Sykes v. Seasons Pizza et al

Filing 53

REPORT AND RECOMMENDATIONS- granting 24 MOTION to Dismiss, denying as moot 44 MOTION to Appoint Counsel, granting 41 MOTION to Dismiss. Please note that when filing Objections pursuant to Federal Rule of Civil Procedure 72(b)(2), brief ing consists solely of the Objections (no longer than ten (10) pages) and the Response to the Objections (no longer than ten (10) pages). No further briefing shall be permitted with respect to objections without leave of the Court. Objections to R&R due by 2/23/2015. Signed by Judge Sherry R. Fallon on 2/4/2015. (lih)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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NIGEL C. SYKES,
Plaintiff,
v.
SEASONS PIZZA, et al.,
Defendants.

Civil Action No. 13-1740 SLR-SRF

REPORT AND RECOMMENDATION
I.

INTRODUCTION
Presently before the court in this action alleging assault and excessive force claims under

42 U.S.C. § 1983 are the following motions: (1) a motion to dismiss for failure to state a claim
filed by Officers Don Maiorano and Stephen Johnson (together, the "Officer defendants"), and
the Town of Newport (D.I. 24); (2) a motion to dismiss for failure to state a claim filed by
defendants Adbeikader Bedhief, Mauricio Carrera, Misail Madariga, John McGidden, Taofiq
Raha, and Seasons Pizza (collectively, the "Seasons Pizza defendants") (D.I. 41); and (3) a
motion to appoint counsel filed by plaintiff Nigel C. Sykes ("Sykes" or "plaintiff') (D.I. 44). For
the following reasons, I recommend that the court (1) grant the motion to dismiss filed by the
Officer defendants; (2) grant the Seasons Pizza defendants' motion to dismiss; and (3) deny
plaintiff's motion to appoint counsel as moot.

I.

BACKGROUND
On November 30, 2010, plaintiff committed an armed robbery at the Seasons Pizza

located in Stanton, Delaware. 1 (D .I. 17 at 1) Plaintiff alleges that he entered the restaurant
through the rear door and displayed a revolver hand gun when he encountered delivery driver
Misail Madariga. (Id) Defendant Madariga handed plaintiff $140.00 and two delivery receipts.
(Id) As plaintiff was making his way to the front of the restaurant, he was grabbed from behind

by defendant Adbeikader Bedhief. (Id) A struggle ensued, and the Seasons Pizza defendants
gained control of plaintiffs hand gun. (Id) After obtaining control of the gun, the Seasons
Pizza defendants began kicking, punching, and pouring hot soup on plaintiff, rendering plaintiff
unconscious. (Id)
Officers from the Newport Police Department arrived at the scene to find plaintiff
unconscious on the floor. (Id) When plaintiff regained consciousness, he found that his hands
had been handcuffed behind his back, and he was tasered three times while handcuffed. (Id. at 12) As the police officers escorted plaintiff from the restaurant to the police cruiser, officer
Stephen Johnson punched plaintiff in the stomach twice and slammed plaintiffs head against the
trunk of the police cruiser. (Id)
Throughout the course of his arrest, plaintiff requested medical attention from the
paramedics at the scene, but his requests were repeatedly denied. (Id) Plaintiff was taken to the
police barracks in Bear, Delaware, where he was detained for approximately eight hours before
being taken to Christiana Hospital to receive medical treatment. (Id) Plaintiff claims that he

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At this early stage of the proceedings, the court must accept as true all facts alleged in the
amended complaint, and draw all reasonable inferences in favor of plaintiff. See Umland v.
Planco Fin. Servs., 542 F.3d 59, 64 (3d Cir. 2008). Consequently, the following background
information is drawn from plaintiffs amended complaint filed on February 18, 2014, and does
not constitute findings of fact. (D.I. 17)
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continues to suffer bruises, headaches, contusions, and bums from the encounter. (Id) Plaintiff
emphasizes that he did not resist arrest at any point during the course of these events. (Id)
Plaintiff, proceeding prose, filed an action on February 17, 2011 (the "2011 action"),
asserting causes of action for civil rights violations under 42 U.S.C. § 1983 and for assault
against the Delaware State Police and Seasons Pizza, and seeking to recover damages for injuries
he sustained during the course of the armed robbery on November 30, 2010. (C.A. No. 11-147SLR, D.I. 3) On May 9, 2011, the court issued a memorandum and order dismissing the
complaint as frivolous, but granting plaintiff leave to amend the complaint within thirty days.
(Id at D.I. 7) On June 2, 2011, Plaintiff filed an amended complaint against the Delaware State

