the employees themselves assuming that they
are located within the United States plaintiff may (1) follow
the requirements under New York law for service;*fn1
deliver the summons and the complaint to the individuals personally or leave copies at the individual's house with a
person of suitable age; or (3) leave a copy to an agent
authorized by law to receive service of process. N.Y.C.P.L.R. §
308; Fed.R.Civ.P. 4(e).
Rule 4(m) of the Federal Rules of Civil Procedure further
requires a plaintiff to effect proper service on defendants
within 120 days of filing the complaint. Fed.R.Civ.P. 4(m). In
this instance, there is no dispute that Vasquez sent a copy of
the summons and complaint to each defendant by certified mail
addressed to this courthouse on May 17, 2004 after filing the
complaint on May 29, 2003. Clearly, Vasquez has failed to satisfy
any of the prescribed methods for proper service as set forth in
Rule 4(i). Accordingly, the Court finds that Vasquez has not effected proper
service under Rule 4(i), and that further, the 120-day period has
expired under Rule 4(m).
Since the 120-day period has elapsed, the Court is entitled to
dismiss the complaint without prejudice unless the plaintiff
shows "good cause" for failure to timely serve summons and
complaint on the opposing party. Fed.R.Civ.P. 4(m) ("if the
plaintiff shows good cause for the failure, the court shall
extend the time for service for an appropriate period.")
(emphasis added). Plaintiff may demonstrate good cause where
"insufficiency of service results from circumstances beyond the
plaintiff's control." Feingold v. Hankin, 269 F.Supp.2d 268,
276 (S.D.N.Y. 2003); Coram Healthcare Corp. v. Cigna, No. 00
Civ. 2677 (RMB), 2002 U.S. Dist LEXIS 23307, at *31 (S.D.N.Y.
July 23, 2002).
In support of his argument that he has shown good cause for the
delay, Vasquez merely claims that he inadvertently mailed the
copy of the complaint and summons to the incorrect address on May
4, 2004. Since Vasquez has failed to explain how circumstances
beyond his control resulted in his inability to effect service,
the Court concludes that Vasquez has not established good cause.
Feingold, 269 F.Supp.2d at 277.
The Court may nevertheless grant a continuance even without
good cause. See Fed.R.Civ.P. 4(m) Advisory Comm. Note (a
continuance may be granted "even if there is no good cause
shown"); Henderson v. United States, 517 U.S. 654, 662 (1996);
Coram Healthcare Corp., 2002 U.S. Dist. LEXIS 23307, at *33. In
determining whether a continuance is appropriate, a court may
consider: (1) whether the statute of limitations would bar the
re-filed action; (2) whether the defendant had attempted to
conceal the defect in service; (3) whether the defendant had
actual notice of the claims asserted in the complaint; and (4) whether the defendant would be prejudiced by
the granting of plaintiff's relief from the provision.
Feingold, 269 F.Supp.2d at 277; Coram, 2002 U.S. Dist. LEXIS
23307, at *33.
The applicable statute of limitations for § 1983 claims in New
York is three years, which begins to run from the moment
plaintiff is aware of the injury on which the claim is based.
Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 331-32
(2d Cir. 1997). Because, as Vasquez acknowledges, he was aware of
the injury as of February 19, 2002, any re-filed action would be
barred by the statute of limitations. Significantly, defendants
have failed to assert that they would be prejudiced by a
continuance, and nothing in the record indicates the possibility
of prejudice arising from plaintiff's untimely service. Charles
v. New York City Police Dept., et al., No. 96 Civ. 9747 (WHP)
(THK), 1999 U.S. Dist. LEXIS 14274, at *24 (S.D.N.Y. Sept. 15,
1999) (exercising discretion to grant plaintiff continuance
because the statute of limitations would bar plaintiff from
re-filling her suit against the individual defendants and
defendants failed to demonstrate prejudice arising from untimely
Accordingly, the Court denies defendants' motion to dismiss
without prejudice  in its entirety and directs Vasquez to
effect proper service under Rule 4(i) within 90 days of this
Opinion and Order. However, the Court advises plaintiff that
no further extensions will be granted, and that if he fails
to effect proper service, his claims may be dismissed.
Because Vasquez is proceeding in forma pauparis, the U.S.
Marshal's Service will effect service on his behalf and at no
cost to the plaintiff provided he fills out the appropriate
paperwork. Fed.R.Civ.P. 4(c). The Court requests the Pro Se
Office in the Southern District of New York to mail to plaintiff [Jose Vasquez,
52494-054, c/o FCI Lorretto, P.O. Box. 1000, Lorretto, PA 15940]
a sufficient number of summons and any other paperwork necessary
to effect service on defendants. Counsel for defendants is
requested to provide to plaintiff, with a copy for the Court, the
last known address of each individual defendant. Plaintiff may
contact the Pro Se Office of this Court at 500 Pearl Street, Room
230, (212) 805-0175, where Spanish-speaking assistance is
available for assistance.