Oliphant v. Villano et al
ORDER: Defendant's Motion 231 to Dismiss is GRANTED. Rhonda Dixon's Motion 234 to join in her co-defendants' motion is also GRANTED. The Clerk is directed to remove Michael, Anthony, Timothy, and Rhonda Dixon from the case caption. The parties shall file their Joint Trial Memo by July 8, 2013. Signed by Judge Janet Bond Arterton on 06/04/2013. (Flagg, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ANTHONY W. OLIPHANT,
Civil No. 3:09cv862 (JBA)
ROBERT VILLANO, MARK SHEPPARD,
WILLIAM ONOFRIO, RONALD GLIFORT,
MICHAEL MCNEIL, ERIC GOCLOWSKI,
RHONDA DIXON, DEEDRA DIXON, MARC
(“MICHAEL”) DIXON, and TIMOTHY DIXON,
June 4, 2013
RULING ON DEFENDANTS’ MOTION TO DISMISS
Defendants Michael, Anthony, Timothy, and Rhonda Dixon (collectively the
“Dixon defendants”) move [Doc. # 231] to dismiss the action against them for failure to
commence the action within the three-year statute of limitations required by Conn. Gen.
Stat. § 52-577.1 For the reasons that follow, the Dixon Defendants’ motion will be granted
and they will be dismissed from the case.
Ms. Rhonda Dixon moves [Doc. # 234] to join her co-defendants’ motion to
dismiss and memorandum in support, and represents that she “rel[ies] fully on the
arguments . . . presented on behalf of the co-defendants,” and agrees “that the Motion to
Dismiss should be based on the Statute of limitations expiring.” (R. Dixon Mot. Join
[Doc. # 234] at 1.) Ms. Dixon’s motion to join in her co-defendants’ motion is
On June 1, 2009, Plaintiff commenced suit against twenty five law enforcement
officers, several unnamed officers, and six private citizens alleging constitutional
violations of excessive force, unlawful seizure and deprivation of procedural due process,
and state law claims of assault and intentional infliction of emotional distress (“IIED”)
arising out of incidents on September 25 and 26, 2006. After the Court’s August 31, 2013
Ruling on Motions for Summary Judgment, the following counts and Defendants remain
in the action: Counts One and Two remain against Defendants Villano, Sheppard,
Onofrio, Glifort, McNeil, and Goclowski, and Count Five remains against the Dixon
defendants and Officer Villano. Count Six remains against Defendants Sheppard,
Onofrio, Villano, and the Dixons.
Plaintiff was initially granted [Doc. # 3] leave to proceed in forma pauperis
(“IFP”), however, this Order was vacated [Doc. # 14] when the Court learned that
Plaintiff did not qualify for IFP status. He had misrepresented his past litigation history in
his Complaint, where he attested under penalty of perjury that “to the best of [his]
knowledge” he had filed no other federal lawsuits in this court “within the past 10-years”
(Compl. [Doc. # 1] at 5), when, in fact, Plaintiff’s history of frivolous lawsuits disqualified
him from proceeding IFP under 28 U.S.C. § 1915(g). Plaintiff subsequently paid the
$350.00 filing fee on February 2, 2010.3 Because this matter is to proceed to trial on some
The Court presumes the parties’ familiarity with the factual allegations
underlying this action. A full recitation of the facts set out in Plaintiff’s Amended
Complaint is found in the Court’s August 31, 2012 Ruling on Motions for Summary
Judgment [Doc. # 212].
In the Court’s February 11, 2010 Initial Review Order [Doc. # 17], the Court
directed the Pro Se Prisoner Litigation Office to mail “a waiver of service of process
request packet” to defendants in their individual capacities, but it did not specifically
claims against some Defendants, the Court appointed pro bono counsel for Mr. Oliphant,
who filed an Amended Complaint [Doc. # 178] in May 2012. Upon discovering that the
Dixons were the only remaining Defendants in the action to have not been served, the
Court directed the Pro Se Prisoner litigation office to mail waiver of service requests to
the Dixons. (See Order [Doc. # 182].) No executed waivers were ever returned, and on
July 13, 2012, the Court ordered in-person service of process upon the Dixons. On
November 9 and 11, 2012, after two requests for extension of time by Plaintiff were
granted, the Dixons were served. The Dixons now move to dismiss Counts Five and Six
against them, on the grounds that Connecticut’s three-year statute of limitations for
common law intentional torts ran before they were served and the claims against them
are thus barred.
The filing of a state tort action in federal court requires the application of the
state’s tort statute of limitations, which provides: “No action founded upon a tort shall be
brought but within three years from the date of the act or omission complained of.”
Conn. Gen. Stat. § 52-577. This statute of limitations is an “occurrence statute,” meaning
that “the limitations period begins to run at the moment the act or omission complained
of occurs”; the date that the injury occurred, and the plaintiff’s discovery of the injury, are
irrelevant to the limitations analysis. Bello v. Barden Corp., 180 F. Supp. 2d 300, 310
(D.Conn. 2002) (citing Fichera v. Mine Hill Corp., 207 Conn. 204, 212 (1988); Collum v.
