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Rivera v. Goord

April 18, 2006

FERNANDO RIVERA, PLAINTIFF,
v.
GLENN S. GOORD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. Hugh B. Scott

ORDER

(CONSENT)

Before the Court is defendants Jeziorski*fn1 and Tomaselli's motion to dismiss, pursuant to Fed. R. Civ. P. 12(b), because they contend the action is time barred as to them (Docket No. 32). Defense counsel notes that the other remaining defendants Dlugokinski, Doyle, and Clark had not been served with the Amended Complaint but, if they were served, the motion would apply to them as well (see Docket No. 33, Defs. Memo. of Law at 2-3; Docket No. 34, Order at 1 n.1). The parties previously consented to proceed before the undersigned as Magistrate Judge (Docket No. 18, June 28, 2004).

The Court issued a briefing schedule for this motion, with responses due by April 7, 2006, and any reply due by April 13, 2006. The motion was deemed submitted without oral argument as of April 13, 2006. (Docket No. 34.) Also before the Court is plaintiff's motion for extension of time to respond (Docket No. 35); there, plaintiff, a pro se inmate in state custody, seeks 90 days due to his problems having access to the law library in his current facility and his anticipated transfer to another facility within the next 30 days (id.).

Given the Court's review of its own record in this matter, see Fed. R. Evid. 201(b), including facts not within the knowledge of the parties, the Court now considers the motion submitted without further papers from plaintiff (despite his request for an extension of time to so respond) or defendants. The Court's correspondence, while contained in the Court Clerk's paper file for this case, is not in the record or noted in the docket.*fn2

BACKGROUND

Plaintiff alleged that he was assaulted and molested on October 6, 2000, while incarcerated at Wende Correctional Facility. Although the Complaint in this action was dated September 21, 2003 (Docket No. 1), the Court filed the Complaint on November 5, 2003. Plaintiff commenced this 42 U.S.C. § 1983 excessive force action against defendants Commissioner of the New York State Department of Correctional Services Glenn Goord, the New York State Department of Correctional Services, corrections sergeant Timothy Jeziorski, corrections officer Edward Tomaselli, and four John Doe defendant officers, and Carol Doe unknown corrections nurse (Docket No. 1). Plaintiff also filed a motion for in forma pauperis status on November 5, 2004 (Docket No. 2).

Although the Complaint was filed by the Court on November 5, 2003 (Docket No. 1), the Court's correspondence acknowledges receipt of the Complaint and his in forma pauperis application (see Docket No. 2, dated Sept. 21 and Oct. 8, 2003) on September 25, 2003, stating that plaintiff needed to "complete, date and sign the enclosed application to proceed in forma pauperis." The letter concluded that "upon receipt of the completed application, we will begin to process your legal action"(letter of Sept. 25, 2003).

That letter did not indicate that plaintiff had to pay the filing fee or make arrangements for its payment.

On October 28, 2003, the Court Clerk rejected these papers for filing absent plaintiff's payment of the filing fee (then $150) or execution of an authorization to have the fee deducted from his prison account (letter of Oct. 28, 2003), see Prison Litigation Reform Act, Pub. L. No. 104-134, tit. VIII, § 804, codified at 28 U.S.C. § 1915(b)(1). Finding that plaintiff provided insufficient information on his application to determine his in forma pauperis application, the Court then ordered plaintiff to file a complete in forma pauperis application, including either payment of the filing fee or execution of the prison certification, by December 10, 2003 (Docket No. 3, Order of Nov. 7, 2003). On November 11, 2003, the Court Clerk then wrote to the superintendent of plaintiff's then-current facility, to make arrangements to deduct either the full filing fee amount or incremental payments for the fee (letter of Nov. 11, 2003). Plaintiff submitted the completed application on November 12, 2003 (Docket No. 4).

On February 6, 2004, the Court ordered service of the Complaint upon the named defendants and directed defendants to answer the Complaint (Docket No. 5). Defendants moved to dismiss the Complaint as to Commissioner Goord, Jeziorski, and Tomaselli (Docket No. 10). Plaintiff then filed a motion for leave to amend the Complaint (Docket No. 13) naming the John Doe defendants as correction employees Dlugokinski, Doyle, and Clark and dismissing his claims against Commissioner Goord and nurse Carole Doe (see Docket No. 33 Defs. Memo. of Law at 2). After consenting to Magistrate Judge jurisdiction (Docket No. 18) and granting a few extensions (see Docket Nos. 16, 20), plaintiff again filed for leave to amend his Complaint (Docket No. 21), naming defendant Clark as one of the John Doe defendants (see Docket No. 23, Order, at 3). The Court granted in part and denied in part defendants' motion to dismiss (Docket No. 23), denying on the grounds that plaintiff failed to state this Court's subject matter jurisdiction under the Prison Litigation Reform Act, Pub. L. No. 104-134, tit. VIII, § 803(d), codified at 42 U.S.C. § 1997e, but granted the dismissal of claims against defendants in their official capacities. The Court also granted plaintiff leave to amend the Complaint and dismissed with prejudice claims against Goord and Carole Doe (Docket No. 23).

At a status conference on December 6, 2005, the Court noted that plaintiff had not filed the Amended Complaint and plaintiff stated his intention to file and serve an Amended Complaint (Docket No. 27). The Court ordered plaintiff to so file that amended pleading by January 9, 2006 (Docket No. 28), and later granted plaintiff an extension of time to file that pleading to March 3, 2006 (Docket No. 30). Plaintiff filed his Amended Complaint (dated February 24, 2006, and received in the Chambers of the undersigned on March 6, 2006) on March 8, 2006 (Docket No. 31).

The moving defendants (those served with that amended pleading) make their present motion to dismiss (Docket No. 32). They argue that the original Complaint was time barred (hence barring its amendment) under the three-year statute of limitations for federal civil ...


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