Bell v. Rikers Island

Filing 3

MEMORANDUM AND ORDER: On 10/27/2011, 10/28/2011 and 11/1/2011, respectively, pro se plaintiff Eric Bell ("plaintiff") filed these three actions pursuant to 42 U.S.C. § 1983, alleging constitutional violations by defendan ts during his 9/17/2005 arrest and his terms of imprisonment in 2004 and 2006. Plaintiff seeks damages. Plaintiff's 2 requests to proceed in forma pauperis are granted pursuant to 28 U.S.C. § 1915 solely for the purpose of this Order. Plaintiff is directed to show cause within 30 days of this Order why all of these three actions should not be dismissed as time-barred by the three-year statute of limitations applicable to Section 1983 actions. The Court has attached to this Order an affirmation form for plaintiff's use. No summons shall issue at this time and all further proceedings shall be stayed for 30 days for plaintiff to comply with this Order. If plaintiff fails to comply with this Order within the time allowed or show good cause why he cannot comply, the three Complaints will be dismissed as time-barred and judgment shall enter. The Court certifies pursuant to 28 U.S.C. § 1915(a) (3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for purpose of an appeal. SO ORDERED by Judge Kiyo A. Matsumoto, on 11/28/2011. C/mailed. (Latka-Mucha, Wieslawa)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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MEMORANDUM
AND ORDER

ERIC JASON BELL,
Plaintiff,
-against-

11-CV-05354
(KAM) (ALC)

OFFICER MORGAN,
Defendant.
X

ERIC BELL,
11-CV-5356
(KAM) (ALC)

Plaintiff,
-againstRIKERS ISLAND,
Defendant.
X

ERIC BELL,
11-CV-5431
(KAM) (ALC)

Plaintiff,
-againstRIKERS ISLAND CORRECTIONAL FACILITY,
Defendant.

--------------------------------------X
MATSUMOTO, United States District Judge:
On October 27, October 28, and November 1, 2011,
respectively, pro se plaintiff Eric Bell (Uplaintiff") filed
these three actions pursuant to 42 U.S.C.

§

1983,1 alleging

IPlaintiff also cites 42 U.S.C. § 2000(e) in his Complaints.
presumes that this is an attempt by plaintiff to invoke Title
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 as a
claims. Because plaintiff makes no allegations of employment

1

The court
VII of the
basis for his
discrimination

constitutional violations by defendants during his September 17,
2005 arrest and his terms of imprisonment in 2004 and 2006.
Plaintiff seeks damages.

Plaintiff's requests to proceed in

forma pauperis are granted pursuant to 28 U.S.C. § 1915 solely

for the purpose of this Order.

As set forth below, plaintiff is

directed to show cause within thirty (30) days of this Order why
these three actions should not be dismissed as time-barred.
BACKGROUND

In Bell v. Morgan, 11-CV-5354, plaintiff alleges that
after his arrest on September 17, 2005 for "setting [his]
mother['s] house on fire," he was "chained to the toilet pole
like a dog" and assaulted by Officer Morgan in a holding cell at
Kings County Criminal Court at 120 Schermerhorn Street.

In Bell

v. Rikers Island, 11-CV-5356, plaintiff alleges that in 2006

while he was incarcerated at Rikers Island, he was assaulted and
his thumb was broken.

Plaintiff was treated for the injury, but

alleges that his physical therapy was terminated prematurely.
In Bell v. Rikers Island Correctional Facility, 11-CV-5431,
plaintiff alleges that in 2004 while he was incarcerated at
Rikers Island, a "dep[uty]" correction officer grabbed
plaintiff's hair and pushed his head to the wall, causing the
skin on his forehead to break.
in any of his Complaints and he does not allege that he was employed by any
of the named defendants, he has not stated a claim under Title VII.
28
U.S.C.

§

1915 (e) (2) (B) (ii).

2

STANDARD OF REVIEW

Pursuant to 28 U.S.C.

§

1915 (e) (2) (B), a district

court shall dismiss an in forma pauperis action where it is
satisfied that the action is

~(i)

frivolous or malicious;

(ii)

fails to state a claim on which relief may be granted; or (iii)
seeks monetary relief against a defendant who is immune from
such relief."
At the pleadings stage of a proceeding, the court must
assume the truth of

~all

well-pleaded nonconclusory factual

allegations in the complaint."

Kiobel v. Royal Dutch Petroleum

Co., 621 F.3d 111, 124 (2d Cir. 2010)
129 S. Ct. 1937, 1949-59 (2009)).

(citing Ashcroft v. Iqbal,

To survive dismissal,

however, a complaint must plead sufficient facts to
claim to relief that is plausible on its face."
v. Twombly, 550 U.S. 544, 570 (2007).

~A

~state

a

Bell Atl. Corp.

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."
Iqbal, 129 S. Ct. 1937, 1949 (2009)

Ashcroft v.

( citation omitted) .

