MacFarlane v. Ewald et al
Filing
83
ORDER granting 77 Motion for Partial Summary Judgment. For the reasons set forth herein, defendants' motion for partial summary judgment is granted. Plaintiff's claims arising out of the June 8, 2006 incident against all defendants, and plaintiff's claims against defendants DeMarco and Ewald are dismissed with prejudice. The parties shall submit a proposed Joint Pretrial Order to the Court on the remaining claims on or before September 30, 2016.. Ordered by Judge Joseph F. Bianco on 8/1/2016. (Dolecki, Lauren)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-CV-2877 (JFB) (ARL)
_____________________
ELDEN MACFARLANE,
Plaintiff,
VERSUS
CHARLES EWALD, ET AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
August 1, 2016
___________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Elden MacFarlane
(“plaintiff” or “MacFarlane”) filed this action
on June 14, 2010, alleging claims for relief
pursuant to 42 U.S.C. § 1983 (“Section
1983”) against defendants Charles Ewald
(“Ewald”), Sheriff Vincent DeMarco
(“DeMarco”), Dr. Geraci, and Correction
Officers Curcie, Dean, Mele, Zahn, Lynn,
and Gublosi (collectively, “defendants”). On
November 24, 2015, defendants filed a
motion for partial summary judgment
pursuant to Rule 56 of the Federal Rules of
Civil Procedure. Defendants argue that: (1)
plaintiff’s claims concerning the June 8, 2006
incident are barred by the statute of
limitations, and (2) plaintiff cannot recover
against defendants Ewald and DeMarco
Plaintiff’s initial compliant only included allegations
regarding the July 18, 2007 incident. Plaintiff’s
allegations regarding the June 8, 2006 incident (the
1
because he has no evidence of supervisory
liability.
For the reasons set forth below,
defendants’ motion for partial summary
judgment is granted.
I. BACKGROUND
A. Facts
The following factual allegations from
plaintiff’s amended complaint are taken as
true for the purpose of this motion. From
2006 through 2008, plaintiff was an inmate at
Suffolk County Correctional Facility
(“SCCF”). Plaintiff’s amended complaint
alleges two separate incidents for which he
seeks to recover under 42 U.S.C. § 1983.1
Plaintiff alleges that, on June 8, 2006,
defendant Curcie and other unnamed officers
“2006 incident”) were not raised until he filed his
amended complaint.
used excessive force against him. (Am.
Compl. ¶ 22.) Plaintiff alleges that, on the
same day, false misbehavior charges were
filed against him, and that, at a disciplinary
hearing on June 9, 2006, he was found guilty
of attempting to assault Curcie and sentenced
to 50 days of solitary confinement. (Id. at ¶¶
23, 25.) Plaintiff also alleges that, on July 18,
2007, defendant Mele and other unidentified
corrections officers used excessive force
against him, causing him to be improperly
charged with disciplinary violations. (Id. at
¶¶ 30-31.) Plaintiff was found guilty of three
of the five charged violations, including
attempted assault on Mele, at a disciplinary
hearing on July 24, 2007, and sentenced to
seventy-one days in solitary confinement.
(Id. at ¶ 39.)2
II. STANDARD OF REVIEW
The standard for summary judgment is
well-settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may grant a
motion for summary judgment only if “the
movant shows that there is no genuine
dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Gonzalez v.
City of Schenectady, 728 F.3d 149, 154 (2d
Cir. 2013). The moving party bears the
burden of showing that he is entitled to
summary judgment. See Huminski v.
Corsones, 396 F.3d 53, 69 (2d Cir. 2005). “A
party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by: (A) citing to particular parts of materials
in the record, including depositions,
documents,
electronically
stored
information, affidavits or declarations,
stipulations (including those made for
purposes of the motion only), admissions,
interrogatory answers, or other materials; or
(B) showing that the materials cited do not
establish the absence or presence of a genuine
dispute, or that an adverse party cannot
produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1). The Court “‘is
not to weigh the evidence but is instead
required to view the evidence in the light
most favorable to the party opposing
summary judgment, to draw all reasonable
inferences in favor of that party, and to
eschew credibility assessments.’” Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113,
122 (2d Cir. 2004) (quoting Weyant v. Okst,
101 F.3d 845, 854 (2d Cir. 1996)); see
Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986) (summary judgment is
unwarranted if “the evidence is such that a
B. Procedural History
Plaintiff filed his complaint on June 14,
2010, and thereafter, filed an amended
complaint on February 7, 2011. By letter
dated September 19, 2011, plaintiff requested
a stay of the civil proceeding pending the
resolution of his criminal case; the Court
granted this request on October 3, 2011. By
letter dated February 10, 2014, plaintiff
informed the Court that his criminal case had
concluded and requested that his civil action
be reopened; the Court granted this request
and reopened the case on March 3, 2014. On
November 24, 2015, defendants filed their
motion for partial summary judgment.
