The opinion of the court was delivered by: Joseph F. Bianco, District Judge
Plaintiff pro se Frank Barnett ("plaintiff" or "Barnett") brought this action against defendants Robert Etheridge, Robert Howard, Daniel Lutz, and Deputies John Does ("defendants"), alleging that defendants violated Barnett's rights under 42 U.S.C. § 1983 in connection with an alleged assault on Barnett on April 8, 2004, when he was incarcerated at the Suffolk County Correctional Facility.
Defendants now move to dismiss Barnett's complaint pursuant to Rule 12 of the Federal Rules of Civil Procedure on the grounds that: (1) the complaint is barred by the statute of limitations; and (2) plaintiff has not administratively exhausted his claim pursuant to the Prisoner Litigation Reform Act, 42 U.S.C. § 1997(e) (the "PLRA"). For the reasons set forth below, defendants' motion is granted on statute of limitations grounds.
Barnett filed the initial complaint in this action on April 18, 2007, and an amended complaint on May 31, 2007. Defendants filed the instant motion on July 13, 2007. Appended to their motion papers was an Affidavit of Service By Mail, certifying that service of the papers was made upon plaintiff that day.
Pursuant to a briefing schedule the Court had set during a pre-motion conference on June 29, 2008, Barnett was to respond to defendants' motion by August 17, 2007, but did not do so or otherwise communicate with the Court. By Order dated January 18, 2008, the Court instructed plaintiff to explain to the Court in writing, by January 31, 2008, why he had failed to comply with the Court's briefing schedule.
By letter dated January 23, 2008, Barnett stated to the Court: "I did not receive no paper work from S.C. Law Department that I did not [respond]." The address plaintiff supplied on this letter is identical to the address contained in the Affidavit of Service By Mail.
On January 30, 2008, defendants filed a letter with the Court indicating that they had re-served their motion papers on plaintiff that day. To date, Barnett has not responded to this motion or otherwise communicated with the Court. Moreover, plaintiff failed to appear at a conference before Magistrate Judge E. Thomas Boyle on February 14, 2008, or to otherwise communicate with Magistrate Judge Boyle's chambers.*fn1
In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir. 2006); Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005). The plaintiff must satisfy "a flexible `plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (May 21, 2007). The Court, therefore, does not require "heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face." Id. at 1974. Moreover, as the plaintiff is appearing pro se, the Court shall "`construe [his complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggests.'" Weixel v. Bd. of Educ. of the City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)).
Defendants contend that plaintiff's Section 1983 claim should be dismissed by this Court as time-barred. As set forth below, the Court agrees with defendants because the complaint in this action was filed more than three years after the incident alleged in the complaint occurred.
As there is no federal statute of limitations governing the Reconstruction-era civil rights statutes, the Supreme Court has advised that "federal courts should select the most appropriate or analogous state statute of limitations" to determine the proper limitations period. Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987), superseded on other grounds by statute, 28 U.S.C. § 1658(a), as recognized in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369 (2004); accord Wilson v. Garcia, 471 U.S. 261, 276 (1985). With regard to Section 1983 claims, federal courts generally apply the forum state's statute of limitations for personal injury claims, which is three years in the State of New York pursuant to New York Civil Practice Law § 214(5). See Owens v. Okure, 488 U.S. 235, 250-51 (1989); Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002), cert. denied, 538 U.S. 922 (2003). However, federal law governs the question of when a Section 1983 claim accrues. See M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221 (2d Cir. 2003); Pearl, 296 F.3d at 80; Covington v. City of New York, 171 F.3d 117, 121 (2d Cir. 1999). Under federal law, "the time of accrual [is] that ...