Chapin, 40 Conn. App. 449, 451 (1996)).
identify the Dixon defendants in its list of Defendants to be mailed waiver of service
Defendants argue that, based on the allegations of the Amended Complaint, the
“act . . . complained of” took place on September 25 and 26, 2006, and that consequently,
the statute of limitations had run by September 26, 2009, over three years before any of
the Dixons were served. Indeed, there is no dispute that the Dixons were served in
November 2012 for conduct that is alleged to have occurred in September 2006.
In opposition to Defendants’ motion to dismiss, Plaintiff first argues that because
the Court’s jurisdiction over the state law claims against the Dixons is based on
supplemental jurisdiction pursuant to 28 U.S.C. § 1367,4 the running of the limitations
period was “immediately suspended by operation of 28 U.S.C. § 1367(d)” and has yet to
expire. (Pl.’s Opp’n [Doc. # 236] at 8.)5
Section 1367(d) provides:
The period of limitations for any claim asserted under subsection (a), and
for any other claim in the same action that is voluntarily dismissed at the
same time as or after the dismissal of the claim under subsection (a), shall
be tolled while the claim is pending and for a period of 30 days after it is
dismissed unless State law provides for a longer tolling period.
28 U.S.C. § 1367(d). Defendants contend that this subsection cannot apply, because the
legal actions against the Dixons were never actually “commenced” prior to November
28 U.S.C. § 1367(a) provides, in pertinent part:
Except as provided in subsections (b) and (c) . . . , in any civil action of
which the district courts have original jurisdiction, the district courts shall
have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of
the same case or controversy under Article III of the United States
Plaintiff also seems to argue that because his initial complaint against the Dixons
included federal claims, those federal claims against the Dixons were “timely
commenced.” However the Amended Complaint contains no federal claims asserted
against the Dixons.
2012, i.e., the Dixons were only served well after the limitations period had run, and
therefore the statute of limitations could not have been tolled as to the state tort claims
against them. See Pagan v. Gonzalez, 113 Conn. App. 135, 139 (2009) (“Legal actions in
Connecticut are commenced by service of process.”).
The purpose of the tolling provision of § 1367(d) is to “prevent the limitations
period on such supplemental claims from expiring while the plaintiff was fruitlessly
pursuing them in federal court,” Jinks v. Richland Cnty., S.C., 538 U.S. 456, 459, 123 S. Ct.
1667, 1669 (2003), and “occurs in the context of a statute that specifically contemplates
only a few grounds for dismissal.” Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 545–
46 (2002); 6 see also Centaur Classic Convertible Arbitrage Fund Ltd. v. Countrywide Fin.
Corp., 878 F. Supp. 2d 1009, 1019 (C.D. Cal. 2011); Parrish v. HBO & Co., 85 F. Supp. 2d
792, 795 (S.D. Ohio 1999) (“[T]he Court disagrees that § 1367(d) operates when the
supplemental claim is refiled in federal court, as opposed to state court, and when it is
voluntarily dismissed, pursuant to Fed. R. Civ. P. 41(a), as opposed to having been
dismissed by the court, pursuant to § 1367(c).”) Here, the Court has not dismissed any
state law claims pursuant to § 1367(a), (b) or (c), and thus, the § 1367(d) savings
provision is inapplicable to Mr. Oliphant’s state law claims.
In Raygor, the Supreme Court listed the following “few grounds for dismissal” as
contemplated by § 1367(d):
The requirements of § 1367(a) make clear that a claim will be subject to
dismissal if it fails to “form part of the same case or controversy” as a claim
within the district court’s original jurisdiction. Likewise, § 1367(b) entails
that certain claims will be subject to dismissal if exercising jurisdiction
over them would be “inconsistent” with 28 U.S.C. § 1332 . . . . Finally,
§ 1367(c) . . . lists four specific situations in which a district court may
decline to exercise supplemental jurisdiction over a particular claim.
534 U.S. 533, 545 (2002).
Plaintiff’s second argument, that he was “relieved of the burden to serve the
Dixons” because of his in forma pauperis status (Def.’s Opp’n at 9), is also without merit.
As discussed supra, the Court initially but erroneously granted Mr. Oliphant’s motion to
proceed IFP [Doc. # 3] in June 2009, but vacated this order in January 2010, once it came
“to the Court’s attention that Mr. Oliphant has had at least four appeals dismissed by the
Second Circuit as lacking any arguable basis either in law or fact.” (See Order Vacating
Order on Motion for Leave to Proceed In Forma Pauperis [Doc. # 14] at 1.)7 Thus
Plaintiff may not and never should have been allowed to enjoy the benefits of IFP status,
such as U.S. Marshal service of process. See 28 U.S.C. § 1915(d) (For a plaintiff
proceeding IFP, “[t]he officers of the court shall issue and serve all process. . . .”).
