United States District Court, N.D. New York
Plaintiff, pro se
DECISION AND ORDER
N. HURD UNITED STATES DISTRICT JUDGE
Anthony Bester ("Bester" or "plaintiff")
filed his pro se complaint in this action in April 2018
seeking to assert Eighth Amendment excessive force claims
arising out of an incident that occurred on August 28, 2014
at Great Meadow Correctional Facility ("Great Meadow
C.F."). See Dkt. No. 1
("Compl."). Plaintiff did not pay the filing fee for
this action and requested leave to proceed in forma pauperis.
Dkt. No. 2.
review of the complaint in light of 28 U.S.C. § 1915(e)
and 28 U.S.C. § 1915A, it appeared that Bester's
claims were barred by the three year statute of limitations
for claims asserted under 42 U.S.C. § 1983. Dkt. No. 4
("May Order") at 5-7. It further appeared that
plaintiff did not allege facts in the complaint sufficient to
plausibly suggest that equitable tolling would be warranted.
Id. at 6-7. Nevertheless, plaintiff was afforded the
opportunity to file an amended complaint if he wished to
avoid dismissal of this action. Id. at
4, 2018, a five-page submission entitled "Formal
Amended Complaint Notice" was received from Bester and
docketed as his amended complaint. Dkt. No. 9. Upon review of
this document, it appears that plaintiff's amended
complaint is a copy of a submission which plaintiff filed as
an exhibit to his original complaint. See Dkt. No.
1-1 at 1-5.
noted in the May Order, this supplemental submission sets
forth the facts regarding the August 28, 2014 incident in
considerably greater detail than does the complaint itself.
May Order at 5 n.4. However, because this submission does not
demonstrate that this action was timely filed or that the
limitations period is subject to equitable tolling, it does
not cure the deficiencies identified in the May Order.
question thus becomes whether dismissal of this action is
warranted. See Sealed Plaintiff v. Sealed Defendant,
537 F.3d 185 (2d Cir. 2008) (stating that complaints from pro
se litigants should be liberally construed and that such
litigants should be given the chance to amend their
complaints as needed). Although the Court harbors
considerable doubt about whether yet another opportunity to
file an amended complaint will be meaningful, Bester will
nevertheless be afforded the benefit of that doubt and
granted a period of thirty (30) days in
which to submit a second amended complaint.
second amended complaint must contain a short and plain
statement of the facts Bester relies on in support of his
claims "that the defendants violated his constitutional
rights and that his claims against the defendants are timely
filed; i.e., that 'extraordinary circumstances'
prevented plaintiff from performing the required act, and
that he acted 'with reasonable diligence' during the
period that he seeks to toll." May Order at 8 (citing
Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir.
is further advised that his failure to file a second amended
complaint within thirty (30) days of the
filing date of this Decision and Order will result in
dismissal of this action without prejudice without further
Order of the Court.
amended complaint (Dkt. No. 9) does not cure the pleading
deficiencies identified in the May Order and is dismissed in
accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28
U.S.C. § 1915A(b)(1) for failure to state a claim upon
which relief may be granted;
light of his pro se status, plaintiff is granted leave to
file a second amended complaint as set forth above
within thirty (30) days from the ...