Bynum v. Five John Does and One Jane Doe et al

Filing 48

ORDER granting 39 defendants' Motion to Dismiss for Failure to State a Claim. For the reasons discussed in the attached, the court grants defendants' motion and finds that plaintiff's false arrest claim is barred by the statute of li mitations, and that his malicious prosecution claim fails as a matter of law.The Clerk of Court is respectfully requested to enter judgment in favor of defendants, dismiss plaintiff's complaint in its entirety, and close the case. The Clerk is also respectfully requested to mail a copy of this order, the judgment, and an appeals packet to plaintiff at his address of record, or such other address that the Clerk can obtain with reasonable diligence. The court notes that the last mailing by the court was returned as undeliverable, and that plaintiff's listed address is apparently associated with a United States Post Office general delivery window. Ordered by Judge Kiyo A. Matsumoto on 3/19/2019. (Mazzurco, Vincent)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
GREGORY BYNUM,
Plaintiff,
-againstONE JANE DOE, et al.,

MEMORANDUM & ORDER
16-CV-6332(KAM)(ST)

Defendants.
----------------------------------X
MATSUMOTO, United States District Judge:
Plaintiff Gregory Bynum (“Bynum” or “plaintiff”),
proceeding pro se while incarcerated on a conviction unrelated
to this lawsuit, initiated the instant 42 U.S.C. § 1983 action
on November 9, 2016, against unnamed police officers and their
supervisors, alleging deprivations of his constitutional rights
during a stop and subsequent arrest on May 5, 2013, and
prosecution on an unspecified criminal charge. 1
1, Civil Cover Sheet at 3.) 2

(See ECF No. 1-

Bynum named a number of defendants

including six John and Jane Doe officers of the New York Police
Department’s (“NYPD”) 79th Precinct, the City of New York, the
NYPD, the prosecuting District Attorney’s office, and the Civil
Service Commission.

(Id.)

Plaintiff amended his complaint, on

November 30, 2016, and named as defendants the six John and Jane
1
According to the Amended Complaint (“Am. Compl.”), Bynum was
subsequently released and the charge was adjourned in contemplation of
dismissal. (Am. Compl. at 6; see also ECF No. 46, Notice of Change of
Address.)
2
For plaintiff’s filings, the court refers to pagination as delineated
by the electronic case filing system.

Doe officers once again, a supervisory sergeant, the Brooklyn
District Attorney’s office, and the prosecuting Assistant
District Attorney.

(See ECF No. 8, Am. Compl.)

On April 24,

2017, the court granted Bynum’s motion for leave to proceed in
forma pauperis (“IFP”) and dismissed his claims for failure to
state a claim pursuant to 28 U.S.C. §§ 1915 and 1915(A) as to
all but the John and Jane Doe officer defendants.
9, Order at 1-2.)

(See ECF No.

The court also ordered Corporation Counsel

for the City of New York, appearing for defendants, to
“ascertain and provide the full names and service address(es) of
the police officers involved in the alleged arrest” of plaintiff
pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997).
(Id. at 14.)
After a number of extensions, (see generally ECF Nos.
11-18), the City eventually identified Officer Patrick Gordon,
Sergeant Robert Holt, and Captain Roshan Patel as individuals
involved in plaintiff’s May 5, 2013 arrest.

(See ECF No. 20.)

The case caption was amended to include these defendants. (See
Docket Order dated Aug. 7, 2017.)
Defendants now move this court to dismiss Bynum’s
amended complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) (“Rule 12(b)(6)”) for failure to state a claim.

For

the reasons discussed below, the court grants defendants’ motion
and finds that plaintiff’s false arrest claim is barred by the
2

statute of limitations, and that his malicious prosecution claim
fails as a matter of law.
BACKGROUND
Sometime around 11 p.m. or midnight, on May 5, 2013,
Bynum was walking with a friend after having visited a nearby
store when three unmarked police vehicles came to a screeching
stop, surrounding Bynum and his friend. 3

(Am. Compl. at 5.)

A

female officer and her male partner quickly exited one of the
vehicles and the partner demanded Bynum, “give [them] the beer
can.”

(Id. at 5.)

As this was happening, four more officers

exited the other two vehicles and stood behind Bynum and his
friend.

(Id.)

After plaintiff explained that he did not have a

beer can, the male officer searched him—obtrusively, according
to plaintiff.
7, 2013.

(Id.)

(Id.)

He was then arrested, and arraigned on May

At his arraignment, plaintiff’s case was

“adjourned contemplating dismissal” and eventually dismissed on
November 6, 2013.

(Id. at 6.)

The records of plaintiff’s

arrest and prosecution were apparently sealed pursuant to N.Y.
Crim. Proc. Law § 160.55 on November 7, 2013.