Police, but did not include claims against Seasons Pizza. (Id at D.I. 8)
On June 17, 2011, the court entered an order requiring the Delaware State Police to
identify the police officers involved in the November 30, 2010 occurrence within forty-five days
after service of the complaint. (Id at D.I. 9) On October 25, 2011, the court issued an order
dismissing the case without prejudice because plaintiff failed to complete service on the
defendants within 120 days as required by Federal Rule of Civil Procedure 4(m). (Id at D.I. 10)
Plaintiff subsequently filed a motion for reconsideration, which was granted, giving plaintiff an
additional thirty days to complete service. (Id at D.I. 12; D.I. 13) However, plaintiff failed to
serve the defendants within the specified time period, and on January 18, 2012, the court again
dismissed plaintiff's case without prejudice pursuant to Rule 4(m). (Id at D.I. 16)
Plaintiff filed a second motion for reconsideration on July 10, 2012, which was denied.
(Id. at D.I. 18) On December 7, 2012, plaintiff filed a motion to reopen the case, which was also

denied. (Id at D.I. 22; D.I. 25) Plaintiff then moved for reconsideration of the court's order
denying his motion to reopen the case on March 26, 2013, which was denied. (Id. at D.I. 26; D.I.

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27) Plaintiff again moved for reconsideration of the court's order denying his motion to reopen
the case on May 6, 2013, and the court denied the motion, indicating that future motions for
reconsideration to reopen the case would be docketed but not considered. (D.I. 28; D.I. 29)
Plaintiff filed a new complaint commencing the instant action on July 5, 2013. The
pleading states the same assertions as in the original complaint. Plaintiff demands monetary
damages against the Delaware State Police Department and Seasons Pizza for the injuries he
sustained during the course of the armed robbery on November 30, 2010. (D.I. 1) Plaintiff
subsequently amended the complaint on December 2, 2013. (D.I. 12) On January 17, 2014, the
court dismissed the amended complaint for failure to state a claim and granted plaintiff thirty
days to file an amended complaint. (D.I. 13; D.I. 14)
Plaintiff filed an amended complaint on February 5, 2014, alleging claims for assault and
excessive force against the Seasons Pizza defendants, the Officer defendants, the Newport Police
Department, and Officer Mark Wahner. (D.I. 15) The court entered a deficiency notice the
following day because plaintiff failed to sign the amended pleading in violation of Federal Rule
of Civil Procedure 5 and D. Del. Local Rule 5.l(a). (D.I. 16) Plaintiff corrected the deficiency
and refiled the amended complaint on February 18, 2014. (D.I. 17) This court issued a
memorandum and order on April 23, 2014, dismissing all claims against Officer Mark Wahner
and the Newport Police Department as frivolous pursuant to 28 U.S.C. § 1915, but permitting
plaintiff to proceed with claims against the Seasons Pizza defendants and the Officer defendants.
(D.I. 18; D.I. 19) The Officer defendants and the Seasons Pizza defendants subsequently filed
their respective motions to dismiss pursuant to Rule 12(b)(6), alleging that plaintiffs claims are
barred by the statute of limitations. (D.I. 24; D.I. 41)

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II.

LEGALSTANDARD
Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6)
motion to dismiss, the court must accept as true all factual allegations in the complaint and view
them in the light most favorable to the plaintiff. Umland v. Planco Fin. Servs., 542 F .3d 59, 64
(3d Cir. 2008).
To state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a complaint
must contain a "short and plain statement of the claim showing that the pleader is entitled to
relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the
complaint must set forth sufficient factual matter, accepted as true, to "state a claim to relief that
is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A claim is facially plausible when the factual
allegations allow the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. Iqbal, 556 U.S. at 663; Twombly, 550 U.S. at 555-56.
Following the Supreme Court's decision in Iqbal, district courts have conducted a twopart analysis in determining the sufficiency of the claims. First, the court must separate the
factual and legal elements of the claim, accepting the complaint's well-pleaded facts as true and
disregarding the legal conclusions. Iqbal, 556 U.S. at 663. "While legal conclusions can provide
the complaint's framework, they must be supported by factual allegations." Id at 664. Second,
the court must determine whether the facts alleged in the complaint state a plausible claim by
conducting a context-specific inquiry that "draw[s] on [the court's] experience and common
sense." Id at 663-64; see also Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). As
the Supreme Court instructed in Iqbal, "where the well-pleaded facts do not permit the court to

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infer more than the mere possibility of misconduct, the complaint has alleged - but it has not
'show[n]' - 'that the pleader is entitled to relief."' Iqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P.
8(a)(2)).

