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Keitt v. City of New York

August 9, 2010

DEVIN KEITT, PLAINTIFF,
v.
THE CITY OF NEW YORK; JOHN HENRY DOE AS COMMISSIONER OF THE NEW YORK CITY POLICE DEPARTMENT; ANDY SEEWALD, PETE MASSA, JOHN DOE # 2 THROUGH 14, AS MEMBERS OF THE NEW YORK CITY POLICE DEPARTMENT, IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Honorable P. Kevin Castel, U.S.D.J.

REPORT AND RECOMMENDATION

In this action, pro se plaintiff Devin Keitt ("Plaintiff") alleges that, on June 8, 2005, he was racially profiled, falsely arrested and imprisoned, subjected to suggestive and tainted identification procedures and a conspiracy to manufacture false charges, and denied medical treatment, all in violation of his First, Fourth, Fifth, Sixth, Eighth and 14th Amendment rights and Article I of the New York State Constitution. The defendants that have, to date, been served and appeared in this case -- the City of New York (the "City"), and Police Commissioner Raymond Kelly (named herein as "John Henry Doe, as Commissioner of the New York City Police Department")*fn1 -- now move pursuant to Fed. R. Civ. P. 12(b)(6) to dismiss the Complaint on a number of grounds, including that Plaintiff's claims are barred by the applicable statutes of limitations. For the reasons set forth herein, I recommend that the pending motion to dismiss (Dkt. 14) be granted and that the Complaint be dismissed as to the moving defendants. Further, because Plaintiff's claims against the remaining defendants would be subject to dismissal for the same reasons, I also recommend that the Court sua sponte dismiss the Complaint as to those defendants as well, even if they have not yet appeared in the action.

BACKGROUND*fn2

A. Plaintiff's Arrest, Incarceration, and Legal Assistance from Another Inmate

According to the Complaint, Plaintiff was arrested on June 8, 2005, by officers of the New York City Police Department, including defendants Andy Seewald ("Seewald") and Pete Massa ("Massa"), in connection with the robbery of a gas station. (See Complaint dated May 27, 2009 ("Compl.") (Dkt. 2) at ¶¶ 11-58.) Plaintiff was charged with Robbery in the First Degree, among other related charges (see Plaintiff'sRap Sheet, dated July 11, 2007 ("Rap Sheet"), attached as Ex. A1 to Compl.), and was convicted by a jury on February 7, 2006. (See id. at 17.) Plaintiff is currently incarcerated at Elmira Correctional Facility ("Elmira"). (See Transcript of Telephone Conference before this Court, dated Mar. 19, 2010 ("3/19/10 Tr.") (Dkt. 25) at p. 10, l. 17.)

Previously, while incarcerated at Upstate Correctional Facility, Plaintiff met another inmate, named Bruce M. King ("King"). (See Transcript of Telephone Conference before this Court, dated Nov. 13, 2009 ("11/13/09 Tr.") (Dkt. 23) at p. 10, ll. 10-21.) On January 21, 2009,

Plaintiff informed King that he "was dyslexic, [and] had not been able to acquire assistance from New York State Department of Correctional Services (DOCS) Law Library." (See Affidavit/Affirmation of Bruce M. King, sworn to May 12, 2009 ("King. Aff."), attached as Attachment A to Compl., at ¶ 1.) According to King, Plaintiff asked him to read Plaintiff's appellate brief and "provide[] a verbal synopsis of its contents." (See id. at ¶ 2.) On February 17, 2009, Plaintiff asked King to read and summarize Plaintiff's reply brief on appeal, and again King did so. (See id. at¶ 3.) Between February 15 and 21, 2009, King requested and obtained all documents related to Plaintiff's criminal conviction. (See id. at¶ 4.) On February 23, 2009, King told Plaintiff that "his arrest was in violation of [the] First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and about [a] Police cover-up," and explained to Plaintiff "the fraud on behalf of the prosecution." (Id. at¶¶ 5-6.)

At King's suggestion, Plaintiff filed an Inmate Grievance Complaint with DOCS on February 23, 2009. (See id. at ¶ 7.) In his grievance complaint, Plaintiff asked the law library to help him prepare his Section 1983 and Article 78 claims because he was learning disabled, could not read or write, and had a deadline. (See Inmate Grievance Complaint # UST-38392-09 dated Feb. 23, 2009, attached as Ex. A1 to Compl.) Further, on February 24, 2009, Plaintiff sought assistance from this Court's Pro Se Office. (See King Aff. at ¶ 9; Letter to Pro Se Clerk from Plaintiff, attached as Ex. A2 to Compl.) The Pro Se Office responded on March 4, 2009, enclosing the forms Plaintiff needed to initiate an action pursuant to 42 U.S.C. § 1983. (Letter to Plaintiff from Pro Se Office Clerk M. Santiago, dated Mar. 4, 2009, attached as Ex. A2 to Compl.)