The Amended Complaint does not specify the date of plaintiff’s arrest,
but plaintiff’s opposition to the instant motion to dismiss sets the date as
May 5, 2013. (See Pl. Opp. at 1.)

3

3

LEGAL STANDARD
I.

Sufficiency of the Pleadings
Defendants move pursuant to Rule 12(b)(6) to dismiss

the complaint for failure to state a claim.

A plaintiff must

plead facts that, if accepted as true, “state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550

A complaint is facially plausible when

the “plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.”
(2009).

Ashcroft v. Iqbal, 556 U.S. 662, 678

A complaint need not contain detailed factual

allegations, but must contain more than mere “labels and
conclusions” or a “formulaic recitation of the elements of a
cause of action” or “naked assertions” devoid of “further
factual enhancement.”

Id.

For motions under Rule 12(b)(6), the

court assumes the truth of all facts asserted in the operative
complaint and draws all reasonable inferences from those facts
in favor of the non-moving plaintiff.

Global Network Commc'ns,

Inc. v. City of New York, 458 F.3d 150, 154 (2d Cir. 2006).
II.

Statute of Limitations
Although “[t]he lapse of a limitations period is an

affirmative defense that a defendant must plead and prove,” a
statute of limitations defense may be “raise[d] . . . in a preanswer Rule 12(b)(6) motion if the defense appears on the face
4

of the complaint.”

Staehr v. Hartford Fin. Servs. Grp., Inc.,

547 F.3d 406, 425 (2d Cir. 2008).

The limitations period for

§ 1983 actions arising in New York is three years.

Eagleston v.

Guido, 41 F.3d 865, 871 (2d Cir. 1994) (citing Owens v. Okure,
488 U.S. 235, 250–51 (1989)).
Though federal courts apply a state’s statute of
limitations for § 1983 claims, federal law determines when a
§ 1983 cause of action accrues.

Singleton v. City of New York,

632 F.2d 185, 191 (2d Cir. 1980); Ormiston v. Nelson, 117 F.3d
69, 71 (2d Cir. 1997).

The three-year statute of limitations

applicable to § 1983 claims in New York begins to run when the
plaintiff “knew or should have known of the discriminatory
action.”

Washington v. Cty. of Rockland, 373 F.3d 310, 319 (2d

Cir. 2004); Covington v. City of New York, 171 F.3d 117, 121 (2d
Cir. 1999) (“[T]he time of accrual [is] that point in time when
the plaintiff knows or has reason to know of the injury which is
the basis of his action.”).
At the time of filing his original complaint on
November 9, 2016, plaintiff was incarcerated and proceeding pro
se.

That is relevant when considering the statute of

limitations because under the so-called prison-mailbox rule, a
pro se prisoner’s § 1983 complaint is deemed filed when it is
delivered to prison officials for transmittal to the court.
Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993) (citing Houston
5

v. Lack, 487 U.S. 266, 270 (1988)).

When the date a prisoner

handed his filings to prison officials is unclear, courts have
looked to the date the complaint was signed, or the date of
other documents filed along with the complaint.

See Lehal v.

United States, No. 13-CV-3923, 2015 WL 9592706, at *17 (S.D.N.Y.
Dec. 29, 2015); Mitchell v. Bell, No. 04-CV-1490, 2006 U.S.
Dist. LEXIS 102556, at *8-9 (N.D.N.Y. Aug. 29, 2006); see also
Kevilly v. Connell, No. 06-CV-5672, 2009 U.S. Dist. LEXIS 22414,
at *8 n.3 (E.D.N.Y. Mar. 19, 2009).
DISCUSSION
The Clerk of Court received plaintiff’s complaint on
November 9, 2016 and entered the papers on the docket of the
court’s electronic case filing (“ECF”) system.
Compl.)

(See ECF No. 1,

To determine the date plaintiff actually filed his

papers pursuant to the prison-mailbox rule, the court must
consider when plaintiff delivered his papers to prison
officials.

Plaintiff’s original complaint is unsigned.

His

contemporaneously received motion to proceed IFP is signed but
the space for the date reads “Signed this 7th day of
2016,” with the space for the month left blank.
IFP Mot. at 5.)

,

(See ECF No. 2,

In addition, Bynum’s motion to appoint counsel,

also contemporaneously received, bears the date November 7,
2016.

(See ECF No. 3, Mot. Appoint Counsel at 5.)

6

Therefore,

pursuant to the prison-mailbox rule, the court shall deem
plaintiff’s complaint filed on November 7, 2016.
I.

False Arrest Claim
Defendants argue that plaintiff’s false arrest claim

accrued on May 5, 2013, and thus his complaint filed on November
7, 2016 was untimely.