III.

DISCUSSION
A. The Officer Defendants' Motion to Dismiss
In support of their motion to dismiss, the Officer defendants contend that plaintiffs

amended complaint is barred by the statute of limitations because the Officer defendants were
named for the first time in the amended complaint filed on February 5, 2014, more than three
years after the date of the armed robbery on November 30, 2010. (DJ. 24 at 5) The Officer
defendants argue that Rule 15(c)(l)'s relation back requirements are not met because plaintiff
has failed to show that the amended complaint was filed within 120 days of the original
complaint, that the failure to name the Officer defendants was a mistake, or that the Officer
defendants knew or should have known of the initial complaint in this case. (Id at 5-6)
In response, plaintiff contends that the amended complaint should survive under the
doctrine of equitable tolling, his lack of knowledge of the Officer defendants' identities should
be excused, and the court should apply Rule 15(c) to relate the amended complaint back to the
date of the original complaint in the 2011 action. (D.I. 35 at 1) Plaintiff alleges that the doctrine
of equitable tolling should apply because he was unable to identify the Officer defendants prior
to the exchange of discovery, and his criminal defense attorney failed to provide him with
information from his criminal case that would have enabled him to identify the Officer
defendants. (Id) Moreover, plaintiff alleges that the relation back doctrine set forth in Rule
15(c) should apply because the subject matter in the present matter is identical to the facts set
forth in the 2011 action and, but for a mistake regarding the identity of the Officer defendants,

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plaintiffs claims would have been filed within the statute of limitations. (Id at 2) Plaintiff
additionally suggests that a new action brought within one year after the original action was
dismissed for failure to perfect service of process is not barred by the statute of limitations
pursuant to 10 Del. C. § 8117. (Id at 3)
Delaware's two-year statute oflimitations for personal injury applies to cases arising
under 42 U.S.C. § 1983. IO Del. C. § 8119; see also McDowell v. Del. State Police, 88 F.3d 188,
191 (3d Cir. 1996); Daoud v. City of Wilmington, 894 F. Supp. 2d 544, 557 (D. Del. 2012)
("Section 1983 does not itself provide a statute of limitations; rather, the applicable statute of
limitations is the state's statute of limitations governing personal injury claims."). Such claims
accrue "as soon as a potential claimant either is aware, or should be aware, of the existence of
and source of an injury." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1386 (3d
Cir. 1994). In a claim for excessive force, it is apparent that the plaintiff knows or should have
known about the injury at the same time that it occurred. See Large v. County ofMontgomery,
307 F. App'x 606, 606 (3d Cir. 2009).
The statute oflimitations in the present case began to run on November 30, 2010, the date
of the incident. Plaintiffs complaint in the present action, which was filed on July 5, 2013, falls
outside the scope of the applicable statute of limitations. Plaintiff initiated the 2011 action on
February 17, 2011, well within the two year statute oflimitations period. (C.A. No. 11-147SLR, D.I. 1) However, the timeliness of the 2011 action has no bearing on the viability of the
instant action under the statute of limitations analysis because, as the Third Circuit has held, "[i]t
is a well recognized principle that a statute of limitations is not tolled by the filing of a complaint
subsequently dismissed without prejudice." Cardio-Med Assocs., Ltd v. Crozer-Chester Med

Ctr., 721F.2d68, 77 (3d Cir. 1983); see also Chiang v. US. Small Business Admin., 331 F.

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App'x 113, 116-17 (3d Cir. 2009) (holding that the district court did not abuse its discretion in
dismissing the action without prejudice and denying appellants' request for an extension of time
to perfect service where appellants offered no explanation for four year delay in perfecting
service); Tricome v. eBay, Inc., 2014 WL 5410206, at *2 (E.D. Pa. Oct. 23, 2014) (concluding
that the dismissal without prejudice of plaintiff's first lawsuit for failure to prosecute his claims
did not save his new lawsuit from being time-barred).
Under some limited circumstances, a claim may survive despite being filed after the
statute of limitations expires. However, neither the equitable tolling doctrine nor the principle of
relation back under Rule 15(c) applies to excuse the untimeliness of plaintiff's claims in the
present matter.
The federal equitable tolling doctrine provides a limited exception to the two-year statute
of limitations. The equitable tolling doctrine is used sparingly, and should be applied only to
actions in which the application of the state statute of limitations would frustrate federal policy.
Manuel v. Mears, 947 F. Supp. 2d 426, 430 n.3 (D. Del. 2013). To invoke the doctrine of
equitable tolling, a plaintiff must demonstrate that: (a) a defendant actively misled a plaintiff
with respect to his cause of action; (b) the plaintiff has been prevented from asserting his claim
as a result of other extraordinary circumstances; or (c) the plaintiff asserts his claims in a timely
manner but has done so in the wrong forum. See Dickens v. Taylor, 671 F. Supp. 2d 542, 547
(D. Del. 2009) (citing Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000)); Moody v. Kearney, 380
F. Supp. 2d 393, 397 (D. Del. 2005).
In the present matter, plaintiff does not allege that the Officer defendants actively misled
him, nor has plaintiff asserted his claims in the wrong forum. Therefore, the court must consider
whether extraordinary circumstances prevented plaintiff from asserting his claims in a timely

