Pinero v. City of New York et al

Filing 32

MEMORANDUM and ORDER: On May 23, 2017, after the three-year statute of limitations had run, plaintiff amended her complaint to name the John Doe officers, adding Officers Timothy Scotto, Michael McAvoy and Michael Otterback. Defendants move to dismis s these three officers pursuant to Rule 12(b)(6) on statute of limitations grounds. Defendants motion 24 is grantedas to Scotto, McAvoy, and Otterback are time-barred and therefore dismissed. The case will proceed only against Sabbio and the City of New York. See attached Memorandum and Order for details. Ordered by Judge Frederic Block on 7/12/2018. (Innelli, Michael) Modified on 7/12/2018 (Innelli, Michael).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CARMEN PINERO,
Plaintiff,
-against-

MEMORANDUM AND ORDER
1:16-cv-5890(FB)(RML)

CITY OF NEW YORK, THOMAS
SABBIO, TIMOTHY SCOTTO,
MICHAEL MCAVOY, MICHAEL
OTTERBACK, and JOHN and JANE DOE
1-10,
Defendants.
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Appearances:
For the Plaintiff
BRETT H. KLEIN
Brett H. Klein, Esq. PLLC
305 Broadway, Suite 600
New York, NY 10007

For the Defendant
BEN KURUVILLA
MARK DAVID ZUCKERMAN
ASHLEY REBECCA GARMAN
New York City Law Department
100 Church Street
New York, NY 10007

BLOCK, Senior District Judge:
On October 21, 2016, plaintiff brought this action pursuant to 42 U.S.C. §§ 1983
and 1988 for false arrest, excessive force, failure to intervene, unlawful entry, and
Monell liability against New York Police Department (“NYPD”) Officer Thomas
Sabbio, the City of New York, and John Doe officers. Plaintiff’s complaint alleges that
on January 25, 2014, Sabbio and the John Doe officers entered her apartment, physically
assaulted her, handcuffed her, and took her to the hospital. She was released with no

charges filed.
On May 23, 2017, after the three-year statute of limitations had run, see Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013), plaintiff amended her complaint to name the
John Doe officers, adding Officers Timothy Scotto, Michael McAvoy and Michael
Otterback. Defendants now move to dismiss these three officers pursuant to Rule
12(b)(6) on statute of limitations grounds. Defendants’ motion is granted.
“The lapse of a limitation period is an affirmative defense that a defendant must
plead and prove.” Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir.
2008). “However, a defendant may raise an affirmative defense in a pre-answer Rule
12(b)(6) motion if the defense appears on the face of the complaint.” Id. (citing 5
Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1226 (3d
ed. 2004)).
Plaintiff does not dispute that she filed her amended complaint naming the three
officers more than three years after statute of limitations began to run. See Palmer v.
City of New York, 315 F. App’x 350 (2d Cir. 2009) (plaintiff’s “excessive force claim
accrued . . . when he was . . . subjected to the alleged use of excessive force”).
However, under Federal Rule of Civil Procedure 15(c)(1)(A), a plaintiff can
substitute John Doe defendants, nunc pro tunc, so long as the plaintiff meets the
requirements of New York Civil Practice Law and Rules (“CPLR”) § 1024. Hogan v.

2

Fischer, 738 F.3d 509, 517 (2d Cir. 2013). “To take advantage of § 1024, a party must
meet two requirements.” Id. at 519. “First, the party must ‘exercise due diligence, prior
to the running of the statute of limitations, to identify the defendant by name.’” Id.
(quoting Bumpus v. N.Y.C. Transit Auth., 66 A.D.3d 26, 29-30 (2d Dep’t 2009)).
“Second, the party must describe the John Doe party ‘in such form as will fairly
appraise the party that [he] is the intended defendant.’” Id. (quoting Bumpus, 66 A.D.3d
at 30). Failing to file any written requests to identify unknown police officers can
constitute a lack of due diligence. Williams v. United States, 2010 WL 963474, at *12
(S.D.N.Y. Feb. 25, 2010).
Here, plaintiff failed to exercise due diligence. She took only two unsuccessful
actions to attempt to determine the identity of the unnamed officers in the three years
since her claims accrued: She sought her own hospital records1 from the night of her
police encounter, and she filed an Civilian Complaint Review Board (“CCRB”)
complaint shortly after her arrest, which was resolved in favor of the officers in
September 2014.

It is unclear why plaintiff believed her own hospital records would contain
the names of the unidentified police officers.
1

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The officers’ names were not disclosed in the notice sent to plaintiff, yet for more
than two years afterwards, plaintiff made no request, formal or informal, to the police
department or CCRB to determine the officers’ names.2 Plaintiff now argues that she did
not need to make such an inquiry because the City was not obligated by law to provide
the names and would likely have rebuffed the request. However, she was still required
to make at least a minimal effort. Perhaps the City would have responded to an informal
request for the officers’ names; perhaps not. But if plaintiff is not required to put
forward even a minimal effort to determine the names of the Doe officers, the “due
diligence” requirement would have no practical effect. Her failure to do so is even less
excusable given that she is represented by counsel. Cf. Williams, 2010 WL 963474, at
*13 (failure to submit any written requests to identify John Doe defendants not
excusable even though plaintiff was pro se and incarcerated).
Even after filing her complaint, plaintiff did not exercise due diligence. She made
no effort to discover the names of the John Doe officers. Despite knowing she needed
these names, she consented to defendants’ request for an extension of time for the initial
conference without seeking them. As a result, the statute of limitations ran.
Because plaintiff did not exercise due diligence to determine the names of the
John Doe defendants, she cannot avail herself of Rule 15(c)(1)(A). Plaintiff’s claims
In fact, plaintiff waited nearly two full years after learning that the CCRB
internal investigation exonerated the officers before filing her complaint, which she
filed less than three months before the expiration of the statute of limitations.
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against Scotto, McAvoy, and Otterback are time-barred and therefore dismissed. The
case will proceed only against Sabbio and the City of New York.
SO ORDERED
__/S/ Frederic Block________
FREDERIC BLOCK
Senior United States District Judge
Brooklyn, New York
July 12, 2018

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