Fowler v. The City of New York et al
Filing
36
ORDER granting 25 Motion for Judgment on the Pleadings and denying 31 Motion for Extension of Time to Serve Defendants. For the reasons set forth in the attached Memorandum and Order, defendants' Rule 4(m) motion to dismiss claims against the individual defendants for failure to serve process is granted and all claims against the individual defendants are dismissed with prejudice. Defendants' Rule 12(c) motion for judgment on the pleadings against the City and DOC is also grant ed. Plaintiff's claims against the DOC are dismissed with prejudice, as is plaintiff's claim against the City based on a theory of respondeat superior. Plaintiff's claim against the City pursuant to 42 U.S.C. § 1983 for & quot;careless and reckless" hiring and retention is dismissed without prejudice. Plaintiff shall have until January 15, 2016 to file an amended complaint solely as to this claim. Plaintiff's motion for an extension of time to serve the individual defendants is denied as moot. Ordered by Judge Kiyo A. Matsumoto on 12/23/2015. (McNulty, John)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
JAMARR FOWLER,
MEMORANDUM AND ORDER
Plaintiff,
13-CV-2372(KAM)(RML)
-againstCITY OF NEW YORK, et al.,
Defendants.
-------------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Jamarr Fowler brings this action pursuant to
42 U.S.C. § 1983 against defendants the City of New York
(“City”), the New York City Department of Correction (“DOC”),
and seven New York City Department of Correction officers and
captains named in their individual and official capacities:
Correction Officer (“C.O.”) Baccortte, C.O. Smith, C.O. Harris,
C.O. Phillip, Correction Captain (“Captain”) Presley, Captain
Dunbar, and Captain Blassingame (collectively, the “individual
defendants”).
(See generally ECF No. 1, Complaint dated
4/18/2013 (“Compl.”).)
Plaintiff alleges violations of his
constitutional rights based on a series of physical assaults by
the individual defendants that he claims took place on April 21,
2010 and April 22, 2010 while he was an inmate on Rikers Island.
1
Defendants have moved:
(1) to dismiss all claims against the
individual defendants pursuant to Federal Rule of Civil
Procedure 4(m) for failure to timely serve process, and (2) for
judgment on the pleadings pursuant to Rule 12(c) for failure to
state a claim against the City and DOC.
Plaintiff, who is
represented by counsel, has separately moved for an extension of
time to complete service of process on the individual
defendants, which the City opposes.
Despite the very troubling allegations of the
Complaint, for the reasons that follow, plaintiff’s claims
against the individual defendants are dismissed pursuant to Rule
4(m) for failure to serve process, and defendants’ motion for
judgment on the pleadings against the City and DOC is granted.
Plaintiff’s motion for an extension of time to effect proper
service is denied as moot.
Background
The following facts are taken from the Complaint and
are assumed to be true for purposes of defendants’ motion for
judgment on the pleadings.
Island in April 2010.
Plaintiff was an inmate on Rikers
(Compl. ¶ 9.)
On April 21, 2010,
plaintiff was transferred by bus between two facilities located
on Rikers Island – from the North Infirmary Command (“NIC”) to
the George R. Vierno Center (“GRVC”).
2
(Id. ¶ 11.)
Correction
Officers Baccortte and Smith were assigned to transfer
plaintiff.
(Id. ¶ 12.)
After the bus reached the GRVC,
plaintiff alleges that Captain Dunbar boarded the bus, hit
plaintiff with a radio, and ordered Captain Smith to mace
plaintiff while he was handcuffed.
(Id. ¶¶ 13-15.)
Correction
Officer Baccortte then put plaintiff in a “choke hold” while
Captains Presley and Dunbar “assaulted” plaintiff.
17.)
(Id. ¶¶ 16-
According to plaintiff, someone pressed an emergency
response button during this incident, which caused additional,
unidentified correction officers to respond to the scene.
¶ 18.)
(Id.
The responding correction officers dragged plaintiff off
the bus and “joined in the assault” by kicking and punching
plaintiff.
(Id.)
After the incident, plaintiff was placed in a
cell at GRVC for 45 minutes, then taken by ambulance to the
hospital with “bruise[s] throughout his body.”
(Id. ¶¶ 20-21.)
The next day, April 22, 2010, plaintiff was released
from the hospital and brought back to the GRVC.
(Id. ¶ 22.)
Upon his return, plaintiff alleges that C.O. Harris verbally
threatened him and “used his cane to push [plaintiff] to the
floor.”
(Id. ¶ 24.)