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manner. Plaintiff's claimed inability to identify the Officer defendants does not constitute an
extraordinary circumstance under the facts of the instant case. The record reflects that this court
ordered the Delaware State Police Department to provide plaintiff with the identities of the
Officer defendants within forty-five days of plaintiff's service of the complaint in the 2011
action. (C.A. No. 11-147, D.I. 9) The court also offered plaintiff additional time to perfect
service on the defendants in the 2011 action, but plaintiff failed to comply. (C.A. No. 11-147,
D.I. 13) As a result, plaintiff relinquished the opportunity to obtain the identities of the Officer
defendants from the Delaware State Police Department in the 2011 action.
Plaintiff also failed to present evidence documenting his efforts to obtain information
regarding the identities of the Officer defendants from the Office of the Federal Public Defender
prior to the expiration of the statute of limitations. The letter plaintiff attaches to his response to
the Seasons Pizza defendants' motion to dismiss only refers to plaintiff's efforts to obtain the
documents on August 16 and 17, 2014, after the statute oflimitations had already expired. (D.I.
48, Ex. A)
Having determined that the doctrine of equitable tolling does not apply to the facts of the
present case, the court must next conduct an analysis of whether the amended complaint relates
back to the date of the original complaint filed in the 2011 action pursuant to Rule 15(c). See

Jackson v. Phelps, C.A. No. 10-919-SLR, 2013 WL 6092168, at *3 (D. Del. Nov. 19, 2013).
Rule 15(c)(1) of the Federal Rules of Civil Procedure sets forth three requirements governing the
applicability of relation back: (a) the amendment asserts a claim that arose out of the conduct,
transaction, or occurrence set out in the initial pleading; (b) the newly named party received such
notice of the institution of the action within the period specified in Rule 4(m) (i.e., 120 days), so
that the party will not be prejudiced in maintaining a defense on the merits; and (c) the newly

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named party knew or should have known that the action would have been brought against him,
but for a mistake (or lack of knowledge) concerning the newly named party's
identity. See Johnson v. GEICO Cas. Co., 673 F. Supp. 2d 244, 248-49 (D. Del. 2009).
Relation back to the original complaint in the 2011 action would not save plaintiff's case
from dismissal because Rule 15(c) does not permit relation back to a complaint filed in a
separate civil action. 2 See US. ex rel. Malloy v. Telephonies Corp., 68 F. App'x 270, 273 (3d
Cir. 2003) ("pursuant to the plain language of the rule, the relation back theory applies to an
amendment of a pleading in the same civil action"); see also Petrucelli v. Bohringer &
Ratzinger, 46 F.3d 1298, 1304 n.6 (3d Cir. 1995) (holding that a district court's dismissal
without prejudice of an action for failure to perfect service of process constitutes a final order
barring the refiling of the complaint ifthe statute of limitations has expired). Nor does relation
back under Rule 15(c)(l) apply to the original complaint in the present civil action, which was
filed on July 5, 2013, months after the statute oflimitations expired. See Fed. R. Civ. P. 15(c)(l)
("An amended complaint relates back to the date of the original pleading ... ").
Plaintiff's citation to the Third Circuit's decision in Arthur v. Maersk, Inc., 434 F.3d 196,
208 (3d Cir. 2006), is inapposite because the original complaint was filed prior to the expiration
of the statute oflimitations. Arthur v. Maersk, Inc., 434 F.3d 196, 207 (3d Cir. 2006) (original
complaint filed in May 2002, and statute of limitations expired in December 2002). Plaintiff's