Plaintiff filed his opposition on January 19,
2016, and defendants filed their reply on
February 2, 2016. The Court has fully
considered the parties’ submissions.
regarding his treatment at SCCF. (See Ex. A to Pl.’s
Opp’n.)
2
Plaintiff did not submit a 56.1 Statement in
connection with his opposition. However, with his
opposition to defendants’ motion, plaintiff enclosed
several letters that he sent to various officials
2
reasonable jury could return a verdict for the
nonmoving party”).
also Hughes v. Rowe, 449 U.S. 5, 9 (1980)
(“It is settled law that the allegations of [a pro
se] complaint, ‘however inartfully pleaded’
are held ‘to less stringent standards than
formal pleadings drafted by lawyers.’”
(quoting Haines v. Kerner, 404 U.S. 519, 520
(1972))). Nonetheless, “[p]roceeding pro se
does not otherwise relieve a litigant of the
usual requirements of summary judgment,
and a pro se party’s bald assertions
unsupported by evidence, are insufficient to
overcome a motion for summary judgment.”
Rodriguez v. Hahn, 209 F. Supp. 2d 344, 348
(S.D.N.Y. 2002) (internal quotation marks
and citation omitted).
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must come
forward with specific facts showing that there
is a genuine issue for trial.’” Caldarola v.
Calabrese, 298 F.3d 156, 160 (2d Cir. 2002)
(alteration in original) (quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87 (1986)). As the Supreme
Court stated in Anderson, “[i]f the evidence
is merely colorable, or is not significantly
probative, summary judgment may be
granted.” 477 U.S. at 249-50 (internal
citations omitted). Indeed, “the mere
existence of some alleged factual dispute
between the parties alone will not defeat an
otherwise properly supported motion for
summary judgment.” Id. at 247-48. Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must set
forth “‘concrete particulars’” showing that a
trial is needed. R.G. Grp., Inc. v. Horn &
Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984)
(quoting SEC v. Research Automation Corp.,
585 F.2d 31, 33 (2d Cir. 1978)). Accordingly,
it is insufficient for a party opposing
summary judgment “‘merely to assert a
conclusion without supplying supporting
arguments or facts.’” BellSouth Telecomms.,
Inc. v. W.R. Grace & Co.-Conn., 77 F.3d 603,
615 (2d Cir. 1996) (quoting Research
Automation Corp., 585 F.2d at 33).
III. DISCUSSION
Defendants move for partial summary
judgment, arguing that (1) plaintiff’s claims
regarding the 2006 incident are time-barred,
and (2) plaintiff cannot recover against
defendants Ewald and DeMarco because
there is no evidence of supervisory liability.
For the reasons set forth below, the Court
concludes that plaintiff’s claims regarding
the 2006 incident are time-barred and must be
dismissed, and that because there is no
evidence of supervisory liability, plaintiff’s
claims against defendants Ewald and
DeMarco must also be dismissed.
A. Statute of Limitations
1. Legal Standard
There exists no federal statute of
limitations for Section 1983 claims. Instead,
federal courts considering Section 1983
claims apply the forum state’s general or
residual statute for personal injury actions.
Owens v. Okure, 488 U.S. 235, 249-50
(1989). In New York, Section 214 of the New
York Civil Practice Law and Rules sets forth
a three-year statute of limitations for actions
“to recover upon a liability, penalty or
forfeiture created or imposed by statute.”
When considering a dispositive motion
made by or against a pro se litigant, the Court
must “liberally construe pleadings and briefs
submitted by pro se litigants, reading such
submissions to raise the strongest arguments
they suggest.” Bertin v. United States, 478
F.3d 489, 491 (2d Cir. 2007) (internal
quotation marks and citations omitted); see
3
N.Y. C.P.L.R. § 214(2). New York law also
determines “whether the limitations period
has been tolled, unless state tolling rules
would ‘defeat the goals’ of section 1983.”
Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir.
