Gonzalez v. John Doe et al

Filing 80

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)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------------------------)( JOEL GONZALEZ, Plaintiff, - 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 MEDICAL STAFF, ORDER ADOPTING REPORT AND RECOMMENDATION 14-CV-6749 (RRM) (LB) Defendants. ------------------------------------------------------------------)( 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 1 Fami liarity with the facts and procedural history of this action, both of which are set out in Judge Bloom's R&R, is presumed. 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., No. 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. 2 DISCUSSION I. 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 3 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 Diaz. II. 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 4 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. III . 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.) CONCLUSION 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. SO ORDERED. Dated: Brooklyn, New York 71AfcA.d (3 '2018 s/Roslynn R. Mauskopf ROSL YNN R. MAUSKOPF United States District Judge 5

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