B. Plaintiff's Complaint and the Instant Motion

On May 27, 2009, with King's assistance, Plaintiff filed his Complaint in this action,*fn3 asserting putative claims under 42 U.S.C. §§ 1981, 1983, 1985 and 1986, and the state constitution.*fn4 On October 26, 2009, the City and Commissioner Kelly (together, "Defendants") filed their motion to dismiss the Complaint. Construing Plaintiff's claims as arising under Section 1983 and state law, Defendants argued, inter alia, that Plaintiff's claims are time-barred by the applicable statutes of limitations. (See Def. Mem. at 2, 5-7.) In particular, Defendants argued that Plaintiff's claims accrued at the time of his arrest in 2005, but that he did not file his Complaint until nearly four years later, in 2009, well outside the three-year limitations period applicable to Section 1983 claims and the one-year-and-90-day limitations period applicable to state claims against the City or its employees. (See id. at 6-7.)

In a series of telephonic case management conferences before this Court, Plaintiff informed the Court that he had dyslexia,*fn5 and, because of this, he would not be able to prepare opposition papers without assistance. (See 11/13/09 Tr. at p. 5, l. 24 - p. 8, l. 1.) Plaintiff explained that, although King had been assisting him, Plaintiff lost that assistance when he was transferred to Elmira. (See id. at p. 10, ll. 10-21.) Plaintiff also told the Court that, when King was later transferred to Elmira, as well, Plaintiff requested permission for King to help him again with his legal paperwork, but received no response. (See Transcript of Telephone Conference before the Court, conducted Feb. 2, 2010 ("2/2/10 Tr.") (Dkt. 22) at p.3 ll. 12-16.)*fn6

On February 16, 2010, following a conference with the parties, the Court issued an Order stating that, in addressing Defendants' motion, it would first focus on Defendants' statute of limitations arguments. (See Order dated Feb. 16, 2010 (Dkt. 21), at 2.) The Court directed Plaintiff to respond, in the first instance, only to those arguments. (See id.) The Court instructed Plaintiff that, if he were able to obtain assistance in preparing opposition papers, then he should serve and file his opposition, on the statute of limitations issue, by March 19, 2010. (Id.) If, on the other hand, he were unable to obtain such assistance, then, the Court stated, it would instead hear oral argument from all parties on that date. (See id.)*fn7

C. Plaintiff's Oral Argument

In lieu of submitting written opposition papers, Plaintiff proceeded to present oral argument at a telephone conference before the Court on March 19, 2010. (See 3/19/10 Tr.) Plaintiff stated that he was born with dyslexia, which prevented him from "learning and reading and writing and working as an average person on the same playing field." (Id. at p. 3, l. 25 -p. 4, l. 3.) Plaintiff argued that, because of his dyslexia, he was unable to read and write and did not know that his constitutional rights had been violated, until King brought this to his attention more that three years after his arrest. (See generally id.) Plaintiff maintained that he could only read and write with great difficulty, and, but for his dyslexia, he would have addressed his claims in 2005. (Id. at p. 4, ll. 9-23.)

When asked if he had ever tried to file any type of grievance with the prison in 2005, Plaintiff said that he did not know he could, reiterating that he had "just learned [his] constitutional rights when [he] was in the cell with King for a whole year." (Id. at p. 5, ll. 6-19.) Plaintiff said that he could read at roughly a second-grade reading level and had to ask people to read him letters from counsel or the Court. (Id. at p. 6, l. 25 - p. 7, l. 20.)*fn8 Plaintiff further explained that he could recognize and identify small words like "the," "it," and "is," but said that, "when it gets intense[,] [he] can't do it." (Id. at p. 7, ll. 21-23.) When asked if anyone in the law library or prison could have helped him prepare a complaint, Plaintiff answered that he had been relying on his appellate attorney and, while his criminal appeal was still pending, he did not know to go to the law library for help with his case. (See id. at p. 11, ll. 9-23.) Plaintiff elaborated that he had "just learned about constitutional violations," after King had explained to him that "in civil law you are the prosecutor," whereas "in criminal law you are a defendant," and this was why Plaintiff was "now on complaint." (Id. at ll.13-17.)

Plaintiff further reported that he had been unable to obtain any help finding and reading case law on the subject of equitable tolling of a statute of limitations on the ground of disability, and that the only information he had regarding the statute of limitations was from King.*fn9 (See id. at p. 11, l. 24 - p. 12, l. 4.) Plaintiff argued, though, that "the statute of limitations start[s] from the time that you are made aware of the constitutional violation," and that the relevant issue is "when you became aware that you had suffered some kind of wrong for which you might be able to seek to recover damages." (Id. at p. 12, ll. 5-9.) Plaintiff maintained that, while, at the time of his arrest, he was aware of what had happened to him, he did not know that there had been any constitutional violation for which he could sue, until King read all of his case materials in January of 2009. (See id. at p. 12, l. 10 - p. 13, l. 7.)

When the Court asked if there was any existing documentation of Plaintiff's reading level, Defendant's counsel pointed out that the only documentation Plaintiff had produced was his Individualized Education Program form from 1995, classifying Plaintiff as "learning disabled," but not specifically mentioning dyslexia. (See id. at p. 14, ll. 5-12; see also Individualized Education Program Form #25-6300.00.3 ("IEP Form"), dated Apr. 8, 1995, attached as Ex. A to Compl.) Plaintiff explained ...


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