United States District Court, S.D. New York
November 10, 2005.
HOMERO BORDAS, Plaintiff,
CHARLES GREINER, Superintendent, Green Haven Correctional Facility; Correctional Lieutenant KEYSER; Correctional Sergeant ULRICH; Correctional Officer MILLER; Correctional Officer KUTZ, individually and in their official capacities. Defendants.
The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge
OPINION AND ORDER
Plaintiff Homero Bordas, who is proceeding pro se, filed this
complaint against various officials at the New York State Green
Haven Correctional Facility ("Green Haven") pursuant to
42 U.S.C. § 1983. Plaintiff alleges that the named Defendants violated his
rights under the First, Sixth, Eighth and Fourteenth Amendments
by conducting improper searches of his person and cell and by
allowing or causing the loss of papers relevant to his criminal
appeal. The Defendants have moved to dismiss portions of
Plaintiff's complaint for failure to state a claim upon which
relief may be granted, pursuant to Rule 12(b)(6). For the reasons
stated below, I find that the Defendant's motion should be
granted and that portions of the Plaintiff's complaint should be
According to the complaint, Plaintiff was incarcerated at Green
Haven between April and October of 2001. On September 4, 2001,
Plaintiff was subjected to a pat frisk by Defendants Ulrich and
Miller, as well as other unnamed correctional officers, during which Defendant Miller screamed at the Plaintiff in an
attempt to intimidate him. Later that same day, Plaintiff was
subjected to a strip frisk and placed under keep lock pursuant to
the orders of Defendants Keyser and Ulrich. Plaintiff's cell was
subsequently searched in a callous manner by Defendant Miller and
another officer at the facility.
On September 10, 2001 Defendant Kutz took a box of mail
containing legal documents that belonged to the Plaintiff. On
September 11, 2001, Defendant Miller returned the opened box of
papers to the Plaintiff. Plaintiff complained that his mail had
been opened outside of his presence and also asserted that
certain legal documents were missing. Plaintiff then filed a
grievance with prison authorities and sent a complaint to
Defendant Greiner, the prison Superintendent and prison officials
conducted an internal investigation.
STANDARD OF REVIEW
A Rule 12(b)(6) motion to dismiss requires the court to
determine if plaintiff has stated a legally sufficient claim. A
motion to dismiss under Rule 12(b)(6) may be granted only if "it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80
(1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). The
court's function is "not to assay the weight of the evidence
which might be offered in support" of the complaint, but "merely
to assess the legal feasibility" of the complaint. Geisler v.
Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In evaluating
whether plaintiff may ultimately prevail, the court must take the
facts alleged in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. See Jackson Nat'l Life
Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir.
1994). Moreover, a complaint submitted pro se must be liberally
construed and is held to a less rigorous standard of review than formal pleadings drafted by an attorney.
Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163
(1980); Salahuddin v. Coughlin, 781 F.2d 24, 28-29 (2d Cir.
1986). "A complaint fails when, drawing all such reasonable
inferences in plaintiff's favor, the complaint still falls short
of setting out a legally sufficient claim." Colon v. Russett,
No. 02 Civ. 9982(AKH), 2004 WL 992703, at *1 (S.D.N.Y. May 5,
A. All Claims Arising from Actions and Events Occurring Prior
to September 9, 2004 are Time-Barred
The actions of which Plaintiff complains occurred between
September 4 and September 11, 2001. The complaint was signed by
Plaintiff on September 9, 2004 and was received by the Pro Se
Office on September 20, 2004. Under the "prison mailbox rule,"
documents submitted by a pro se litigant are deemed filed when
delivered to prison officials for mailing. See Dory v. Ryan,
999 F.2d 679, 682 (2d Cir. 1993). For the purposes of this
Motion, it is assumed that the Plaintiff gave the complaint to
prison officials on the date he signed it and the complaint is
therefore deemed filed as of September 9, 2004.
Section 1983 does not provide for a specific statute of
limitations. 42 U.S.C. § 1983. Instead, federal courts apply the
relevant state law limitations period for personal injury actions
to § 1983 actions. See Wilson v. Garcia, 471 U.S. 261, 276
(1985). In New York, the applicable statute of limitations for
personal injury actions is three years. N.Y.C.P.L.R. § 214(5)
In this instance, Plaintiff alleges violations of his
constitutional rights that occurred between September 4 and
September 11, 2001. In order to comply with the applicable three year statute of limitations period, Plaintiff's
complaint must have been filed within three years of those dates.