While he was on the floor, C.O. Phillips,
“Corrections Captain Blassing” [sic] and a third, unidentified
“Corrections Captain” entered plaintiff’s cell, assaulted him,
and left him handcuffed in his cell.
3
(Id. ¶¶ 25-26.)
Plaintiff
alleges that “after some time had passed,” C.O. Phillips and
C.O. Harris returned to plaintiff’s cell and assaulted him
again.
(Id. ¶ 27.)
During this assault, plaintiff claims that
C.O. Phillips held down plaintiff while C.O. Harris “pulled down
[plaintiff’s] pants and then sodomize [sic] Jamarr Fowler with a
battery in his rectum.”
(Id. ¶ 28.)
Plaintiff alleges the
officers then left him in his cell “until the next shift of
officers came on,” at which point he was given medical attention
“where the doctor found a battery inside of Jamarr Fowler.”
(Id. ¶¶ 29-30.)
Based on the foregoing, plaintiff asserts a cause of
action for cruel and unusual punishment under 42 U.S.C. § 1983
against the individual defendants (Compl. ¶¶ 34-35), and against
the City and DOC under a theory of respondeat superior.
32.)
(Id. ¶
Although not entirely clear from the face of the
Complaint, plaintiff also appears to assert a § 1983 claim
against the City and DOC for the “careless and reckless” hiring,
retention, training, and supervision of the individual
defendants.
(Id. ¶¶ 38-40.)
Procedural History
Plaintiff commenced this action on April 18, 2013.
Upon filing the Complaint, plaintiff did not obtain signed and
sealed summonses from the Clerk of Court for service on each
4
defendant pursuant to Fed. R. Civ. P. 4(b).
(See ECF No. 1,
Complaint; see also Fed. R. Civ. P. 4(b) (“On or after filing
the complaint, the plaintiff may present a summons to the clerk
for signature and seal. If the summons is properly completed,
the clerk must sign, seal, and issue it to the plaintiff for
service on the defendant.”).)
The Clerk of Court accordingly
stamped “NO SUMMONS ISSUED” across the front of the civil cover
sheet attached to, and filed with, the Complaint.
1-1, Civil Cover Sheet.)
(See ECF No.
The docket sheet for this matter
reveals that no summons has issued for any defendant.
The City and DOC answered the Complaint on August 24,
2013.
(See ECF No. 6, Answer.) 1
Plaintiff and the City
The City and DOC answered the Complaint even though it appears that they,
like the individual defendants, were never properly served. In response to
the court’s 1/29/15 order, plaintiff’s counsel purported to file an affidavit
of “service” on the City. (See ECF No. 19, dated 1/30/2015, “SUMMONS
Returned Executed by Jamarr Fowler. The City of New York served on
4/18/2013”.) That document, ECF No. 19, is actually an affidavit of
“service” for the individual defendants (albeit an improper affidavit of
service because summonses were not served with the Complaint, as discussed
below). Thus, plaintiff’s counsel never filed an affidavit of service of
process for the City. Moreover, no summons was ever issued by the Clerk of
Court for the City or DOC, meaning plaintiff has not satisfied Rule 4(c)(1)’s
requirement that “[a] summons must be served with a copy of the complaint.”
Nevertheless, defendants do not raise insufficient service of process as
grounds for dismissal of the claims against the City and DOC. Even if the
City and DOC did raise insufficient service of process, they waived any
improper service objections by answering the Complaint and otherwise actively
participating in this case. See, e.g., Kidder, Peabody & Co., Inc. v. Maxus
Energy Corp., 925 F.2d 556, 562 (2d Cir. 1991) (finding defendant
“participated fully in the proceedings and therefore waived any objections to
lack of service of process”); Datskow v. Teledyne, Inc., 899 F.2d 1298, 1303
(2d Cir. 1990) (rejecting objections to improper service based upon
defendants’ participation in suit, including filing an answer, prior to
objecting to improper service).
1
5
proceeded with fact discovery for the next 16 months.
Proper
affidavits of service of process still do not appear on the
docket, the individual defendants have not answered the
Complaint, and defense counsel did not appear on their behalf.
On January 13, 2015, the City filed a letter
requesting the court’s permission to move to dismiss the case
based on, inter alia, plaintiff’s failure to serve the
individual defendants within 120 days of filing the Complaint,
as required by Rule 4(m). 2
(See ECF No. 11, Motion for Pre-
Motion Conference by the City.)
