Munsch v. Evans et al
Filing
13
ORDER granting 6 Motion to Dismiss for Failure to State a Claim. For the reasons set forth in the attached Memorandum and Order, IT IS HEREBY ORDERED that the defendants' motion to dismiss is granted. The Clerk of the Court shall enter judgment accordingly and close the case. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/17/2012. (O'Neil, Jacquelyn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-CV-2271 (JFB)(ETB)
_____________________
ROBERT MUNSCH,
Plaintiff,
VERSUS
ANDREA W. EVANS, CHAIRWOMAN OF THE NEW YORK STATE DIVISION OF PAROLE,
WALTER WILLIAM SMITH, JR., JAMES FERGUSON, CHRISTINA FERDANDEZ, G. KEVIN
LUDLOW, GERALD J. GREENAN, LISA BETH ELOVICH, HENRY LEMONS, SALLY
THOMPSON, MICHAEL A. HAGLER, MARY ROSS, JOSEPH CRANGLE, AND JARED
BROWN, AS MEMBERS OF THE NEW YORK STATE DIVISION OF PAROLE,
Defendants.
___________________
MEMORANDUM AND ORDER
February 17, 2012
___________________
Plaintiff alleges that his rights were violated
by the conditions of his supervision placed
on him by the defendants. Specifically,
plaintiff contends that the conditions of
parole established by the New York State
Division of Parole, when he moved to New
York and his supervision as a sex offender
was transferred from New Jersey to the New
York State Division of Parole, were grossly
disproportionate and irrational, and thus
violated his constitutional rights. Plaintiff’s
complaint seeks relief in the form of
$150,000.00 and an order enjoining
defendants from enforcing the present
conditions of plaintiff’s supervision. At oral
argument, plaintiff withdrew his claims for
monetary relief.
Joseph F. Bianco, District Judge:
Plaintiff Robert Munsch (“plaintiff” or
“Munsch”) filed this action against
defendants Andrea W. Evans, Chairwoman
of the New York State Division of Parole,
Walter William Smith, Jr., James Ferguson,
Christina Ferdandez, G. Kevin Ludlow,
Gerald J. Greenan, Lisa Beth Elovich, Henry
Lemons, Sally Thompson, Michael A.
Hagler, Mary Ross, Joseph Crangle, and
Jared Brown, as members of the New York
State Division of Parole (collectively the
“defendants”), alleging that the defendants
violated his Eighth Amendment and
Fourteenth Amendment rights pursuant to
42 U.S.C. § 1983 (“Section 1983”).
1
Moreover, there is no basis for equitable
tolling. Although plaintiff urges that this
Court adopt the “continuing violation”
doctrine to extend the statute of limitations
because he continues to be under
supervision, that doctrine has no application
in this context. Accordingly, the complaint
is dismissed in its entirety.
Defendants have moved to dismiss the
complaint, pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, and argue
that plaintiff’s claims are barred by the
doctrines of res judicata, collateral estoppel,
full faith and credit and Rooker-Feldman.
Moreover, defendants argue that plaintiff’s
claims are barred by the statute of
limitations and, in any event, the defendants
are entitled to qualified immunity and
Eleventh Amendment immunity. In the
alternative, defendants also argue that this
action should be dismissed, pursuant to
Rules 12(b)(7) and 19 of the Federal Rules
of Civil Procedure because the New Jersey
Sentencing Judge and the District Attorney
in New Jersey are necessary parties to this
action and have not been joined, and only a
New Jersey State Court has jurisdiction over
the length of the period of plaintiff’s
supervision.
I.
BACKGROUND
A.
Facts
The following facts are taken from the
complaint, as well as public records (of
which the Court can take judicial notice),
and are not findings of fact by the Court.
Instead, the Court assumes these facts to be
true for purposes of deciding the pending
motion to dismiss and will construe them in
a light most favorable to plaintiff, the nonmoving party.
For the reasons set forth below, the
motion is granted and the complaint is
dismissed in its entirety. First, plaintiff’s
claims are barred by the doctrines of res
judicata, collateral estoppel, full faith and
credit and Rooker-Feldman.
Plaintiff
brought a motion in state court which,
among other things, challenged the
constitutionality of the same conditions of
supervision being challenged in this lawsuit.
The Nassau County Court rejected those
constitutional challenges, and plaintiff did
not appeal. Plaintiff now seeks to argue that
the Nassau County Court did not have
jurisdiction to make that ruling. However,
the Second Circuit has explicitly held that
the Rooker-Feldman doctrine does not
permit a losing state court party to argue that
the state court was without jurisdiction to
make the ruling. Second, the claims are
clearly barred by the statute of limitations.
The conditions at issue were imposed in
2006, and plaintiff did not bring this lawsuit
within the requisite three-year period.
On August 16, 2001, plaintiff was
arrested for masturbating under an Atlantic
City boardwalk in New Jersey which was
reportedly within the view of two boys, ages
11 and 8, who were visiting the beach with
the father of one of them. (Compl. at ¶ 5.)
Plaintiff pleaded guilty to Endangering the
Welfare of a Child in the Third Degree
under New Jersey law, New Jersey Statutes
Annotated, New Jersey Code of Criminal
Justice, 2C24-4(a). (Id.)
Plaintiff was
sentenced to an 18 month term of probation.
(Id.) Under New Jersey law, the judge was
required to impose a sentence of
“community supervision for life” following
his term of probation. (Id.)