Plaintiff relies on Pendleton v. Goord, a recent case from the Eastern District of
New York which held that in a circumstance where “the delays in issuing the summons
were due to the plaintiff's pro se and IFP status, the Court concludes that plaintiff’s § 1983
claims are timely.” 849 F. Supp. 2d 324, 330 (E.D.N.Y. 2012) (emphasis added) (citing
The Court’s January 2010 Order vacating Mr. Oliphant’s IFP status relied on 28
U.S.C. § 1915(g), which provides:
In no event shall a prisoner bring a civil action or appeal a judgment in a
civil action or proceeding under this section if the prisoner has, on 3 or
more prior occasions, while incarcerated or detained in any facility,
brought an action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or fails to state a
claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.
The Court reasoned, “[b]ecause four appeals Mr. Oliphant brought while incarcerated
have been dismissed as frivolous, he may not bring the present action without payment of
the filing fee absent allegations of “imminent danger of serious physical injury,”
allegations that the Court concluded were not present in his complaint. (Order Vacating
IFP Status at 2.)
Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (“In forma pauperis plaintiffs must
rely on the district court and the U.S. Marshals Service to effect service of process
according to 28 U.S.C. § 1915.”); Paulk v. Dep’t of Air Force, Chanute Air Force Base, 830
F.2d 79, 83 (7th Cir.1987)); see also Urrutia v. Harrisburg County Police Dep’t, 91 F.3d
451, 453 (3d Cir.1996) ( “An in forma pauperis plaintiff has no control over the amount
of time the district court takes to make the § 1915(d) ruling.”). Pendleton’s federal claims
had been timely commenced, but not timely served; here, Plaintiff’s state law action was
never timely commenced because it was required to be served within the three-year
period. Further, the cases relied on by Plaintiff each involved plaintiffs whose IFP status
was never revoked as inappropriately granted.8
Even though “an IFP plaintiff should not be punished for any delay in the issuance
of process if he filed the complaint in a timely manner, with a request for leave to proceed
IFP,” Pendleton, 849 F. Supp. 2d at 330, Plaintiff did not qualify as an IFP plaintiff and his
delay of more than six years to serve the Dixons should not be attributed to the Court’s
initial grant of IFP status. Indeed, when Plaintiff filed his lawsuit in June 2009, there were
only four months left on the statute of limitations for his state law claims, and had
Plaintiff been forthcoming with the Court from the outset about his history of lawsuits
(see Order Vacating IFP Status at 1 (listing four other federal cases with Mr. Oliphant as
plaintiff where the appeals were dismissed by the Second Circuit “as lacking any arguable
In Pendleton, for example, the statute of limitations ran during the time the
Court was considering Plaintiff’s motion to proceed in forma pauperis. In Robinson v.
Clipse, the Fourth Circuit concluded that “the period of time before the district court
authorized service by the Marshals Service does not count against Robinson for purposes
of determining the limitation period.” 602 F.3d at 608.
basis either in law or fact”)), his IFP application would have been denied from the start.9
Thus, Plaintiff was not entitled to rely on the Court to effect service on the state law
defendants in this action and bore responsibility for insuring that they were timely served
in order to commence his action against them, notwithstanding his claim that the delays
in serving the Dixons “were completely beyond his control” (Pl.’s Opp’n at 11).
“Statutes of limitation . . . in their conclusive effects are designed to promote
justice by preventing surprises through the revival of claims that have been allowed to
slumber until evidence has been lost, memories have faded, and witnesses have
disappeared.” Order of R.R. Telegraphers v. Ry. Express Agency, 321 U.S. 342, 348–49
(1944). It is clear that the state law claims against the Dixon Defendants were “allowed to
slumber” well past the three–year limitations period defined by Conn. Gen. Stat. § 52-577.
“The theory is that even if one has a just claim it is unjust not to put the adversary on
notice to defend within the period of limitation and that the right to be free of stale claims
in time comes to prevail over the right to prosecute them.” Id. The Court finds that the
Dixons’ right to be free from stale claims should prevail over Plaintiff’s belated effort to
prosecute Counts Five and Six against them. Accordingly, the Court grants the Dixons’
motion to dismiss.
Mr. Oliphant’s statement that “to the best of [his] knowledge,” he had not filed
any other lawsuits in the ten years preceding the filing of his June 1, 2009 Complaint is
unfounded, as a search of Mr. Oliphant’s litigation history on the District’s docket shows
that Mr. Oliphant had indeed filed four prior civil rights actions within ten years of
commencing this case. See Oliphant v. Hollembaek et al., No. 3:04cv523(SRU); Oliphant et
al. v. Armstrong, et al., No. 3:02cv947(PCD); Oliphant et al. v. Wezner et al.,
3:99cv1894(AWT); Oliphant v. Toarkz, et al., 3:99cv1895(DJS).
For the reasons discussed above, Defendants’ motion [Doc. # 231] to dismiss is
GRANTED. The Dixon defendants—Michael, Anthony, Timothy, and Rhonda Dixon—
are dismissed from the case and the Clerk is directed to remove them from the case
This case is now ready for trial, and the parties shall file their Joint Trial Memo by
July 8, 2013.
IT IS SO ORDERED.
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 4th day of June, 2013.
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