In a January 26, 2015 letter to
the court responding to defendants’ pre-motion conference
request, plaintiff’s counsel admitted that the individual
defendants were not served within Rule 4(m)’s 120-day time limit
because “I did not use a professional process server therefore,
the individual defendant’s [sic] were not served.” (See ECF No.
12, Plaintiff’s Letter Regarding Defendant’s Motion Request
dated 1/26/15.)
The January 26, 2015 letter from plaintiff’s
counsel further stated that “I discovered the error about one
(1) year ago and hired a professional process server to serve
the individual defendants.
As of 11 months ago they either
Although Rule 4(m) of the Federal Rules of Civil Procedure was amended,
effective December 1, 2015, to require service within 90 days of the filing
of the complaint, the court will apply the more generous 120-day time limit
in effect at the time the action was commenced and the instant motions were
fully submitted.
2
6
served them or completed due diligence affidavits.
will be completed shortly.”
The process
(Id.)
On January 29, 2015, following a pre-motion conference
to discuss the defendants’ anticipated motion to dismiss, the
court ordered plaintiff to file declarations of service and/or
due diligence for the individual defendants within one day.
(See Minute Entry dated 1/29/2015.)
The next day, January 30, 2015, plaintiff filed
affidavits of “service” for Captains Blassingame, Presley, and
Dunbar and affidavits of due diligence for C.O. Harris, C.O.
Smith, and C.O. Phillip.
(See ECF Nos. 13-18.) 3
Plaintiff’s
counsel titled the affidavits of service “SUMMONS Returned
Executed by Jamarr Fowler” when he filed the affidavits on the
docket.
(Id.)
However, consistent with plaintiff’s failure to
present summonses to the Clerk of Court for issuance to each
defendant, the affidavits of “service” show that the process
server did not actually deliver or mail a summons with the
Complaint to Captains Blassingame, Presley, or Dunbar.
(Id.)
Instead, the signed and sworn affidavits of “service” state that
on January 29, 2014, the process server delivered a “CIVIL COVER
SHEET AND JURY TRIAL DEMANDED” 4 at defendants’ usual place of
3 Plaintiff did not file an affidavit of service and/or due diligence for the
seventh individual defendant, C.O. Baccortte, on January 30, 2015.
4
“JURY TRIAL DEMANDED,” as used in the affidavits of service, presumably
7
business 5 and sent a copy of those documents to the same
addresses by first class mail.
(See ECF No. 13-15.)
Summonses
were not served; nor could they have been, given that summonses
were never issued by the Clerk of Court.
Similarly, the affidavits of due diligence for C.O.
Harris, C.O. Smith, and C.O. Phillip indicate that on January
24, 2014, the process server unsuccessfully attempted to serve
Officers Harris, Smith, and Phillip with a “CIVIL COVER SHEET
AND JURY TRIAL DEMANDED” (i.e., the civil cover sheet and
Complaint) at the New York City Department of Corrections
facility located at 75-20 Astoria Blvd, East Elmhurst, NY.
ECF Nos. 16-18.)
(See
The affidavits of due diligence state that
additional information, such as shield number or first name, was
necessary to serve Harris, Smith, and Phillip.
(Id.)
On March 13, 2015, plaintiff filed a letter to the
court stating that the court “ordered that the Plaintiff file
all affidavits of service/affidavits of due diligence regarding
the individual defendants by January 30, 2015.
complied.”
The Plaintiff
(ECF No. 20, Motion for Extension to File
refers to the Complaint filed in this action. The Complaint features the
phrase “JURY TRIAL DEMANDED” in capital letters on the upper right side of
the first page; it is not titled “Complaint.” (See ECF No. 1, Compl.)
5 The affidavits of service specify service for Captain Blassingame at the
Manhattan Detention Complex at 125 White Street, New York, NY, and for
Captains Presly and Dunbar at the GRVC at 09-09 Hazen Street on Rikers
Island. (See ECF Nos. 13-15.)
8
Response/Reply dated 3/13/15.)
In fact, plaintiff did not
comply with the court’s January 29, 2015 order because
plaintiff’s counsel did not file an affidavit of service or due
diligence for C.O. Baccortte and, more significantly, the
affidavits of “service” that plaintiff’s counsel did file reveal
that Captains Blassingame, Presley, and Dunbar were not served
with a summons as required by Federal Rule of Civil Procedure
4(c)(1).
On March 25, 2015, plaintiff filed affidavits of
“service” for two additional defendants, C.O. Harris and C.O.
Phillip.
(See ECF Nos. 21-22.)