Plaintiff was a New York resident and,
thus, his probation was supervised by the
Nassau County Probation Department where
he did not receive negative reports, and no
incidents occurred during the probationary
2
period.1 (Id. at ¶ 6.) On February 25, 2004,
plaintiff’s probation ended and the
“community
supervision
for
life”
commenced. (Id.) The New Jersey Board
of Parole supervised and “[m]inimal
conditions of supervision were imposed on
the plaintiff.” (Id.)
parole officer with the address and telephone
number of the other party; (6) plaintiff was
required to carry on his person a log
truthfully detailing all daily events,
including dates, times and places, addresses,
vehicle information, as well as naming any
persons with whom he came in contact, for
review by his parole officer; (7) plaintiff
was required to abstain from the use of all
alcoholic beverages nor could he frequent
any establishment that sold alcoholic
beverages for onsite consumption; (8)
plaintiff was forbidden to purchase or
possess photographic or video equipment
with the prior knowledge and permission of
his parole officer; (9) plaintiff was forbidden
to possess a beeper, scanner or cellphone;
and (10) plaintiff was forbidden to rent,
operate or be a passenger in any rented
vehicle. (Id.) Plaintiff has written the
Division requesting modification of these
conditions, but the Division has not taken
any action to change or modify these
conditions.3 (Id. at ¶ 8.)
On May 24, 2006, the “community
supervision for life” condition was
transferred to the New York State Division
of Parole to administer.2 (Id. at ¶ 7.) The
Division imposed the following conditions:
(1) a curfew requiring plaintiff to stay home
from 7:00 p.m. to 7:00 a.m.; (2) no
unauthorized visitations were allowed
without prior approval by or knowledge of
plaintiff’s parole officer; (3) plaintiff could
only drive a motor vehicle to and from
employment, sex abuse counseling sessions,
other mandated treatment programs and to
and from meetings with his parole officer;
(4) plaintiff could not enter or be within
1000 feet of places where children
congregate, such as toy stores, park,s pet
stores, schools, playgrounds, video galleries,
bike trails, skating rinks, amusement parks,
bowling alleys, pool halls, etc., without the
prior approval of plaintiff’s parole officer;
(5) plaintiff was required to inform his
parole officer when he established a
relationship with another person, was
require to inform the other party of his prior
criminal history in the presence of the parole
officer, and was required to provide the
B.
The Nassau County Court Action
On January 19, 2010, plaintiff made a
motion under the criminal docket number
assigned to his Nassau County case and
changed the subject matter jurisdiction on
the caption to the “Supreme Court of Nassau
County.” (Pack Aff. ¶ 5; Defs.’ Ex. H.) The
motion sought: “1. The discharge of the
defendant from ‘Lifetime supervision’ by
the New York State Division of Parole as a
violation of the defendant’s due process and
equal protection rights under the Fourteenth
Amendment of the United States
Constitution [and] 2. An order declaring that
the New York State Division of parole’s
supervision of the defendant violates his due
process right’s [sic].” (Defs.’ Ex. H.)
1
On May 16, 2003, Judge DeRiggi of the Nassau
County Court found plaintiff to be a certified sex
offender pursuant to Section 168-a of the New York
Corrections Law, and his risk assessment level to be
Level 1. (Affirmation of Lori L. Pack dated July 22,
2011 in support of Defendants’ Motion (the “Pack
Aff.” ¶ 2; Defs.’ Ex. D.)
2
This transfer was the result of a request by plaintiff,
on March 15, 2006, that his community supervision
be transferred from New Jersey to New York under
the New York Interstate Compact for Adult Offender
Supervision. (Pack Aff. ¶ 2; Defs.’ Ex. E.)
3
Plaintiff accepted these conditions when he
returned to New York. (Pack. Aff. ¶ 3; Defs.’ Ex. G.)
3
C.
On June 3, 2010, the Honorable Judge
Calabrese of the Nassau County Court
denied plaintiff’s motion. (Defs.’ Ex. I.) In
discussing the Interstate Commission for
Adult Supervision (“ICAOS” or the
“Compact”), the Compact to which both
New York and New Jersey are signatories,
Justice Calabrese stated that:
Procedural History
On May 11, 2011, plaintiff filed his
complaint in this action. Defendants filed
their motion to dismiss on July 29, 2011.
Plaintiff filed his opposition on September
7, 2011. Defendants submitted their reply
on September 28, 2011. Oral argument was
held on November 2, 2011. The Court has
fully considered all of the arguments
presented by the parties.
The Interstate Commission has
promulgated rules which are binding
on all contracting States. Among the
rules is Rule 4.102, which relates to
the duration of supervision in the
receiving state. “A receiving state
shall
supervise
an
offender
transferred under the interstate
compact for a length of time
determined by the sending state.”
The rule has been further refined by
the ICAOS Advisory Opinion 12007 which reads, “This rule does
not permit a receiving state to
provide no supervision and at a
minimum the rules of the Compact
contemplate that such an offender
will be under some supervision for
the duration of the conditions placed
upon the offender by the sending
state under Rule 4.102.” This means
that New York must supervise the
defendant for the length of time
determined by New Jersey, which in
this case that means lifetime
supervision.
II.
STANDARD OF REVIEW
When a court reviews a motion to
dismiss for lack of subject-matter
jurisdiction, it “must accept as true all
material factual allegations in the complaint,
but [it is] not to draw inferences from the
complaint favorable to plaintiffs.” J.S. ex
rel. N.S. v. Attica Cent. Schs., 386 F.3d 107,
110 (2d Cir. 2004). Moreover, the court
“may consider affidavits and other materials
beyond the pleadings to resolve the
jurisdictional issue, but [it] may not rely on
conclusory or hearsay statements contained
in the affidavits.” Id. “The plaintiff bears
the burden of proving subject matter
jurisdiction by a preponderance of the
evidence.”