"It is well established that the submissions of a pro
se litigant must be construed liberally and interpreted 'to
raise the strongest arguments that they suggest.'"

Triestman v.

Fed. Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006)

3

(per

curiam)

(quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.

2006)).

This is especially true when the plaintiff alleges

civil rights violations.

See Sealed Plaintiff v. Sealed

Defendant #1, 537 F.3d 185, 191 (2d Cir. 2008); McEachin v.
McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).

Thus, a pro se

complaint should not be dismissed without permitting the pro se
plaintiff leave to amend "at least once when a liberal reading
of the complaint gives any indication that a valid claim might
be stated."
Cir. 1999)

Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795

(per curiam)

(2d

(citation and internal quotation marks

omitted) .
DISCUSSION

From the face of plaintiff's Complaints, it appears
that all three of his actions are barred by the statute of
limitations.

The statute of limitations for a Section 1983

claim arising in New York is three years.
U.S. 235, 251 (1989)

Owens v. Okure, 488

(holding that New York's three-year statute

of limitations for general personal injury actions is applicable
to Section 1983 actions filed in federal courts in New York);
Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004).

"The statute of limitations for a Section 1983 claim begins to
run 'when the plaintiff knows or has reason to know of the
harm. '"

Harper v. Ci ty of New York,

4

424 F. App' X 36, 39 (2d

Cir. 2011)

(quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d

Cir. 1994)).

The doctrine of equitable tolling, however,

permits a court, "under compelling circumstances,

[to] make

narrow exceptions to the statute of limitations in order 'to
prevent inequity.'11
(2d cir. 2003)

In re U.S. Lines, Inc.,

(citation omitted).

318 F.3d 432, 436

Typically, the statute of

limitations is equitably tolled when a defendant fraudulently
conceals from a plaintiff the fact that the plaintiff has a
cause of action, or when the plaintiff is induced by the
defendant to forego a lawsuit until the statute of limitations
has expired.
83

See Pearl v. City of Long Beach, 296 F.3d 76, 82-

(2d Cir. 2002)

(discussing the New York state courts'

application of equitable estoppel and the federal courts' use of
equitable tolling and equitable estoppel) .
The events giving rise to all of plaintiff's
Complaints occurred more than three years ago.

Specifically,

plaintiff's allegations stem from incidents that occurred in
2004, 2005, and 2006, respectively, and his actions were
commenced in 2011, respectively seven, six, and five years after
the alleged incidents, and four, three, and two years after the
three-year statute of limitations expired.

Because plaintiff

has alleged no basis for equitable tolling to apply, his actions
appear to be time-barred.

Accordingly, plaintiff is directed to

5

show cause within thirty (30) days of the date of this Order why
all of these three actions should not be dismissed as timebarred.

See Abbas v. Dixon, 480 F.3d 636, 641-42

(2d Cir.

2007) .
CONCLUSION

Plaintiff is directed to show cause within thirty (30)
days of this Order why all of these three actions should not be
dismissed as time-barred by the three-year statute of
limitations applicable to Section 1983 actions.

The court has

attached to this Order an affirmation form for plaintiff's use.
No summons shall issue at this time and all further proceedings
shall be stayed for thirty (30) days for plaintiff to comply
with this Order.

If plaintiff fails to comply with this Order

within the time allowed or show good cause why he cannot comply,
the three Complaints will be dismissed as time-barred and
judgment shall enter.

6

The court certifies pursuant to 28 U.S.C. § 1915(a) (3)
that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is denied for purpose of
an appeal.
(1962).

Coppedge v. United States, 369 U.S. 438, 444-45

The Clerk of Court is respectfully requested to serve

plaintiff at his last known address or record and not service on
the docket of each of these three actions no later than November
30, 2011.

SO ORDERED.
Dated:

Brooklyn, New York
November 28, 2011

-

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/S/

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.

Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

PLAINTIFF'S
AFFIRMATION

ERIC JASON BELL,
Plaintiff,
-against-

ll-CV-05354
(KAM) (ALC)

OFFICER MORGAN,
Defendant.
X

ERIC BELL,
ll-CV-5356
(KAM) (ALC)

Plaintiff,
-againstRIKERS ISLAND,
Defendant.
X

ERIC BELL,
Plaintiff,

ll-CV-5431
(KAM) (ALC)

-againstRIKERS ISLAND CORRECTION FACILITY,
Defendant.
X

STATE OF NEW YORK

}
} ss:

COUNTY OF

}

I, ERIC JASON BELL, make the following affirmation under
the penalties of perjury:

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1.

I am the plaintiff in these actions and I respectfully

submit this affirmation in response to the Court's order dated
November 28, 2011.

The instant action should not be time-barred

by the three-year statute of limitations applicable to 42 U.S.C.
§ 1983 actions because

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[YOU MAY ATTACH ADDITIONAL PAGES, IF NECESSARY]
2.

In view of the foregoing, it is respectfully submitted that

the instant petition should be permitted to proceed.
Dated:
Signature
Address

City, State & ZIP

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