Although plaintiff’s counsel
again filed the affidavits on the docket as “SUMMONS Returned
Executed,” the affidavits themselves, like the earlier
affidavits of “service” for Captains Blassingame, Presley, and
Dunbar, reflect that C.O. Harris and C.O. Phillip were only
served with a “JURY TRIAL DEMANDED, CIVIL COVER SHEET” (the
Complaint and civil cover sheet) and not served with summonses.
(Id.)
Plaintiff’s counsel also filed an affidavit of due
diligence for retired C.O. Baccorette (or Bacote) 6 on March 25,
2015, two months after the court’s order to do so.
(See ECF No.
23.)
6 The affidavit of due diligence states that the process server attempted to
serve “Correction Officer Fletcher Bacote” on February 11, 2015.
9
On March 27, 2015, defendants filed their motion to
dismiss the individual defendants for lack of service pursuant
to Rule 4(m) and motion for judgment on the pleadings as to
plaintiff’s claims against the City and DOC.
(ECF No. 25,
Motion for Judgment on the Pleadings (“Def. Mot.”).)
On the
same day, plaintiff filed a motion for an extension of time to
complete service of process on the individual defendants.
(ECF
No. 31, Motion for Extension of Time to File Affidavits of
Service (“Pl.’s Mot.”).)
Because plaintiff contends,
erroneously, that “[f]ive (5) of the six (6) individual
defendants have been served in this case” 7 he apparently seeks
leave to serve only one individual defendant, who is not
identified in plaintiff’s motion papers.
(See ECF No. 35, Reply
in Support of Motion for Extension of Time to File Affidavits of
Service (“Pl.’s Reply”) at 5.)
Discussion
The court will first address the insufficient service
of process issue because “[b]efore a federal court may exercise
jurisdiction over a defendant, the procedural requirement of
service of summons must be satisfied.”
Omni Capital Int’l, Inc.
v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987).
The court will
7 The court notes that the Complaint includes claims against seven individual
defendants.
10
then turn to the defendants’ Rule 12(c) arguments.
Plaintiff’s
motion for an extension of time to serve one unidentified
individual defendant will be addressed with the individual
defendants’ motion to dismiss for insufficient service of
process.
I.
Rule 4(m) Motion Against the Individual Defendants
Federal Rule of Civil Procedure 4(c)(1) requires that
“a summons must be served with a copy of the complaint.”
Service must be completed within 120 days of the filing of the
complaint.
Fed. R. Civ. P. 4(m).
The “plaintiff bears the
burden of proving adequate service.”
Burda Media, Inc. v.
Viertel, 417 F.3d 292, 298 (2d Cir. 2005) (citation omitted).
The plaintiff must, “through specific factual allegations and
any supporting materials, make a prima facia showing that
service was proper.”
Kwon v. Yun, No. 05-cv-1142, 2006 WL
416375, at *2 (S.D.N.Y. Feb. 21, 2006).
The court may “look to
matters outside the complaint to determine whether it has
jurisdiction.”
Darden v. DaimlerChrysler N. Am. Holding Corp.,
191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002).
Here, the record is clear that plaintiff has not
effectuated proper service of process at all, much less within
the 120-day period prescribed by Federal Rule of Civil Procedure
Rule 4(m).
As explained above, the docket reflects that
11
plaintiff did not present proposed summonses to, or obtain
summonses from, the Clerk of Court.
filed proof of proper service.
Plaintiff also has not
See Rule 4(l)(1) (“Unless
service is waived, proof of service must be made to the court.”)
More than two and a half years after the filing of the Complaint
on April 18, 2013, the docket shows that plaintiff’s counsel
still has not presented proposed summonses to the Clerk and,
accordingly, no summonses have issued.
Plaintiff’s failed
attempts at service did not even begin until plaintiff’s counsel
hired a professional process server in January 2014, more than
six months after the Complaint was filed and well past Rule
4(m)’s 120-day service window.
When a defendant has not been timely served, Rule 4(m)
“governs both (1) the dismissal of actions for untimely service
of process and (2) extensions of the time in which service may
be effected.”
Cir. 2007).
Zapata v. City of New York, 502 F.3d 192, 195 (2d
Under Rule 4(m),
[i]f a defendant is not served within 120 days after
the complaint is filed, the court – on motion or on
its own after notice to the plaintiff – must dismiss
the action without prejudice against that defendant or
order that service be made within a specified time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m).
In determining whether a plaintiff has
shown “good cause” for failure to effectuate timely service,
12
courts consider (1) the reasonableness and diligence of
plaintiff’s efforts to serve process, and (2) the prejudice to
the defendants from the delay.