In paragraphs 14 through 18 of his complaint, Plaintiff alleges
that his person and cell were subjected to improper searches on
September 4, 2001. These allegations are distinct from
Plaintiff's further allegations that prison officials improperly
interfered with his mail on September 10 and 11, 2001. As such,
the applicable statute of limitations period expired on September
4, 2004, five days before Plaintiff filed the instant complaint.
Plaintiff, however, asserts that the statute of limitations
period should be tolled because he was denied access to his legal
materials in September of 2004, the time of the period's
expiration, when he was transferred between correctional
facilities. Equitable tolling is applied in the Second Circuit
"`as a matter of fairness' where a plaintiff has been `prevented
in some extraordinary way from exercising his rights.'" Johnson
v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (quoting Miller v.
International Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir.),
cert. denied, 474 U.S. 851, 106 S.Ct. 148, 88 L.Ed.2d 122
(1985)). In this instance, there are no facts that would warrant
application of the equitable tolling doctrine. Plaintiff was free
to assert his claims at any time within the three years following
the alleged violations, in September of 2001. The fact of his
transfer to a new correctional facility on or about September 2,
2004 does not excuse his late filing. Because there is no
evidence of the Plaintiff have been prevented from exercising his
rights in some "extraordinary way," this court declines to apply
the equitable tolling doctrine and Plaintiff's claims arising
from the events of September 4, 2001 are therefore dismissed. B. Defendant Greiner is Dismissed Because of Lack of Personal
Involvement in the Actions Complained of by Plaintiff
In his complaint, Plaintiff names the Superintendent of Green
Haven, Charles Greiner, as a Defendant. The complaint does not
allege any personal involvement in the actions complained of, but
alleges instead that he failed to respond appropriately to the
complaint filed by Plaintiff.
Personal involvement of a defendant is a prerequisite for
liability under § 1983. Colon v. Coughlin, 58 F.3d 865, 873 (2d
Cir. 1995). Under the test set forth in Colon, personal
involvement of a supervisory official may be established by
evidence that: 1) the official participated directly in the
alleged constitutional violation; 2) the official, after being
informed of the violation through a report or appeal, failed to
remedy the wrong; 3) the official created a policy or custom
under which unconstitutional practices occurred, or allowed the
continuance of such a policy or custom; 4) the official was
grossly negligent in supervising subordinates who committed the
wrongful acts; or 5) the official exhibited deliberate
indifference to the rights of others by failing to act on
information indicating that unconstitutional acts were occurring.
Here, there is no suggestion of any direct involvement by
Defendant Greiner in any of the events alleged by the Plaintiff.
Further, the exhibits to Plaintiff's complaint demonstrate that,
upon receipt of Plaintiff's letter, Defendant Greiner instructed
Defendant Totter to conduct an investigation into the matter.
Finally, outside of Plaintiff's conclusory statement that
Defendant Greiner was "negligent, careless and indifferent,"
Plaintiff makes no allegation that Defendant Greiner created a
custom of allowing constitutional violations or that Defendant
Greiner was "negligent, careless and deliberately indifferent. Having failed to allege facts sufficient to establish the
personal involvement of Defendant Greiner under the standard set
forth in Colon, Plaintiff's complaint against Defendant Greiner
In accordance with the foregoing, the allegations set forth in
paragraphs 14 through 18 of the Plaintiff's complaint relating to
the search of his person and cell on September 4, 2001 are
stricken as are the allegations pertaining to Defendant Greiner
along with related allegations and prayer for relief. Plaintiff's
allegations as to the improper interference with his mail on
September 10 and 11, 2001 and as against the other Defendants
remain for further proceedings.
The Attorney General and the Plaintiff pro se are hereby
directed to appear for a status conference on December 2, 2005 at
10:30. Because Plaintiff pro se is incarcerated, the Attorney
General is hereby directed to arrange for Plaintiff to
participate by phone. Plaintiff must contact chambers at (212)
805-0152 at the above scheduled time. The Attorney General shall
also serve a copy of this Order on counsel for all parties and
retain proof of such service.
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