United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
G. KOELTL, District Judge.
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
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).
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).
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).
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,
Court construes Berman''s complaint to raise claims
under 42 U.S.C. § 1983. See Pabon, 459 F.3d at
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.
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.
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.
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 ...