See Micciche v. Kemper Nat’l
Servs., 560 F. Supp. 2d 204, 209 (E.D.N.Y. 2008).
“Good cause
is generally found only in exceptional circumstances where the
plaintiff’s failure to serve process in a timely manner was the
result of circumstances beyond [his] control.”
Beauvoir v. U.S.
Secret Serv., 234 F.R.D. 55, 56 (E.D.N.Y. 2006) (quoting Eastern
Refractories Co., Inc. v. Forty Eight Insulations, Inc., 187
F.R.D. 503, 505 (S.D.N.Y. 1999) (internal quotation marks
omitted)).
Plaintiff has failed to articulate any exceptional
circumstances warranting a finding of “good cause” for failure
to timely serve the individual defendants.
The only
justification plaintiff offers – that plaintiff’s counsel did
not use a professional process server until after the Rule 4(m)
deadline had passed – is neither exceptional nor a circumstance
beyond his control.
See Abreau v. City of New York, 657 F.
Supp. 2d 357, 362 (E.D.N.Y. 2009) (“Counsel’s apparent
inadvertence or neglect cannot constitute good cause for an
extension and does not excuse the failure of service here.”).
Even after he enlisted the help of a professional process
server, plaintiff’s counsel did not arrange for proper service
13
(i.e., service of a summons with the Complaint).
“A mistaken
belief that service was proper is not good cause under Rule
4(m).”
Yaxin Jing v. Angel Tips, Inc., No. 11-cv-5073, 2013 WL
950585, at *3 (E.D.N.Y Mar. 11, 2013).
Where, as here, a plaintiff fails to make a showing of
good cause, district courts still have discretion to grant an
extension of time for service.
See Zapata, 502 F.3d at 196; see
also Deluca v. AccessIT Grp., Inc., 695 F. Supp. 2d 54, 67
(S.D.N.Y. 2010) (“A Court has discretion to grant an extension
to serve process even absent a showing of good cause.”).
In
determining whether to exercise such discretion, courts consider
the following factors:
“(1) whether statutes of limitations
would bar the refiling of this action; (2) whether the defendant
had actual notice of the claims asserted in the complaint; (3)
whether the defendant attempted to conceal the defect in
service; (4) whether the defendant would be prejudiced by
extending the time for service.”
Demott v. Bacilious, No. 11-
cv-6966, 2012 WL 601074, at *8 (S.D.N.Y. 2008); see also Carroll
v. Certified Moving & Storage, Co., No. 04-cv-4446, 2005 WL
1711184, at *2 (E.D.N.Y. July 19, 2005).
First, the parties do not dispute that the three-year
statute of limitations applicable to § 1983 actions under New
York law, see Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d
14
Cir. 2002), would bar the refiling of claims against the
individual defendants.
Plaintiff alleges his constitutional
rights were violated on April 21 and 22, 2010.
He filed the
Complaint on April 18, 2013, four days before the statute of
limitations expired.
Thereafter, the four days remaining on the
limitations period were tolled during the 120-day period for
service under Rule 4(m).
See Ocasio v. Fashion Inst. Of Tech.,
9 Fed. Appx. 66, 68 (2d Cir. 2001); Frasca v. United States, 921
F.2d 450, 453 (2d Cir. 1990).
After the 120-day tolling period
expired on August 16, 2013, the limitations period started again
and expired on August 20, 2013.
Therefore, although dismissal
of claims against the individual defendants formally would be
without prejudice, it effectively would result in dismissal with
prejudice because any newly filed claims would be time-barred.
The Second Circuit has directed that:
where, as here, good cause is lacking, but the dismissal
without prejudice in combination with the statute of
limitations would result in dismissal with prejudice, we
will not find an abuse of discretion in the procedure used
by the district court, so long as there are sufficient
indications on the record that the district court weighed
the impact that a dismissal or extension would have on the
parties.
Zapata, 502 F.3d at 197.
Accordingly, the court will weigh the
significant consequences of dismissing plaintiff’s claims
pursuant to Rule 4(m) against plaintiff’s counsel’s repeated and
ongoing disregard of the procedural requirements for service.
15
Two factually similar cases cited by defendants, Zapata and
Harper v. City of New York, 424 Fed. App’x 36 (2d Cir. 2011),
are instructive. (See ECF No. 30, Defendant’s Opposition to
Plaintiff’s Motion for Extension of Time to Complete Service, at
4-5.)
