Gonzalez v. John Doe et al
ORDER ADOPTING REPORT AND RECOMMENDATION: For the reasons set forth in the attached written order, Gonzalez's objection is overruled, and the Court adopts Judge Bloom's R&R in its entirety, and dismisses the Second Amended Complaint. it is hereby ordered that the defendants' motion to dismiss be granted. The Clerk of Court is directed to enter judgment pursuant to this Order, and to close this case. The Clerk of Court is further directed to mail a copy of this Order and the accompanying judgment to pro se plaintiff Joel Gonzalez, and note the mailing on the docket. Ordered by Judge Roslynn R. Mauskopf on 3/13/2018. (Taronji, Robert)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
- against RIKERS ISLAND WARDEN; CAPT. DESMOND
BLAKE, No. 1604;
C.O. ANTHONY SPIOTTA, No. 17495;
C.O. DAMIEN CHEATAM, No. 18123;
CAPT. NORMAN WILLIAMS, No. 127;
C.O. MYRA WILLIAMS, No. 9476;
C.O. ELIA AMANATEDES, No. 14894;
C.O. RUPERT FULLERTON, No. 4277; and
ORDER ADOPTING REPORT
14-CV-6749 (RRM) (LB)
ROSL Yl\fN R. MAUSKOPF, United States District Judge.
Pro se plaintiff Joel Gonzalez brings this action pursuant to 42 U.S.C. § 1983 , alleging
that the defendant correctional officers violated his constitutional rights by using excessive force
against him at Rikers Island on August I, 2011 .
Before the Court is a Report and Recommendation ("R&R") of the Honorable Lois
Bloom, Magistrate Judge, recommending dismissal of Gonza lez's Second Amended Complaint. 1
Gonzalez has filed an objection. (Pl. Obj. (Doc. No. 78).) For the reasons set forth below,
Gonzalez's objection is overruled, and the Court adopts Judge Bloom's R&R in its entirety, and
dismisses the Second Amended Complaint.
On December 11 , 2017, Judge Bloom issued her R&R, recommending that the
defendants' motion to dismiss be granted. Judge Bloom reminded the part ies that, pursuant to
Fami liarity with the facts and procedural history of this action, both of which are set out in Judge Bloom's R&R, is
Federal Rule of Civil Procedure ("Rule") 72(b), any objection to the R&R must be filed within
fourteen days of service. (R&R at l 0.) A copy of the R&R was mail ed to Gonzalez on
December 11 , 20 17, and Gonzalez timely filed his objections. (Pl. Obj. (Doc. o. 78).)
STANDARD OF REVIEW
Where a party objects to an R&R, the Court must make "a de nova determinati on of those
portions of the report or specified proposed fi ndings or recommendati ons to which objection is
made." 28 U.S.C. § 636(b)( I)(C); United Stales v. Male Juvenile, 121 F.3d 34, 38 (2d Cir.
1997). A court will rev iew an R&R de nova on ly if the objecting party '·point[s] out the spec ifi c
portions of the report and recommendation to which that party objects ... fouche v.
Schneiderman, No. 14-CV-752 (NGG) (LB), 20 15 WL 1258288, at *I (E.D.N.Y. March 17,
20 15) (internal citations and alterati ons om itted).
Where, instead, a party "simply reliti gates his original arguments, the Court reviews the
Report and Recommendation only for clear error.., Antrobus v. New York City Dep 't of
Sanitation, No. l 1-CY-5434 (CBA) (LB), 2016 WL 5390 120, at* 1 (E.O.N.Y. Sept. 26, 2016)
(internal citati ons and quotation marks omitted); see also Rolle
v. Educ. Bus Transp. , inc.,
13-CY- 1729 (SJF) (AKT), 20 14 WL 4662267, at *1 (E. D.N.Y. Sept. 17 20 14) ("A rehashing of
the same arguments set forth in the original papers ... would reduce the magistrate 's work to
something akin to a meaningless dress rehearsa l.'').
Here, out of an abundance of caution, and give n Gonzalez' s prose status, the Court has
liberally construed the arguments raised, and has reviewed the entire R&R de novo. Having
done so, the Court adopts the R&R in its entirety.
Equita ble Tolling and Equitable Esto ppcl
Gonzalez articulates multiple objections to the R&R 's determination that he is not
entitled to equi table tolling or estoppel. Each is without merit.
First, Gonzalez claims that the R&R overlooks the fact that his court documents were
seized and destroyed. (Pl. Obj. at 5.) Contrary to Gonzalez' s assertions, the R&R specifically
acknowledges those circumstances, but concludes that the "documents were not necessary for
[Gonzalez] to timel y file his comp laint." This Court agrees. As Judge Bloom noted, Gonzalez
was well aware of the facts surrounding the incident that form s the bas is of hi s complaint, and
none of the documents at issue were required for him to acquire facts necessary to his cause or
action. (R&R at 8.) Nor were his med ical record s necessary for Gonzalez to file a timely claim
of excessive force. Id. Thus, equitab le tolling is not warranted here. (See R&R at 8.)
