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Berman v. Perez

United States District Court, S.D. New York

January 24, 2018

SIMON BERMAN, Plaintiff,
v.
CORRECTION OFFICER PEREZ, ET AL., Defendants.

          MEMORANDUM OPINION & ORDER

          JOHN G. KOELTL, District Judge.

         The plaintiff, Simon Berman, an inmate at the Great Meadow Correctional Facility, brings this action pro se against the defendants, Correction Officer Octavio Perez, Captain Williams, Brian Weise, Christopher Wong, Office Bobbitt, Officer Wallace, Officer Jones, Captain Agard, and one John Doe, seeking relief pursuant to 42 U.S.C. § 1983 for violations of his federal civil rights. The defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the plaintiff s claims against Captain Agard as barred by the statute of limitations. The plaintiff has missed three deadlines to file an opposition brief. Nevertheless, rather than granting the motion on default, the Court has considered the motion carefully and concludes that it is well-founded. The defendants' motion is granted for the following reasons.

         I.

         In deciding a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true, and all reasonable inferences must be drawn in the plaintiff's favor. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). The Court's function on a motion to dismiss is "not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Goldman v. Bel-den, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court should not dismiss the complaint if the plaintiff has stated "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twoxnbly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged, " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While the Court should construe the factual allegations in the light most favorable to the plaintiff, "the tenet that a court must accept as true all of the allegations contained in the complaint is inapplicable to legal conclusions." Id.; see also Pratt v. City of New York, 929 F.Supp.2d 314, 316 (S.D.N.Y. 2013).

         Because the defendants bear the burden of establishing the expiration of the statute of limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be granted only if it is clear on the face of the complaint that the statute of limitations has run. See Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008); see also Fargas v. Cincinnati Mach., LLC, 986 F.Supp.2d 420, 427 (S.D.N.Y. 2013).

         The pleadings and allegations of a pro se plaintiff must be construed liberally for the purposes of Rule 12(b)(6). See McKithen v. Brown, 481 F.3d 89, 96 (2d. Cir. 2007) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)); Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002}. Additionally, the submissions of a pro se litigant should be interpreted to "raise the strongest arguments that they suggest." Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)); see also Burke v. Metro. Transp. Auth., No. 09-CV-3291, 2009 WL 4279538, at *2 (S.D.N.Y. Dec. 1, 2009).

         II.

         On April 8, 2017, Berman, then incarnated at Great Meadow Correctional Facility, delivered a formal complaint to prison authorities naming as defendants "Correction Officer Perez, " "Captain Williams, " Brian Weise, Christopher Wong, "Officer Bobbitt, " "Officer Wallace, " "Officer Jones, " and two John Does employed at the Manhattan Detention Complex (the "MDC"). Dkt. No. 2. Berman's complaint alleged that on April 16, 2014, April 17, 2014, and June 9, 2014, while he was being held at the MDC, prison officials abused him physically and denied him necessary medical treatment. Berman alleged that the John Does participated in the June 9, 2014, incident.

         The Court construes Berman''s complaint to raise claims under 42 U.S.C. § 1983. See Pabon, 459 F.3d at 248.

         On May 2, 2017, the Court issued an Order pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997), instructing the defendants to attempt to ascertain the identities and badge numbers of "Correction Officer Perez" and the two John Does. Dkt. No. 6.

         On June 30, 2017, the defendants identified one of the John Does as Captain Agard. Dkt. No. 11. Berman filed an amended complaint on August 7, 2017, which identified Captain Agard as a defendant. Dkt. No. 18.[1]

         On September 18, 2017, the defendants moved pursuant to Rule 12(b)(6) to dismiss the claims against Captain Agard as barred by the statute of limitations. Dkt. Nos. 24-26.[2]

         The Court ordered Berman to file any brief in opposition to the defendants' motion to dismiss by October 10, 2017. Dkt. No. 20. On November 6, 2017, the Court issued an Order noting that Berman had not filed an opposition brief by the October 10 deadline and extending Berman's time to file to November 17, 2017. Dkt. No. 29. On December 5, 2017, the Court issued another Order noting that Berman had missed the November 17 ...


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