In Zapata, plaintiff claimed to have been assaulted by
a police officer and brought § 1983 claims against the City and
the officer.
502 F.3d at 193-94.
The plaintiff failed to serve
the officer until four days after the expiration of the 120-day
period for service under Rule 4(m).
Id. at 194.
The Second
Circuit affirmed the district court’s decision to dismiss
plaintiff’s claims where the statute of limitations had run but
plaintiff “had made no effort to effect service within the
service period, neglected to ask for an extension within a
reasonable time, and . . . advanced no cognizable excuse for the
delay.
Id. at 199.
Here, plaintiff’s counsel, as in Zapata, made no
effort to serve defendants within the 120-day service period,
allowed the statute of limitations to expire before any attempt
at service, and concedes that “[i]t was an oversight on the
attorney’s part that the individual Defendants were not served.”
(Pl.’s Mot. at 4-5.)
It was not until after the City sought to
move to dismiss the claims against the individual defendants and
16
the court held a pre-motion conference to address service issues
that plaintiff’s counsel requested an extension of time to
perfect service.
Most troublingly, unlike the plaintiff in
Zapata, who served the individual defendants only four days
after the Rule 4(m) deadline, here plaintiff’s counsel never
properly served any of the individual defendants.
Even now,
plaintiff’s counsel mistakenly insists that “five of the six
individual defendants were served in this case,” 8 despite no
summons ever issuing from the Clerk of Court and being served on
any defendant.
(See Pl.’s Reply at 5.)
In Harper, plaintiff sued the City and six
individually named police officers for a series of alleged
assaults.
See 424 Fed. App’x at 37-38.
Plaintiff failed to
effect proper service within 120 days of filing the complaint
and the statute of limitations barred refiling of claims against
two of the officers.
Id. at 40-41.
The Second Circuit affirmed
the district court’s Rule 4(m) dismissal of claims against the
officers after recounting “a troubling pattern of carelessness”
by Harper’s counsel similar to that at issue here.
Id.
Harper’s counsel, like plaintiff’s counsel, failed to arrange
for summonses to be issued from the Clerk of Court, failed to
serve the individual defendants with both a summons and
8
As discussed supra note 5, plaintiff has sued seven individual defendants.
17
complaint, and let the statute of limitations run for claims
against individual officers.
Id. at 40-41.
This court recognizes that ordinarily, “the fact that
the statute of limitations has run on a plaintiff’s claim [i]s a
factor favoring the plaintiff in a Rule 4(m) analysis.”
AIG
Managed Market Neutral Fund v. Askin Capital Mgmt., 197 F.R.D.
104, 109 (S.D.N.Y. 2000).
In this instance, and despite the
very serious allegations in the Complaint, counsel’s ongoing
disregard of the basic procedures required to effect proper
service – and thereby confer personal jurisdiction over the
individual defendants in this court – offsets any benefit in
plaintiff’s favor.
As the Second Circuit found in Zapata, “in
the absence of good cause, no weighing of the prejudices between
the two parties can ignore that the situation is the result of
plaintiff’s neglect.”
502 F.3d at 198.
The second discretionary factor in the Rule 4(m)
analysis is whether the defendants had actual notice of
plaintiff’s claims.
Plaintiff argues, without citing evidence
in support, that the individual defendants must have had actual
notice of plaintiff’s claims because “Defendants could not
comply with the discovery in this case without contacting the
individual Defendants.”
(Pl.’s Mot. at 3.)
In response,
counsel for the City submitted a sworn declaration that he is
18
defendants’ only counsel of record and did not communicate with
the individual defendants “about the existence of this lawsuit.”
(ECF No. 26, Declaration of Brian Francolla dated 2/13/15.)
The
only evidence that could possibly establish that the individual
defendants received notice of the claims against them is the
affidavits of “service” that plaintiff attempted to serve in
January 2014.
But plaintiff admits this “service” did not occur
until January 2014, approximately eight months after plaintiff
filed the Complaint in April 2013, well past the 120-day period
to serve process, and five months past the expiration of the
statute of limitations in August 2013.
Thus, the notice factor
weighs against granting plaintiff an extension of time to serve
the individual defendants.
The third factor, whether defendants attempted to
conceal the defects in service, is inapplicable and thus does
not favor granting plaintiff an extension.
There is no evidence
that the individual defendants knew about and attempted to
conceal the defects in service.
Plaintiff’s argument that
“Defendant failed to notify the Court of the defect in service”
is unavailing.
(Pl.’s Mot. at 5.)