Gonzalez also asserts in his objections, as he did before the Magistrate Judge, that his
transfer between facilities and his placement in the Special Housing Unit warrant equitable
tolling. (Pl. Obj. at 5.) The Magistrate Judge correctly concluded that these circumstances are
'·routine experiences of prison Iife that do not rise to a level of extraordinary circumstances ..,
(R&R at 7; see Warren v. Kelly, 207 F. Supp. 2d 6, I 0 (E. D.N.Y. June 16, 2002) ("Transfers
between priso n fac il ities, solitary confinement, lockdowns, restricted access to the law library
and an inability to secure court documents do not quali fy as extraordinary circumstances.,.).)
Moreover, Jud ge Bloom noted that plaintiff was at the Metropolitan Detention Center for thirtytwo months before the statute or limitations elapsed. This provided Gonza lez with ample
stability and time to fi le his complaint. (R& R at 7.)
Finally, Gonzalez argues that the Magistrate Judge incorTectly concluded that limited
English skills does not provide a basis for equitable tolling, contrary to the Second Circuit's
precedent in Diaz v. Kelly, 515 F.3d 149 (2d Cir. 2007). (Pl. Obj. at 3.) His claim is without
merit. In Diaz, the Second Circu it found that certain language barriers may justify equ itable
tolling, but that '·the diligence requirement of equ itable tol ling imposes on the prisoner a
substantial obl igati on to make all reasonable efforts to obtain assistance to mitigate his language
deficiency." Diaz, 515 F.3d at 154 (rejecting equitable tolling because the petitioners had not
satisfied the diligence requirement). Gonzalez himself "acknowledges [sic] that hi s lack of the
English Language per se [sic] ... does not justify equitable tolling." (Pl. Obj. at 3.) However, he
has failed to demonstrate that he took any reasonable efforts to miti gate any language defi ciency.
Instead, he again points to the destruction of his documents and his transfer to excuse his
untimely filing. These ci rcumstances do not satisfy Gonzalez's '·substantial obligati on" under
Failure to Liberally Construe
Gonzalez argues that Magistrate Judge Bloom did not construe his papers liberall y, but
rather held him to the same standards as she would an attorney. (Pl. Obj. at 6.) It is ax iomatic
that a "docwnent fi led prose is to be liberally construed and a prose comp laint, however
inartfully pleaded, must be held to less stringent standards than formal plead ings drafted by
lawyers." Boykin v. KeyCorp, 52 1 F.3d 202, 2 14 (2d Cir. 2008) (internal quotation marks
omitted). The Court must construe a pro se complaint with "special solicitude," and interpret it
to raise the strongest arguments it suggests. Tries/man \ . Fed. Bureau of Prisons, 470 F.3d 47 1,
474-75 (2d Cir. 2006) (quoting Ruotolo v. 1.R.S., 28 F.3d 6 8 (2d Cir. 1994)). Even so, "a prose
complaint must state a plausible claim for relief." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir.
2013). Here, the R&R fu lly acknowledges that Gonzalez is prose, and took into account all of
the facts cited by Gonzalez to raise the stro ngest equitable arguments possible. Gonzalez was
given multiple opportunities to provide supp lemental exp lanations as to why he did not fi le his
complaint within the statute of limitations period. (See R&R at 2-3.) Thus, out of an abundance
of caution, Gonzalez was accorded the "special solicitude" he deserved. However, irrespective
of his prose status, Gonzalez's arguments to the Magistrate Judge, many of which are repeated
in hi s objections, do not give rise to a bas is for equitable tol ling or estoppe l.
Leave to Amend Denied
Whereas typical ly the Court allows prose plaintiffs an opportuni ty to amend their
complaint, it need not afford that opportunity here where it is clear that any attempt wou ld be
futile. See Cuoco v. Morilsugu, 222 F.3d 99, 11 2 (2d Cir. 2000) (deny ing leave to amend a pro
se complaint where amendment is futi le). Gonzalez has been afforded several opportunities to
amend hi s complaint, and this Court has already denied his motion to fi le a third amended
complaint as futile. (Doc. No. 55.)
Accordingly, it is hereby ordered that the defendants ' motion to dismiss be granted. The
Clerk of Court is directed to enter judgment pursuant to thi s Order, and to close this case. The
Clerk of Court is fu1ther directed to mail a copy of thi s Order and the accompanying judgment to
prose plaintiff Joel Gonzalez, and note the mailing on the docket.
Dated: Brooklyn, New York
71AfcA.d (3 '2018
s/Roslynn R. Mauskopf
ROSL YNN R. MAUSKOPF
United States District Judge
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