Aurecchione v. Schoolman
Transp. Sys., Inc., 426 F.3d 635, 638 (2d
Cir. 2005).
When a Court reviews a motion to
dismiss for failure to state a claim for which
relief can be granted, it must accept the
factual allegations set forth in the complaint
as true and draw all reasonable inferences in
favor of the plaintiff. See Cleveland v.
Caplaw Enters., 448 F.3d 518, 521
(2d Cir. 2006); Nechis v. Oxford Health
Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
“In order to survive a motion to dismiss
under Rule 12(b)(6), a complaint must
allege a plausible set of facts sufficient ‘to
raise a right to relief above the speculative
(Id.) Justice Calabrese also acknowledged
that the New York Parole Board has the
discretion to impose additional conditions
on all parolees, especially where that special
condition would have been imposed on an
offender if the sentence had been imposed in
the receiving state. (Id.)
4
defendant’s motion papers if plaintiff has
knowledge or possession of the material and
relied on it in framing the complaint, (4)
public disclosure documents required by law
to be, and that have been, filed with the
Securities and Exchange Commission, and
(5) facts of which judicial notice may
properly be taken under Rule 201 of the
Federal Rules of Evidence.” In re Merrill
Lynch & Co., 273 F. Supp. 2d 351, 356-57
(S.D.N.Y. 2003) (internal citations omitted),
aff’d in part and reversed in part on other
grounds sub nom., Lentell v. Merrill Lynch
& Co., 396 F.3d 161 (2d Cir. 2005), cert.
denied, 546 U.S. 935 (2005); see also
Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 48 (2d Cir. 1991)(“[T]he district
court . . . could have viewed [the
documents] on the motion to dismiss
because there was undisputed notice to
plaintiffs of their contents and they were
integral to plaintiffs’ claim.”); Brodeur v.
City of New York, No. 04 Civ. 1859 (JG),
2005 U.S. Dist. LEXIS 10865, at *9-10
(E.D.N.Y. May 13, 2005) (court could
consider documents within the public
domain on a Rule 12(b)(6) motion to
dismiss)
level.’” Operating Local 649 Annuity Trust
Fund v. Smith Barney Fund Mgmt. LLC, 595
F.3d 86, 91 (2d Cir. 2010) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555
(2007)). This standard does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Twombly, 550
U.S. at 570.
The Supreme Court clarified the
appropriate pleading standard in Ashcroft v.
Iqbal, setting forth a two-pronged approach
for courts deciding a motion to dismiss. 556
U.S. 662, 129 S. Ct. 1937 (2009). The
Court instructed district courts to first
“identify[ ] pleadings that, because they are
no more than conclusions, are not entitled to
the assumption of truth.” Id. at 1950.
Although “legal conclusions can provide the
framework of a complaint, they must be
supported by factual allegations.”
Id.
Second, if a complaint contains “wellpleaded factual allegations, a court should
assume their veracity and then determine
whether they plausibly give rise to an
entitlement to relief.” Id. “A claim has
facial plausibility when the plaintiff pleads
factual content that allows the court to draw
the reasonable inference that the defendant
is liable for the misconduct alleged. The
plausibility standard is not akin to a
‘probability requirement,’ but it asks for
more than a sheer possibility that a
defendant has acted unlawfully.” Id. at 1949
(internal citations omitted) (quoting and
citing Twombly, 550 U.S. at 556-57).
The Court notes that in adjudicating this
motion, it is entitled to consider: “(1) facts
alleged in the complaint and documents
attached to it or incorporated in it by
reference, (2) documents ‘integral’ to the
complaint and relied upon in it, even if not
attached or incorporated by reference, (3)
documents or information contained in
5
III.
A.
habeas corpus. As the Supreme Court held,
the doctrine precludes a district court from
hearing “cases brought by state-court losers
complaining of injuries caused by statecourt judgments rendered before the district
court proceedings commenced and inviting
district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280, 284 125
S. Ct. 1517, 1521-22 (2005); Hoblock v.
Albany Co. Board of Elections, 422 F.3d 77,
83 (2d Cir. 2005).
DISCUSSION
Rooker-Feldman Doctrine4
1.
Standard
The moving defendants argue that the
Rooker-Feldman doctrine bars plaintiff’s
claims because plaintiff is essentially
appealing Judge Calabrese’s decision which
held that the lifetime supervision imposed
did not violate plaintiff’s due process and
equal protections rights and declined to
disband plaintiff’s conditions of his
supervision.
For the reasons set forth
below, the Court finds that plaintiff is barred
by the doctrine of Rooker-Feldman.
The Second Circuit has delineated four
requirements for the application of the
Rooker-Feldman doctrine: (1) “the federalcourt plaintiff must have lost in state court”;
(2) “the plaintiff must complain of injuries
caused by a state-court judgment”; (3) “the
plaintiff must invite district court review and
rejection of that judgment”; and (4) “the
state-court judgment must have been
rendered before the district court
proceedings commenced.” Hoblock, 422
F.3d at 85 (internal citations and quotations
omitted). The Second Circuit has classified
the first and fourth requirements as
“procedural” and the second and third
requirements as “substantive.” See id.
Under the Rooker-Feldman doctrine –
Rooker v. Fid. Trust Co., 263 U.S. 413
(1923), and Dist. of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983) –
a United States District Court has no
authority to review final judgments of a state
court in judicial proceedings, except for
constitutional challenges and reviews
pursuant to an application for a writ of
4
Defendants move to dismiss the complaint pursuant
to Rule 12(b)(6) of the Federal Rules of Civil
Procedure.