(See Def. Mot. at 4; Def. Reply at 1.)

Plaintiff responds that defendants are mistaken about his arrest
date, but does not dispute that his arraignment for his alleged
false arrest occurred on May 7, 2013, and that his arrest
occurred sometime earlier.

(See Am. Compl. at 6, 8; Pl. Opp. at

1-2, 4.)
Bynum’s false arrest claim is clearly time-barred.
Although § 1983 claims accrue when the plaintiff knows or has
reason to know of the harm, Connolly v. McCall, 254 F.3d 36, 41
(2d Cir. 2001), there remains some inconsistency in Second
Circuit authority as to exactly when a false arrest claim
accrues.

See Singleton, 632 F.2d at 191 (comparing points of

accrual for false arrest claims under New York law and federal
law).

In Singleton v. City of New York, the Second Circuit

found that a false arrest claim accrued on the date of arrest as
that “was the time at which plaintiff knew of his injury arising
from the alleged . . . false arrest.”

Id.

Since Singleton was

decided, however, the Supreme Court has held that the
limitations period for false imprisonment and false arrest, a
7

species of false imprisonment, begins to run “when the alleged
false imprisonment ends.”

Wallace v. Kato, 549 U.S. 384, 388-89

(2007) (internal quotation mark omitted); see also Lynch v.
Suffolk Cty. Police Dep’t, Inc., 348 F. App’x 672, 675 (2009).
Applying Wallace v. Kato, the Second Circuit has held that
“false imprisonment ends when ‘the victim becomes held pursuant
to legal process,’” e.g., when he is arraigned on charges.
Lynch, 348 F. App’x at 675 (quoting Wallace, 549 U.S. at 38889).

Given the Supreme Court’s intervening decision in Wallace,

the court finds that plaintiff’s false arrest claim accrued on
the date of his arraignment, May 7, 2013.
Thus, because plaintiff does not allege that a
continuing violation or equitable tolling theory is applicable,
nor could he, he had until May 7, 2016, at the latest, to bring
his claim for false arrest. 4

As such, plaintiff’s false arrest

claim, filed on November 7, 2016, is untimely regardless of
whether it accrued on May 5, 2013 or May 7, 2013, and is
therefore dismissed with prejudice.

Defendants assert that a three-year limitations period which began to
run on May 5, 2013 would expire on May 4, 2016. (See Def. Reply at 2.) The
court agrees that May 4, 2016 is the final day of a three-year period
beginning on May 5, 2013, assuming May 5, 2013 is counted as the first day of
the period. However, “when a statute of limitations is measured in years,
the last day for instituting the action is the anniversary date of the start
of the limitations period.” Mickens v. United States, 148 F.3d 145, 148 (2d
Cir. 1998) (citing Fed. R. Civ. P. 6(a)).
4

8

II.

Malicious Prosecution Claim
A. Statute of Limitations
Defendants further argue that the limitations period

for Bynum’s malicious prosecution claim expired on November 5,
2016, and that this claim is thus untimely.

(Def. Mot. at 4.)

Plaintiff responds that, under the prison-mailbox rule, his
complaint, filed November 9, 2016, was handed to prison
officials at least two days prior, and likely by November 7,
2016.

(Pl. Opp. at 2.)
As discussed above, the court finds that the prison-

mailbox rule applies to plaintiff’s complaint and yields a
filing date, for limitations purposes, of November 7, 2016.

The

court further finds that Bynum’s malicious prosecution claim
would have accrued on November 6, 2013, the date his state
prosecution was terminated.

This would mean that the applicable

three-year limitations period began to run on November 6, 2013
and that Bynum was required to file his complaint by November 6,
2016.

However, because November 6, 2016 was a Sunday, Federal

Rule of Civil Procedure 6(a)(1)(C) continues the limitations
period “until the end of the next day that is not a Saturday,
Sunday or legal holiday.

Fed. R. Civ. P. 6(a)(1)(C); see also

Bejaoui v. City of New York, No. 13-CV-5667, 2015 WL 1529633, at
*15 n.13 (E.D.N.Y. Mar. 31, 2015).

As such, the court finds

that plaintiff’s malicious prosecution claim was timely filed
9

under the prison-mailbox rule, because he handed his complaint
to prison officials on November 7, 2016.
B. Favorable Termination
Defendants argue that even if Bynum’s malicious
prosecution claim is timely, the adjournment in contemplation of
dismissal (“ACD”) in his underlying prosecution is not a
favorable termination and thus he cannot prove an essential
element of a malicious prosecution claim.

(Def. Mot. at 4.)

Plaintiff responds that his prosecution was favorably terminated
and relies on N.Y. Crim. Proc. Law § 160.50, the criminal record
sealing statute by which the records of his prosecution were
sealed.