2007) (citing Pearl v. City of Long Beach,
296 F.3d 76, 80 (2d Cir. 2002)). Federal law
determines when such claims accrue, and the
Second Circuit has held that accrual of a
Section 1983 claim occurs when the plaintiff
“knows or has reason to know of the injury
which is the basis of his action.” Singleton v.
City of New York, 632 F.2d 185, 191 (2d Cir.
1980); see also Pearl, 296 F.3d at 80.
held that the continuing violation doctrine
can apply to Eighth Amendment claims of
medical indifference brought under Section
1983, Shomo v. City of New York, 579 F.3d
176, 179 (2d Cir. 2009), and Eighth
Amendment claims for cruel and unusual
punishment against federal officials brought
under Bivens. Gonzalez v. Hasty, 802 F.3d
212, 224 (2d Cir. 2015).
However, the continuing violation
doctrine applies only to claims “composed of
a series of separate acts that collectively
constitute one unlawful practice.” Gonzalez,
802 F.3d at 220 (alteration and internal
quotation marks omitted). Here, plaintiff
challenges two separate incidents involving
excessive force and subsequent discipline –
the first occurring in June 2006 and the
second occurring in July 2007 – in which
different officers were involved. Thus,
because plaintiff’s claims were discrete,
separate acts, the continuing violation
doctrine does not apply. See, e.g., Albritton v.
Morris, No. 13-CV-3708 (KMK), 2016 WL
1267799, at *11 (S.D.N.Y. Mar. 30, 2016)
(finding allegations that, in 2008, officer
“threatened Plaintiff with a ‘busted open’
head if he continued to file grievances” and
that, in 2010, the same officer told plaintiff to
stop filing grievances and that “inmates never
win grievances even if they are in the right”
were “best characterized as discrete acts,
rather than a continuing violation”).
2. Application
Plaintiff’s initial complaint was filed on
June 14, 2010, and his amended complaint,
which for the first time includes the claims
relating to the June 8, 2006 incident, was filed
on February 7, 2011. Plaintiff does not
disagree that the applicable statute of
limitations is three years, but rather, argues
that “[t]he 2007 incident is a continuation of
the 2006 incident.” (Pl.’s Opp’n at 2.)
Under the continuing violation theory, a
claim that challenges a “continuous practice
and policy of discrimination” may not accrue
until the last discriminatory act in furtherance
of the policy. See Fahs Construction Grp.,
Inc. v. Gray, 725 F.3d 289, 292 (2d Cir.
2013). “To trigger such a delay, the plaintiff
must allege both the existence of an ongoing
policy of discrimination and some non-timebarred acts taken in furtherance of that
policy.” Id. (quotation marks and citation
omitted). However, “discrete acts of
discrimination or retaliation” are not subject
to the continuing violation doctrine. Colvin v.
State Univ. Coll. at Farmingdale, No. 13CV-3595 (SJF)(ARL), 2014 WL 2863224, at
*17
(E.D.N.Y.
June
19,
2014),
reconsideration denied, No. 13-CV-3595
(SJF)(ARL), 2015 WL 2213297 (E.D.N.Y.
May 8, 2015). The Second Circuit has also
Although not raised by plaintiff, the
Court also has considered whether the
doctrine of equitable tolling applies. With
respect to equitable tolling in Section 1983
actions, it is well-settled that federal courts
should borrow the forum state’s tolling rules.
See Pearl, 296 F.3d at 80 (citing Bd. of
Regents v. Tomanio, 446 U.S. 478, 484-86,
(1980)); accord Keating v. Carey, 706 F.2d
377, 382 (1983). As the Second Circuit has
explained, New York courts have adopted the
same equitable tolling doctrine that exists
4
under federal law. Keating, 706 F.2d at 382.
“Equitable tolling allows courts to extend the
statute of limitations beyond the time of
expiration as necessary to avoid inequitable
circumstances.” Johnson v. Nyack Hosp., 86
F.3d 8, 12 (2d Cir. 1996). Thus, the Second
Circuit “has applied the doctrine ‘as a matter
of fairness’ where a plaintiff has been
‘prevented in some extraordinary way from
exercising his rights, or h[as] asserted his
rights in the wrong forum.’” Johnson, 86
F.3d at 12 (quoting Miller v. Int’l Tel. & Tel.
Corp., 755 F.2d 20, 24 (2d Cir. 1985))
(alteration
in
original).