However, defendants present an
argument pursuant to the Rooker-Feldman doctrine.
Accordingly, because the defendants’ RookerFeldman argument implicates the Court’s subjectmatter jurisdiction, the motion would be more
appropriately brought under Rule 12(b)(1). See
Alliance for Envtl. Renewal, Inc. v. Pyramid
Crossgates Co., 436 F.3d 82, 88 n. 6 (2d Cir. 2006)
(noting that Second Circuit has considered standing
challenges under both rules in the past but that
12(b)(1) is the more appropriate rule); see also Lance
v. Coffman, 549 U.S. 437, 438 n.* (2007) (explaining
that Rooker Feldman “concerns a district court’s
subject-matter jurisdiction”). In any event, as
discussed above, the Court is independently obligated
to determine whether it has subject-matter
jurisdiction and, accordingly, considers the RookerFeldman argument regardless of which rule the
defendants assert it under.
2.
Application
Here, all four requirements for the
Rooker-Feldman doctrine are met. Plaintiff
brought his motion for relief in state court
before Judge Calabrese and it was denied.
In that decision, Judge Calabrese refrained
from lifting the lifetime supervision
requirement and the conditions imposed by
the New York Parole Board. Plaintiff is
now complaining of the injuries caused by
the state-court judgment, namely that he is
still subjected to the conditions of his
lifetime supervision.
Moreover, Judge
Calabrese issued his decision on June 4,
6
The fact that plaintiff did not specifically
seek relief in state court under the Eighth
Amendment does not alter the Court’s
analysis.
The Second Circuit has
emphasized that the Rooker–Feldman
doctrine provides that lower federal courts
lack subject matter jurisdiction over claims
that “effectively challenge state court
judgments.” Kropelnicki v. Siegel, 290 F.3d
118, 128 (2d Cir. 2002) narrowed on other
grounds by Exxon Mobil Corp. v. Saudi
Basic Indus. Corp., 544 U.S. 280 (2005).
This includes claims that are “inextricably
intertwined” with state court determinations.
Id. (citing Feldman, 460 U.S. at 482-83
n16). In addressing the plaintiff’s due
process and equal protections challenges,
Judge Calabrese has already ruled that the
Parole Board has the discretion to impose
the conditions at issue. Thus, ruling on the
new Eighth Amendment legal theory in the
instant case would require reversing his
judgment that the conditions are legally
permissible. Thus, Rooker-Feldman also
bars the Eighth Amendment claim. See
Hoblock, 422 F.3d at 86 (“presenting in
federal court a legal theory not raised in
state court . . . cannot insulate a federal
plaintiff’s suit from Rooker-Feldman if the
federal suit nonetheless complains of injury
from a state court judgment and seeks to
have that state-court judgment reversed.”)
2010, almost one year prior to plaintiff filing
his complaint in this action.
Plaintiff has also invited the Court to
review and reject the state court decision of
Judge Calabrese.
Plaintiff brought his
motion in state court seeking for the Court to
not only discharge the defendant from his
lifetime supervision on equal protection
grounds, but he also sought an order
declaring that the New York Division of
Parole’s supervision of him violated his due
process rights. In his decision, in addition to
holding that the lifetime supervision cannot
be discharged pursuant to the Compact,
Judge Calabrese also held that the New
York Parole Board was within its discretion
to impose its conditions on the plaintiff.
(Def.’s Ex. I.) As Judge Calabrese stated:
In addition to these, Parole may, in
its discretion, impose additional
conditions, tailored to an individual
parolee (9 NYCRR 8003.2(1) and
8003.3). Moreover, Rule 401.1 of
the Compact provides, “At the time
of acceptance or during the term of
supervision,
the
compact
administrator
or
supervising
authority in the receiving state may
impose a special condition on an
offender transferred under the
interstate compact if that special
condition would have been imposed
on the offender if sentence had been
imposed in the receiving state.”
Plaintiff also attempts to argue that this
Court is not barred by the doctrine of
Rooker-Feldman because the decision by
Judge Calabrese is void for lack of
jurisdiction. Thus, according to plaintiff,
Rooker-Feldman does not bar this action
because the Court must simply ignore the
state court decision. However, this Court
disagrees and finds that the purpose of
Rooker-Feldman is to avoid the type of
review of state court decisions that plaintiff
is now seeking.
Id. Thus, Judge Calabrese has already
decided that the Parole Board was within its
discretion to impose the conditions of the
compact and plaintiff is asking this Court to
review and reject a state court decision in
violation of Rooker-Feldman.
7
may simply ignore the state court ruling, fail
to file an appeal, and then ask the federal
court to ignore a state court decision based
on lack of jurisdiction.
First, the Court notes that plaintiff is
attempting to argue that the decision based
on his motion is void. Plaintiff brought his
motion before the Nassau County Court and
now that he has received an unfavorable
result, he is attempting to argue that the
Court did not have jurisdiction to hear his
motion. This is the very act that RookerFeldman bars.
In fact, the Second Circuit has explicitly
rejected plaintiff’s contention that a party
can avoid Rooker-Feldman by arguing the
state court ruling was void. See Kropelnicki,
290 F.3d at 129 (“[I]f adjudication of a
claim in federal court would require the
court to determine that a state court
judgment was erroneously entered or was
void, the claim is inextricably intertwined
with the merits of the state court
judgment.”), narrowed on other grounds by
Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280 (2005); see also
Swiatkowski v. Citibank, No. 4623-CV-10,
2011 WL 5555856, at *1 (2d Cir. Nov. 16,
2011) (finding Rooker-Feldman doctrine
applied where decision in appellant’s favor
would be “declar[ing] the state court
judgment fraudulently procured and void”)
(citations and quotations omitted); Bikman v.