(Pl. Opp. at 5.)

The sealing statute provides that the

record of a criminal action terminating in favor of the accused
shall be sealed.

N.Y. Crim. Proc. Law § 160.50(1).

Plaintiff

reasons that, because his records were so sealed, the
proceedings must have been terminated in his favor.

(Pl. Opp.

at 5.)
Despite plaintiff’s timely filing of his malicious
prosecution claim, as discussed below, it is settled law in the
Second Circuit that an ACD under N.Y. Crim. Proc. Law § 170.55
is not a favorable outcome for purposes of malicious prosecution
claims.

Green v. Mattingly, 585 F.3d 97, 103 (2d Cir. 2009);

see also Singleton, 632 F.3d at 193.

In order to state a

malicious prosecution claim, a plaintiff must plead facts that
10

establish: “‘(1) the initiation or continuation of a criminal
proceeding against plaintiff; (2) termination of the proceeding
in plaintiff’s favor; (3) lack of probable cause for commencing
the proceeding; and (4) actual malice as a motivation for
defendant's actions.’”

Manganiello v. City of New York, 612

F.3d 149, 161 (2d Cir. 2010) (quoting Murphy v. Lynn, 118 F.3d
938, 947 (2d Cir. 1997)).

As to the second element, authority

in this Circuit clearly establishes that “‘an adjournment in
contemplation of dismissal is not considered to be a favorable
termination.’”

Green, 585 F.3d at 103 (quoting Shain v.

Ellison, 273 F.3d 56, 68 (2d Cir. 2001)); see also Fulton v.
Robinson, 289 F.3d 188, 196 (2d Cir. 2002) (finding that “an
‘adjournment in contemplation of dismissal,’ i.e., a conditional
dismissal that becomes final 6–12 months thereafter . . . is not
a favorable termination because it leaves open the question of
the accused’s guilt” (citations omitted) (citing N.Y. Crim.
Proc. Law § 170.55(2))); see also Murphy, 118 F.3d at 948-49
(listing ACDs among state court dismissals deemed not to be
favorable for purposes of malicious prosecution claim).
Moreover, plaintiff’s argument relying on § 160.50
has already been considered and repudiated by the Second
Circuit.

Singleton, 632 F.2d at 193 (“Nor are we persuaded that

[§ 160.50] . . . converts a dismissal under [§] 170.55 into an

11

acquittal or determination that the plaintiff was not guilty,
which would permit him to sue for malicious prosecution.”).
Bynum cannot satisfy the favorable termination element
as a matter of law.

See Breen v. Garrison, 169 F.3d 152, 153

(2d Cir. 1999) (“Because this was not a decision on the merits,
an essential element of a cause of action for malicious
prosecution, the district court did not err in dismissing [the
plaintiff’s] claim for malicious prosecution.”).

For the

foregoing reasons, Bynum fails to state a malicious prosecution
claim pursuant to § 1983.

Accordingly, the court dismisses

plaintiff’s malicious prosecution claim as to all defendants.
Finally, the court finds that even if plaintiff were
to identify the remaining John and Jane Doe defendants, his
claims against them would fail for the same reasons discussed in
this Order.

Therefore, plaintiff’s claims against those

unidentified defendants are also dismissed.
CONCLUSION
For the reasons set forth above, Bynum’s complaint is
dismissed in its entirety.

The Clerk of Court is respectfully

requested to enter judgment in favor of defendants, dismissing
plaintiff’s complaint in its entirety, and to close the case.
The Clerk is also respectfully requested to mail a copy of this
order, the judgment, and an appeals packet to plaintiff at his
address of record, or such other address that the Clerk can
12

obtain with reasonable diligence.

The court notes that the last

mailing by the court was returned as undeliverable, and that
plaintiff’s listed address is apparently associated with a
United States Post Office general delivery window.

See Michael

Wilson, A Manhattan Post Office Is the Only Address Some People
Have, N.Y. Times, Sept. 5, 2014, at A16,
https://www.nytimes.com/2014/09/06/nyregion/a-manhattan-postoffice-is-the-only-address-some-people-have.html.

Plaintiff is

obligated to update the Clerk and the court of any change of
address.

See Eason-Gourde v. Dep’t of Educ., No. 14-CV-7359,

2014 WL 7366185, at *3 (E.D.N.Y. Dec. 23, 2014).

Any notice of

appeal to the Second Circuit must be filed with the Clerk of
Court within 30 days after the judgment is entered.
App. P. 4.

Fed. R.

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.

See Coppedge v. United States, 369

U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

March 19, 2019
Brooklyn, New York

/s/
Kiyo A. Matsumoto
United States District Judge

13