It is not “the role of the
Court or an attorney on the case to alert a represented
plaintiff about the defects in service.”
Khanukayev v. City of
New York, No. 09-cv-6175, 2011 WL 5531496, at *5 (S.D.N.Y. Nov.
19
15, 2011); see also Carl v. City of Yonkers, 348 Fed. App'x 599,
601 (2d Cir. 2009) (finding “no rules that would apply in this
case that require that a plaintiff be notified of failure to
properly serve defendants”).
The final factor, whether defendants would be
prejudiced by extending time for service, favors dismissal.
The
Zapata court explained that prejudice “arises from the necessity
of defending an action after both the original service period
and the statute of limitations have passed before service.”
F.3d at 198.
502
Such prejudice exists here, as plaintiff has not
effected proper service during the nearly two years this case
was pending before defendants filed their motion to dismiss.
This delay is similarly egregious to delays that have prompted
courts to find prejudice and deny extensions of time to cure
defective service.
See, e.g., Carl, 348 Fed. App’x at 601
(nearly three-year delay after filing lawsuit); Yaxin Jing, 2013
WL 950585, at *3 (E.D.N.Y Mar. 11, 2013) (six-month delay);
Mused v. United States Dep't of Agric. Food & Nutrition Serv.,
169 F.R.D. 28, 30–35 (W.D.N.Y. 1996) (one-year delay).
On balance, the foregoing factors counsel against
granting an extension of time for service and weigh heavily in
favor of dismissal.
The court recognizes the very serious
nature of the allegations against the individual defendants and
20
the judicial preference for adjudication of claims on their
merits.
Nonetheless, “if the Rules are to mean anything,
parties must diligently try to follow them and courts must
enforce them, even if it means that cases must sometimes be
finally determined on procedural grounds rather than on their
substantive merits.”
Mused, 169 F.R.D. at 35.
The court thus
grants defendants’ Rule 4(m) motion to dismiss the claims
against the individual defendants.
Plaintiff’s motion for an
extension of time to serve the individual defendants is denied
as moot.
II.
Rule 12(c) Motion by the City and DOC
Rule 12(c) allows parties to move for judgment on the
pleadings “[a]fter the pleadings are closed – but early enough
not to delay trial.”
Fed R. Civ. P. 12(c).
The standard to
evaluate a Rule 12(c) motion for judgment on the pleadings is
the same as that for a Rule 12(b)(6) motion to dismiss for
failure to state a claim.
15 (2d Cir. 2013).
Hogan v. Fischer, 738 F.3d 509, 514–
A plaintiff must therefore plead facts
sufficient “to state a claim that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In
applying that standard, a court must accept the complaint’s
factual allegations as true and draw all reasonable inferences
in the plaintiff’s favor.
Kirkendall v. Halliburton, 707 F.3d
21
173, 178 (2d Cir. 2013).
Although a court must assume the truth
of factual allegations, it need not credit “a legal conclusion
couched as a factual allegation.”
Twombly, 550 U.S. at 555.
A
“pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (quoting Twombly, 550 U.S.
at 555).
“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.”
A.
Id.
Claims against the DOC
Plaintiff’s claims against the DOC must be dismissed
because the DOC is a non-suable entity.
The New York City
Charter provides that “[a]ll actions and proceedings for the
recovery of penalties for the violation of any law shall be
brought in the name of the City of New York and not in that of
any agency, except where otherwise provided by law.”
Admin. Code & Charter ch. 17 § 396 (2004).
N.Y.C
This provision has
been construed to establish that “suits against the DOC are
suits against a non-suable entity and are properly dismissed
upon that basis.”
Echevarria v. Dep’t of Corr. Servs. of N.Y.
City, 48 F. Supp. 2d 388, 391 (S.D.N.Y. 1999); see also Lopez v.
Zouvelos, No. 13-CV-6474 MKB, 2014 WL 843219, at *2 (E.D.N.Y.
22
Mar. 4, 2014) (dismissing all claims against the DOC as a nonsuable entity); Campbell v. New York City, No. 12–CV–2179, 2012
WL 3027925, at *2 (E.D.N.Y. July 23, 2013) (same).
Plaintiff’s
claims against the DOC are therefore dismissed with prejudice
for failure to state a claim.
B.
Claims against the City of New York
To state a claim for relief under § 1983 against a
municipal defendant such as the City, a plaintiff must show (1)
the existence of an adopted policy or custom that caused injury
and (2) a direct causal connection between that policy or custom
and the deprivation of a constitutional right.