Fisher, No. 07-CV-2047, 2009 WL 690251,
at *1 (2d Cir. Mar. 17, 2009) (“Appellant
nonetheless asserts that the Rooker-Feldman
doctrine did not apply because the Housing
Court decision was void and rendered
without jurisdiction. Whether the Housing
Court had jurisdiction to enter the judgment
was an argument that Appellant should have
presented on appeal to the Appellate
Division, and she has provided no
explanation for why the argument was not
presented at that time.”).
Moreover, in support of plaintiff’s
argument plaintiff cites a string of cases
from various state appeals courts that hold
that if there is no underlying action, there
can be no motion. (See Pl.’s Opp. Brief at
5.) Plaintiff quotes the case Koplow v. City
of Biddeford, 494 A.2d. 175, 176 (Me. Sup.
Jud. Ct., 1985), which stated:
We hold, in agreement with various
other jurisdictions, that the court
does not have jurisdiction to issue a
temporary restraining order without
the existence of an underlying action.
See, e.g., Smith v. Spitzenberger, 363
N.W.2d 470 (Minn. 1985); Long
Prairie Packing Co. v. United
National Bank, Souix Falls, 338
N.W.2D 838 (S.E. 1983); Carolina
Freight Car Corp. v. Local Union #
61, 11 N.C. App. 159, 180 S.E.2d
461, 463 (1971); see also, Lynch v.
Snepp, 350 F. Supp. 1134, 1140
(W.D.N.C. 1972).
Since no
underlying action had been filed the
Superior
Court
was
without
jurisdiction to hear the motion and
the case must be dismissed.
Similarly, in Thomas and Agnes Carvel
Foundation v. Carvel, Pamela Carvel, inter
alia, attempted to argue that the Westchester
County Surrogate Court’s decisions were
“null and void” for lack of jurisdiction. 736
F. Supp. 2d 730, 765 (S.D.N.Y. 2010). In
addition to finding that Pamela Carvel failed
to state a claim on this ground, the court
(Pl.’s Opp. Brief at 5.) However, unlike the
case at bar, the Koplow case cited by
plaintiff, as well as the cases cited by
Koplow, are cases where a state lower court
decision is being held void in a properly
taken appeal. Plaintiff has failed to present
any law in support of his argument that he
8
same factual grouping as an earlier litigated
claim even if the later claim is based on
different legal theories or seeks dissimilar or
additional relief.” Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994). This
transactional approach “does not . . . permit
a party to remain silent in the first action and
then bring a second one on the basis of a
preexisting claim for relief that would
impair the rights or interests established in
the first action.” Beckford v. Citibank N.A.,
No. 00-CV-205, 2000 WL 1585684, at *3
(S.D.N.Y. Oct. 24, 2000) (quoting Henry
Modell & Co. v. Minister, Elders & Deacons
of Ref. Prot. Dutch Church, 68 N.Y.2d 456,
462 n. 2, 510 N.Y.S.2d 63, 502 N.E.2d 978
(N.Y.1986)). The doctrine applies only if
“(1) the previous action involved an
adjudication on the merits; (2) the previous
action involved the plaintiffs or those in
privity with them; and (3) the claims
asserted in the subsequent action were, or
could have been, raised in the prior action.”
Monahan v. N.Y.C. Dep’t of Corr., 214 F.3d
275, 285 (2d Cir. 2000) (citations omitted).
Finally, “[i]n determining whether a second
suit is barred by this doctrine, the fact that
the first and second suits involved the same
parties, similar legal issues, similar facts, or
essentially the same type of wrongful
conduct is not dispositive.” Maharaj v.
Bankamerica Corp., 128 F.3d 94, 97 (2d
Cir. 1997). “Rather, the first judgment will
preclude a second suit only when it involves
the same ‘transaction’ or connected series of
transactions as the earlier suit.” Id.
Therefore, as the Second Circuit has noted,
“the obvious starting point in a preclusion
analysis is a determination of the issues that
were litigated in the first action.” Flaherty v.
Lang, 199 F.3d 607, 613 (2d Cir. 1999).
Furthermore, in evaluating the res judicata
effect of a prior action, “courts routinely
take judicial notice of documents filed in
other courts, again not for the truth of the
matters asserted in the other litigation, but
held, “[i]n any event this court does not sit
as an appellate body to review decisions of
the state courts.” Id. (citing Exxon Mobil
Corp. v. Saudi Basic Indus. Corp, 544 U.S.
280, 284, 125 S.Ct. 1517, 161 (2005)).
Accordingly, like the situation in the instant
case, the court declined to find that a state
court decision was void for lack of
jurisdiction on Rooker-Feldman grounds. In
short, plaintiff’s argument, that the decision
of the Nassau County Court was without
jurisdiction and thereby void, should have
been addressed in a properly taken appeal by
plaintiff of Judge Calabrese’s decision, and
is
improperly
before
this
Court.
Accordingly, the claim is barred by RookerFeldman.
B.
Res Judicata
In the alternative, the defendants argue
that plaintiff’s claims are barred by res
judicata because plaintiff’s claims have
already been adjudicated, or could have
been adjudicated, in the prior state court
action. As set forth below, the Court agrees.
1.
Standard
The doctrine of res judicata, otherwise
known as claim preclusion, prevents parties
from re-litigating issues in subsequent
litigation that were or could have been
litigated in a prior action. See Allen v.
McCurry, 449 U.S. 90, 94, 101 S.Ct. 411, 66
L.Ed.2d 308 (1980). “In applying the
doctrine of res judicata, [a court] must keep
in mind that a state court judgment has the
same preclusive effect in federal court as the
judgment would have had in state court.”