However,
“[e]quitable tolling requires a party to pass
with reasonable diligence through the period
it seeks to have tolled.” Johnson, 86 F.3d at
12. For example, under the equitable tolling
doctrine, “when the defendant fraudulently
conceals the wrong, the time does not begin
running until the plaintiff discovers, or by the
exercise of reasonable diligence should have
discovered, the cause of action.” Keating,
706 F.2d at 382.
finding no basis for equitable tolling);
Mitchell v. Bell, No. 9:04-CV-1490, 2006
WL 3043126, at *5-6 (N.D.N.Y. Oct. 23,
2006) (same). As the Second Circuit has
noted, “[t]hough plaintiffs might find the
result harsh, the ‘harshness . . . is largely a
self-inflicted wound.’” Johnson, 86 F.3d at
13 (quoting ILGWU Nat’l Retirement Fund v.
Levy Bros. Frocks, Inc., 846 F.2d 879, 887
(2d Cir. 1988)).
Therefore, because the 2006 incident is
plainly outside the three-year statute of
limitations, and neither the continuing
violation doctrine nor equitable tolling apply,
plaintiff’s claims relating to the 2006 incident
are barred by the statute of limitations.
B. Supervisory Liability
1. Legal Standard
“[I]t is well settled in this Circuit that
personal involvement of defendants in
alleged constitutional deprivations is a
prerequisite to an award of damages under
§ 1983.” Provost v. City of Newburgh, 262
F.3d 146, 154 (2d Cir. 2001) (citation and
quotation marks omitted). In other words,
“supervisor liability in a § 1983 action
depends on a showing of some personal
responsibility, and cannot rest on respondeat
superior.” Hernandez v. Keane, 341 F.3d
137, 144 (2d Cir. 2003). Supervisory liability
can be shown in one or more of the following
ways: “(1) actual direct participation in the
constitutional violation, (2) failure to remedy
a wrong after being informed through a report
or appeal, (3) creation of a policy or custom
that sanctioned conduct amounting to a
constitutional violation, or allowing such a
policy or custom to continue, (4) grossly
negligent supervision of subordinates who
committed a violation, or (5) failure to act on
information indicating that unconstitutional
acts were occurring.” Id. at 145 (citation
omitted).
In the instant case, there is absolutely no
basis to apply the doctrine of equitable
tolling. Plaintiff was clearly aware of the
allegedly unconstitutional conduct in 2006,
as demonstrated by the letters he sent to
several individuals, including DeMarco, in
2006. In these letters, plaintiff indicates that
he was “assaulted by [SSCF] employees” and
subjected to “excessive force.” (Pl.’s Opp’n
at 12, 18.) Thus, plaintiff was plainly aware
of the incident of which he now complains in
2006. Further, plaintiff has failed to provide
to the Court any facts that could give rise to
equitable tolling. Under these circumstances,
the Court finds that plaintiff failed to act with
reasonable diligence in pursuing his claim
during the three-year period and, therefore,
that there are no grounds for equitable tolling.
See, e.g., Nicolosi v. City of New York, No.
04-CV-82 (DAB), 2006 WL 3392736, at *34 (S.D.N.Y. Nov. 20, 2006) (dismissing
Section 1983 claims as time-barred and
5
2. Analysis
citation omitted)); Rodriguez v. Rock, No.
9:13-CV-01106 (DNH), 2015 WL 5147045,
at *6 (N.D.N.Y. Sept. 1, 2015) (“[I]t is wellestablished that a supervisor’s failure to
respond to a letter of complaint does not
provide a sufficient basis to find that the
defendant was personally involved in the
deprivation alleged.”) (collecting cases).
Therefore, because plaintiff has pointed to no
evidence indicating personal involvement by
Sheriff DeMarco, the claims against him
must be dismissed.
As defendants argue, plaintiff has not
pointed to any evidence that DeMarco or
Ewald engaged in conduct for which they
could be held liable under Section 1983.
Plaintiff’s only evidence of involvement on
the part of DeMarco is that: (1) plaintiff sent
a letter to the “Suffolk County Sheriff” dated
July 3, 2006, claiming that he had “been
assaulted by some of your employees,” that
“some of [his] equal treatment rigths (sic)
have been violated,” and that he was “dealing
with retaliation,” (Pl.’s Opp’n at 12-13); (2)
on August 4, 2007, plaintiff sent DeMarco a
letter to “notify [him] of obvious violations
of Title 9 (minimum standards), equal
treatment laws, ethical guidelines, civil
service and healthcare professional oaths,
and some just immoral acts,” (id. at 30); and
(3) on September 4, 2007, plaintiff sent
DeMarco a letter alleging that he had “been
set up and jumped by several of your
employees (C.O. Frank Mele [Badge # 1072]
Douglas Gublosi, and Others) on 07-18-07”
and that he had been “assaulted by [C.O.