Although "[a] prose complainant ... must be held to less stringent standards than formal
pleadings drafted by lawyers," Ning Ye v. Holder, 644 F. Supp. 2d 112, 116 (D.D.C. 2009)
(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)), proceeding as a prose litigant does not
exempt a party from complying with the Federal Rules of Civil Procedure, Lewis v. Williams,
C.A. No. 05-013-GMS, 2010 WL 2640188, at *3 (D. Del. June 30, 2010). Both the United
States Supreme Court and the Third Circuit have consistently held that pro se plaintiffs must
adhere to the Federal Rules of Civil Procedure. See McNeil v. United States, 508 U.S. 106, 113
(1993) ("We have never suggested that procedural rules in ordinary civil litigation should be
interpreted so as to excuse the mistakes of those who proceed without counsel."); Ayres v.
Jacobs & Crumplar, P.A., 99 F.3d 565, 567, 570 (3d Cir. 1996).
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reliance on 10 Del. C. § 8117 for the proposition that an action filed within a year of a previous
action dismissed without prejudice may survive the expiration of the statute of limitations is also
misplaced. Section 8117 applies to persons "out of the State" at the time the cause of action
accrues. 10 Del. C. § 8117. Nothing in the record presently before the court suggests that any of
the defendants were outside of Delaware when plaintiffs causes of action accrued. For the
foregoing reasons, I recommend that the court grant the Officer defendants' motion to dismiss.

B.

The Seasons Pizza Defendants' Motion to Dismiss

By way of their motion to dismiss, the Seasons Pizza defendants contend that plaintiffs
amended complaint is barred by the statute oflimitations. (D.I. 42 at 5-7) Specifically, the
Seasons Pizza defendants allege that there is no basis to apply the equitable tolling doctrine,
particularly in light of plaintiffs lack of diligence in pursuing his claims. (Id. at 5-6) Moreover,
the Seasons Pizza defendants argue that plaintiffs amended complaint does not meet the relation
back requirements set forth in Rule 15(c). Plaintiff responds that he was unable to file the
complaint in a timely manner because he could not access the files from his criminal case. (D.I.
48)
I recommend that the court grant the Seasons Pizza defendants' motion to dismiss

because plaintiff failed to initiate the present action within the applicable statute of limitations.
For the reasons previously stated in connection with the Officer defendants' motion to dismiss,
plaintiff has failed to show that extraordinary circumstances prevented him from filing the
complaint in a timely manner and, as a result, the doctrine of equitable tolling does not apply.
Moreover, the relation back provision of Rule 15(c) does not apply because the original
complaint in the present matter was filed after the expiration of the statute of limitations, and the
original complaint in the 2011 action cannot save plaintiffs assault claim against the Seasons

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Pizza defendants because Rule 15(c) applies only to pleadings filed within the same civil action.

See US. ex rel. Malloy v. Telephonies Corp., 68 F. App'x 270, 273 (3d Cir. 2003)
The exhibit plaintiff attaches to his answering brief indicates that the Office of the
Federal Public Defender sent plaintiff documents from his criminal case files on October 21,
2013 and December 23, 2013. (D.I. 48, Ex. A) The letter indicates that plaintiff submitted
letters requesting those documents on August 16 and August 17, 2014, but the requested files
had already been sent. (Id.) Plaintiff has not provided any evidence indicating that the timing of
his initial request for documents from his criminal proceeding predated the expiration of the
statute oflimitations. Additionally, plaintiffs criminal file was publicly available at the New
Castle County Courthouse and contained documents listing the names of the Seasons Pizza
defendants. (D.I. 49, Ex. A at 8:7-9; Ex.Bat ii 17) Consequently, I recommend that the court
grant the Seasons Pizza defendants' motion to dismiss.
C. Plaintiff's Motion to Appoint Counsel

In light of the foregoing recommendations to dismiss plaintiffs amended complaint, I
recommend that the court deny plaintiffs motion to appoint counsel as moot.
IV.

CONCLUSION
For the foregoing reasons, I recommend that the court: (1) grant the Officer defendants'

motion to dismiss with prejudice; (2) grant the Seasons Pizza defendants' motion to dismiss with
prejudice; and (3) deny plaintiffs motion to appoint counsel as moot.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(b)(1 ), and D. Del. LR 72.1. The parties may serve and file specific written objections
within fourteen (14) days after being served with a copy of this Report and Recommendation.
Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to ten (10)

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pages each. The failure of a party to object to legal conclusions may result in the loss of the right
to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App 'x 924, 925 n.1
(3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties are directed to the court's Standing Order For Objections Filed Under Fed. R.
Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website,
http://www.ded.uscourts.gov.

Dated: February~, 2015

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