Burka v. N.Y.C. Transit Auth., 32 F.3d 654,
657 (2d Cir. 1994). Because the prior
decision at issue was rendered by a New
York State court, New York’s transactional
analysis of res judicata governs, an analysis
which “bar[s] a later claim arising out of the
9
rather to establish the fact of such litigation
and related filings.” Kramer v. Time Warner
Inc., 937 F.2d 767, 774 (2d Cir. 1991).
2.
the plaintiff in the prior action, are in privity
with the defendants in this action.
Plaintiff attempts to argue that there is
no privity between the People of the State of
New York and defendants because New
York does not generally consider one actor
in the criminal justice system to be in privity
with another. In support, plaintiff cites to
the case Brown v. City of New York, 60
N.Y.2d 897, 458 N.E.2d 1250, 470
N.Y.S.3d 573 (1983), which held that the
City of New York and the District Attorney
were separate entities and did not stand in a
sufficient relationship to apply the doctrine
of issue preclusion. However, while Brown
did not deal with the issue of whether the
People of the State of New York and parole
boards are in privity, it cited to a case that
did and noted that the case in Brown was
“unlike the situation in People ex rel. Dowdy
v. Smith, 48 N.Y.2d 477, 482, 423 N.Y.S.2d
862, 399 N.E.2d 894 [(1979)].” Id. at 898899. In Dowdy, the court held that “a prior
acquittal based on the defense of entrapment
in a criminal proceeding collaterally estops
the Board of Parole from revoking parole on
the basis of the transactions proved and
admitted in the criminal action.” 48 N.Y.2d
477, 479-80, 423 N.Y.S.2d 862, 399 N.E.2d
894. In that case, the Court of Appeals of
New York specifically stated that:
Application
Defendants argue that both plaintiff’s
equal protection claim and his Eighth
Amendment claim are barred by the doctrine
of res judicata because they were brought, or
could have been brought, before Judge
Calabrese. Plaintiff argues that not only was
the underlying decision by Judge Calabrese
void for lack of jurisdiction and thus cannot
be the basis for res judicata effect, res
judicata does not apply because the
defendants in this case were not in privity
with the plaintiffs of the first case and
because parole board decisions are not
subject to review in New York Courts. This
Court agrees with the defendants and finds
that the plaintiff’s claims are barred by res
judicata.5
First, Judge Calabrese decided plaintiff’s
motion on the merits. Judge Calabrese
determined that based on the Compact, New
York had no authority to remove plaintiff’s
lifetime supervision ban and that New York
was within its rights to impose the additional
conditions of plaintiff’s supervision.
Second, the parties to this action were
the parties in the prior action before Judge
Calabrese or were in privity with them.
Munsch was not only the defendant in the
action but the party that made the motion
that was decided upon. Moreover, this
Court finds that the People of the State of
New York in their prosecutorial capacity,
As to the identity of the parties we
encounter
no
difficulty
in
concluding, as did Supreme Court
and as was not questioned by the
Appellate Division, that for present
purposes the People as prosecutors in
the criminal action stood in sufficient
relationship with the Division of
Parole in the parole proceeding to
meet the requirements of the doctrine
in this respect.
5
The Court has already determined supra that it
cannot review whether or not Judge Calabrese’s
decision is void for lack of jurisdiction. Accordingly,
this Court will not address plaintiff’s argument that
Judge Calabrese’s decision cannot be the basis for res
judicata.
10
they believed that the arresting officer was
mistaken or not truthful and believed the
parolee was truthful when he stated that he
never sold narcotics. Id. Thus, the outcome
involved a determination of an issue of
ultimate fact. Id. Although Jones does
indicate that the People of New York in their
prosecutorial capacity and the Parole Board
are usually not in privity, the reasoning is
inapplicable in this case. Here, the decision
at issue, Judge Calabrese’s decision, is not
related to the determination of the guilt or
innocence of the plaintiff. As discussed
supra, Judge Calabrese’s decision was on a
motion brought by the plaintiff to determine
whether his lifetime supervision and the
conditions imposed by New York violated
his constitutional rights. Accordingly, the
decision dealt directly with the supervision
of the Parole Board and the defendants.
Thus, the reasoning is not applicable and the
defendants and the People of New York are
in privity.
Id. at 482 (citations omitted). Thus, plaintiff
cannot argue, based on Brown, that a parole
board cannot be in privity with the State of
New York in its prosecutorial capacity.
Plaintiff also attempts to rely on People
ex rel Jones v. New York State Division of
Parole, 168 Misc. 2d 937, 646 N.Y.S.2d 611
(Sup. Ct. Bronx Cty. 1996), which held that
the Parole Board was collaterally estopped
from revoking the defendant’s parole
because a Grand Jury did not indict him for
the alleged sale of drugs which was the basis
of his parole violation. In Jones, although
the court found that there was privity
between the District Attorney and the parole
board, the court did state that the District
Attorney and the Parole Board ordinarily are
not in privity:
Thus, when a defendant appears
before a Parole Board for a hearing
on an alleged violation, it is an
administrative proceeding, not a
criminal trial. The parole authorities
have the burden of proving the
defendant’s alleged misconduct only
by a preponderance of the evidence.
The Court also finds that the claims
asserted in this action were, or could have
been, raised in the prior action. First, as
discussed supra, plaintiff previously brought
a claim that his lifetime supervision violated
his equal protection rights and thus the
lifetime supervision must be discharged.
Although plaintiff sought discharge of his
lifetime supervision, rather than a change of
his conditions, the plaintiff did challenge his
lifetime supervision on equal protection
grounds. Thus, his equal protection claim
has already been brought in state court.