See Monell v.
Dep’t of Social Servs. of City of New York, 436 U.S. 658, 694
(1978); see also Cash v. Cnty. Of Erie, 654 F.3d 324, 333 (2d
Cir. 2011) (“[T]o establish municipal liability under § 1983, a
plaintiff must prove that action pursuant to official municipal
policy caused the alleged constitutional injury.” (internal
quotation marks and citation omitted)).
“Absent such a custom,
policy, or usage, a municipality cannot be held liable on a
respondeat superior basis for the tort of its employee.”
v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012).
Jones
Therefore,
“isolated acts of excessive force by non-policymaking municipal
employees are generally not sufficient to demonstrate a
23
municipal custom, policy, or usage that would justify municipal
liability.”
(Id. at 81.)
Plaintiff’s first cause of action alleges that the
City is liable “under the principle of respondent [sic]
superior” for the constitutional violations alleged against the
individual defendants.
(Compl. ¶ 32.)
As noted, however, it is
firmly established that a municipality cannot be held liable
under 42 U.S.C. § 1983 for constitutional violations committed
by its employees solely on the basis of respondeat superior.
See Ricciuti v. New York City Transit Authority, 941 F.2d 119,
122 (2d Cir. 1991); Matusick v. Erie Cnty. Water Auth., 757 F.3d
31, 62 (2d Cir. 2014) (“[A] municipality cannot be held liable
for the conduct of employees under a respondeat
superior theory.”)
Indeed, plaintiff’s opposition to the City’s
motion for judgment on the pleadings concedes that “a
municipality cannot be held liable under 42 U.S.C. § 1983 on a
respondent [sic] superior theory . . . .” (ECF No. 34,
Plaintiff’s Memorandum in Opposition to Defendants’ Motion for
Judgement on the Pleadings, at 8.)
Plaintiff’s first cause of
action against the City, based on respondeat superior, is
therefore dismissed with prejudice for failure to state a claim.
Plaintiff’s second claim against the City, for
“careless and reckless” hiring and retaining of the individual
24
defendants, also must be dismissed.
Plaintiff alleges the City
“knew or had reason to know that the individually named
Defendants lacked the experience, deportment and ability” and
“mental capacity” to be employed by the City.
40.)
(Compl. ¶¶ 38-
But plaintiff does not connect the allegedly careless and
reckless hiring and retaining of the individual officers to an
official policy or custom of the City, as is required to
establish the City’s liability under § 1983.
Moreover,
plaintiff does not even allege the existence of a custom or
policy that caused his injury, or any facts to suggest that the
City may have such a custom or policy.
See, e.g., Harper, 424
F. App’x at 39 (dismissing Monell claim against the City for
failure to state a claim where plaintiff did “not even provide
an indication of what the City’s custom or policy to which he
was subjected consists of”).
Accordingly, plaintiff’s second
cause of action against the City fails to state a Monell claim.
Although plaintiff’s opposition to the defendants’
Rule 12(c) motion does not request leave to amend the Complaint,
the Second Circuit has cautioned that “leave to amend ‘shall be
freely given when justice so requires.’”
McCarthy v. Dun &
Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (quoting Fed.
R. Civ. P. 15(a)).
Plaintiff therefore is granted leave to
amend the Complaint only as to his § 1983 claim against the City
25
for “careless and reckless” hiring and retention.
If plaintiff
believes he has facts to allege a plausible claim for “careless
and reckless” hiring and retention and intends to pursue a claim
based on municipal liability, the amended complaint must be
filed no later than January 15, 2016.
Failure to timely amend
will result in dismissal of this claim with prejudice.
Conclusion
For the foregoing reasons, defendants’ Rule 4(m)
motion to dismiss the claims against the individual defendants
for failure to serve process is granted and all claims against
the individual defendants are dismissed with prejudice.
Defendants’ Rule 12(c) motion for judgment on the pleadings
against the City and DOC is also granted.
Plaintiff’s claims
against the DOC are dismissed with prejudice, as is plaintiff’s
claim against the City based on a theory of respondeat superior.
Plaintiff’s claim against the City pursuant to 42 U.S.C. § 1983
for “careless and reckless” hiring and retention is dismissed
without prejudice.
Plaintiff shall have until January 15, 2016
to file an amended complaint solely as to this claim.
Plaintiff’s motion for an extension of time to effect proper
service on the individual defendants is denied as moot.
26
SO ORDERED.
Dated:
Brooklyn, New York
December 23, 2015
_________/s/________________
KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York
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