1177] and several others July 6.” (Id. at 40.)3
The mere fact that DeMarco was informed of
the assaults after they occurred is insufficient
to state a claim for supervisory liability under
Section 1983. See, e.g., Rahman v. Fisher,
607 F. Supp. 2d 580, 585 (S.D.N.Y. 2009)
(holding that plaintiff failed to state a claim
for supervisory liability where he sent each
supervisory defendant a letter informing
them of an assault after it happened because
“[r]eceipt of notice after the violation is
insufficient
to
constitute
personal
involvement in the violation”); Sharma v.
D’Silva, No. 14-CV-6146 (NSR), 2016 WL
319863, at *8 (S.D.N.Y. Jan. 25, 2016)
(“[T]he receipt of letters or grievances, by
itself, does not amount to personal
involvement.” (internal quotation marks and
Plaintiff also has not pointed to evidence
of any personal involvement whatsoever by
Ewald. Plaintiff merely alleges, in his
amended complaint, that Ewald “was made
fully aware of the ongoing capricious and
arbitrary acts of those under his command at
the Suffolk County jail, through several
complaints and grievances made by your
plaintiff but defendant failed to act to protect
this plaintiff from the brutal and barbaric acts
of all of the foregoing named defendants.”
(Am. Compl. ¶ 45.) Because plaintiff has
offered no evidence of personal involvement
by Ewald, the claims against him must be
dismissed. See, e.g., Elliott v. City of
Hartford, -- F. App’x --, No. 14-3633-CV,
2016 WL 2909335, at *2 (2d Cir. May 19,
2016) (affirming district court’s grant of
summary judgment on supervisory liability
claim where plaintiff “failed to produce any
evidence to demonstrate that [defendant] was
personally involved”); Diaz v. City of New
York, No. 00-CV-2944 (JMA), 2006 WL
3833164, at *8 (E.D.N.Y. Dec. 29, 2006)
(granting defendants’ motion for summary
judgment where “[p]laintiffs have provided
no evidence that the captain participated in
any constitutional violation, was informed of
the wrongful acts alleged by the plaintiffs,
created or allowed a custom or policy
amounting to a constitutional violation,
3
In his September 4, 2007 letter, plaintiff states that
“this is my fourth letter to your office.” (Id. at 40.)
However, plaintiff has only offered evidence of the
three letters cited in connection with his opposition.
6
negligently supervised his subordinates, or
failed to act on information indicating that
unconstitutional acts were occurring”);
Patterson v. Lilley, No 02-CV-6056 (NRB),
2003 WL 21507345, at *7 (S.D.N.Y. June 30,
2003) (granting summary judgment on
supervisory liability claim where plaintiff did
not present any facts indicating that
supervisor created an unconstitutional
custom or policy or was grossly negligent in
supervising his subordinates); Ziemba v.
Thomas, 390 F. Supp. 2d 136, 146 (D. Conn.
2005) (“The court concludes that plaintiff has
not met his burden to demonstrate the
existence of a genuine issue of material fact
regarding
defendant[’s]
notice
of
unconstitutional acts being committed by
prison staff against plaintiff. The plaintiff has
put forth no affidavits, pleadings,
depositions, answers to interrogatories, or
admissions on file from which a reasonable
trier of fact would be able to conclude that
[defendant] had actual or constructive notice
of
his
subordinates
committing
constitutionally prohibited acts against
plaintiff.”) Thus, because there is no
evidence of any personal involvement by
Ewald for which he could be held liable, the
claims against him must be dismissed.
SO ORDERED.
_______________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 1, 2016
Central Islip, NY
*
*
*
Plaintiff proceeds pro se. Defendants are
represented by Arlene S. Zwilling, Suffolk
County Attorney, P.O. Box 6100, H. Lee
Dennison Building – Fifth Floor, 100
Veterans Memorial Highway, Hauppauge,
NY 11788.
IV. CONCLUSION
For the reasons set forth herein,
defendants’ motion for partial summary
judgment is granted. Plaintiff’s claims arising
out of the June 8, 2006 incident against all
defendants, and plaintiff’s claims against
defendants DeMarco and Ewald are
dismissed with prejudice. The parties shall
submit a proposed Joint Pretrial Order to the
Court on the remaining claims on or before
September 30, 2016.
7
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