By contrast, the purpose of the
criminal trial is to determine the guilt
of the defendant and the prosecution
has the burden of proving such guilt
beyond
a
reasonable
doubt.
Therefore, ordinarily, a finding by a
Parole Board has no effect upon a
subsequent criminal prosecution and
vice versa.
Plaintiff also argues that his Eighth
Amendment claim could not have been
considered by Judge Calabrese because
conditions of the Parole Board are not
subject to review by the state courts. In
support of his argument, plaintiff relies on
New York Executive Law Section 259-i(5)
which states, “Actions of the board. Any
Id. (citations omitted).
Despite this
statement, which the plaintiff heavily relies
on in his papers, the Bronx County Court
relied on Dowdy and found that privity
existed for collateral estoppel purposes. Id.
at 941. The court found that the Grand Jury
could only have refused to indict because
11
action by the board or by a hearing officer
pursuant to this article shall be deemed a
judicial function and shall not be reviewable
if done in accordance with law.” Here,
plaintiff, in both this action and his prior
motion before Judge Calabrese, is alleging
that the Parole Board did not act in
accordance with the law by violating his
constitutional rights. Plaintiff has provided
no explanation for why he would be
permitted to bring his equal protection and
due process claims in state court before
Judge Calabrese, but not his Eighth
Amendment claim. In other words, there
was nothing preventing plaintiff from
asserting the Eighth Amendment claim
before Judge Calabrese in conjunction with
his due process and equal protection
challenges. Thus, plaintiff’s argument is
inapplicable to the situation at hand.6
Moreover, plaintiff brings his claim of
an Eighth Amendment violation pursuant to
Section 1983. However, the Supreme Court,
in Migra v. Warren City School District
Board of Educators, held that a plaintiff who
failed to raise a Section 1983 claim in an
earlier state court litigation, but could have,
is barred from bringing that case in the
subsequent federal litigation. 465 U.S. 75,
83 (1984). In Migra, the plaintiff failed to
raise her Section 1983 claims in an earlier
Ohio state court proceeding. Id. In holding
that plaintiff’s failure to bring her Section
1983 claim in the previous action barred her
from bringing the claim in federal court, the
Supreme Court stated:
In the present litigation, petitioner
does not claim that the state court
would not have adjudicated her
federal claims had she presented
them in her original suit in state
court. Alternatively, petitioner could
have obtained a federal forum for her
federal claim by litigating it first in a
federal court.
Section 1983,
however, does not override state
preclusion law and guarantee
petitioner a right to proceed to
judgment in state court on her state
claims and then turn to federal court
for adjudication of her federal
claims. We hold, therefore, that
petitioner’s state-court judgment in
this litigation has the same
preclusive effect in federal court that
the judgment would have in the Ohio
state courts.
6
Plaintiff cites to the New York Court Appeals
decision in In re Salvatore Briguglio v. New York
State Board of Parole, which was a case decided
under the previous version of the statute, which stated
that “so long as the Board violates no positive
statutory requirement, its discretion is absolute and
beyond review of any court.” 24 N.Y.2d 21, 29
(1969) (citing In re Hines v. State Board of Parole,
293 N.Y. 253, 257 (1944)). In more recent state
court cases, in relying on Briguglio, it has been held
that “[i]f the condition is rationally related to the
inmate’s past conduct and further chances of
recidivism, Supreme Court has no authority to
substitute its own discretion for that of the
individuals in charge of designing the terms of a
petitioner’s parole release.” Williams v. New York
State Div. of Parole, 71 A.D.3d 524, 525, 899
N.Y.S.2d 146, 148 (N.Y. App. Div. 2010) (citing
Matter of M.G. v. Travis, 232 A.D.2d at 169, 667
N.Y.S.2d 11; Matter of Gerena v. Rodriguez, 192
A.D.2d 606, 596 N.Y.S.2d 143 (1993); Matter of
Dickman v. Trietley, 268 A.D.2d 914, 915, 702
N.Y.S.2d 449 (2000)). Thus, while great discretion
must be afforded the decisions of the parole board, a
parole board is not free to violate the law by
imposing irrational or “cruel and unusual” conditions.
Accordingly, while a parole board is granted great
discretion, plaintiff’s contention that New York
Executive Law Section 259-i(5) would have
prevented plaintiff from bringing a valid Eighth
Amendment claim in any state court is without merit.
Id. at 84-85. Thus, plaintiff could have
brought his Eighth Amendment claims in his
motion before Judge Calabrese when he was
challenging his lifetime supervision and the
conditions imposed on equal protection and
due process grounds.
Accordingly,
12
Defendants argue that the plaintiff’s
claim accrued on or near December of 2006
when the conditions that are being
challenged were imposed on the plaintiff.7
Accordingly, plaintiff’s claim would be
untimely. Plaintiff argues that the complaint
is timely because plaintiff has been affected
every single day of his life and, thus, the
“continuing violation” doctrine applies and
the statute of limitations is tolled. For the
reasons set forth below, the Court finds that
plaintiff’s argument is without merit and that
the plaintiff’s claims are untimely.
plaintiff’s claims are barred by the doctrine
of res judicata.
C. Statute of Limitations
There exists no federal statute of
limitations within which claims under
Section 1983 must be brought. See Wilson
v. Garcia, 471 U.S. 261, 266-267, 105 S.Ct.
1938 (1985), superseded by statute on other
grounds as recognized in Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 377–
81, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004).
“[W]here state law provides multiple
statutes of limitations for personal injury
actions, courts considering Section 1983
claims should borrow the general or residual
statute for personal injury actions.” Owens v.
Okure, 488 U.S. 235, 250, 109 S.Ct. 573
(1989). In New York, pursuant to New
York Civil Practice Law and Rules Section
214, a three year statute of limitations exists
“to recover upon a liability, penalty or
forfeiture created or imposed by statute.”
N.Y.C.P.L.R. § 214(2).
Plaintiff first attempts to analogize his
case to a series of employment
discrimination cases in which the continuing
violation doctrine was applied because the
plaintiff experienced a continuous practice
and policy of discrimination. (See Pl.’s
Opp. Brief at 17 (citing Washington v.
County of Rockland, 373 F. 3d 310, 317-18
(2d Cir. 2004) (quoting Fitzgerald v.
7
Plaintiff’s complaint states that “On May 24, 2006,
the ‘community supervision for life’ condition was
transferred to the New York State Division of Parole
to administer. Although there was no intervening
misconduct by Mr. Munsch during the entire period
from August, 2001 to May 2006, the Division
imposed much more restrictive conditions upon him.”
(Pl.’s Compl. at ¶ 7.) Plaintiff also annexes as a part
of Exhibit “A” to his complaint a document dated
May 24, 2006 and titled “State of New York
Executive Department – Division Of Parole Special
Conditions Of Release To Parole Supervision.” (Id.
at Ex. “A”.)
In this document, plaintiff
acknowledges the special conditions being imposed
on him that he is now challenging. (Id.) Thus, it
appears that plaintiff was aware of the conditions
being imposed on him, and that said conditions were
imposed on him, as of May 24, 2006. However,
defendants assert that the conditions were not
imposed until on or about December 2006.
(Defs.’Brief at 16.) In plaintiff’s brief, plaintiff does
not dispute the December 2006, date but argues that
the continuing violation rule applies. (Pl.’s Opp.
Brief at 16.) Regardless, the Complaint is untimely
whether the statute of limitations began to run on
May 24, 2006 or December 2006. Therefore, the
Complaint is time barred.
Federal law determines when such
claims accrue, but New York law then
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)). The
Second Circuit has ruled 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.” See
Singleton v. City of New York, 632 F.2d 185,
191 (2d Cir. 1980) cert. denied, 450 U.S.
920 (1981); see also Shomo v. City of New
York, 579 F.3d 176, 181 (2d Cir. 2009) (“A
Section 1983 claim ordinarily accrues when
the plaintiff knows or has reason to know of
the harm.).
13
The rationale behind applying the
continuing violation exception to the statute
of limitations does not apply to the case at
hand.
Unlike in the employment
discrimination context cited by plaintiff,
here, plaintiff did not suffer a series of
individual acts which when taken together
amount to a violation of plaintiff’s rights.
Plaintiff only cited one specific incident, the
imposition of the conditions of his
supervision imposed in New York. Thus,
plaintiff’s argument is without merit.
Henerson, 251 F.3d 345, 359 (2d Cir. 2001))
and Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).) However, the
plaintiff’s argument is without merit.
In the employment discrimination
context, “[i]f a plaintiff has experienced a
continuous practice and policy of
discrimination, . . . the commencement of
the statute of limitations period may be
delayed until the last discriminatory act in
furtherance of it.” Washington, 373 F.3d at
317-18 (quoting Fitzgerald, 251 at 359). In
that context, “[c]onduct that has been
characterized as a continuing violation is
‘composed of a series of separate acts that
collectively constitute one unlawful
employment practice.’” Id. at 318 (quoting
Nat’l R.R. Passenger Corp. 536 U.S. at
111). As stated by the Southern District of
New York
Plaintiff also attempts to rely on the case
Shomo v. City of New York, 579 F.3d 176
(2d Cir. 2009), for the proposition that the
continuing violation doctrine applies to his
claims. However, this reliance is misplaced.
In Shomo, the court dealt with a prisoner
claiming deliberate indifference to a serious
medical need. Id. The Court held that the
“[c]ontinuing violation doctrine can apply
when a prisoner challenges a series of acts
that together comprise an Eighth
Amendment claim of deliberate indifference
to serious medical needs.” Id. at 182.
However, the court clarified and stated:
The continuing violation exception
to the statute of limitations is
“designed
to
‘accommodate
plaintiffs who can show that there
has been a pattern or policy of
discrimination
continuing
from
outside the limitations period into the
statutory limitations period, so that
all discriminatory acts committed as
part of this pattern or policy can be
considered . . . timely.’” . . . The
chief purpose of the doctrine is to
protect the rights of plaintiffs where
‘the earlier discrimination may only
be recognized as actionable in the
light of ‘events that occurred later.
[t]hat the continuing violation
doctrine can apply, however, does
not mean it must. To assert a
continuing violation for statute of
limitations purposes, the plaintiff
must ‘allege both the existence of an
ongoing policy of [deliberate
indifference to his or her serious
medical needs] and some non-time
barred acts taken in the furtherance
of that policy.’
Keddy v. Smith Barney, Inc., No. 96 Civ.
2177 (DAB)(SEG), 2000 WL 193625, at *3
(S.D.N.Y Feb. 16, 2000) (citing Hardin v.
S.C. Johnson & Son, Inc., 167 F.3d 340, 344
(7th Cir. 1999), cert. denied, 120 S.Ct. 178
(1999)).
Id. (emphasis in original) (citing Harris v.
City of New York, 186, F.3d 243, 250 (2d
Cir. 1999).
14
continuing violation theory. Accordingly,
this argument is also without merit.
First, Shomo did not indicate that the
continuing violation theory is applicable to
all Eighth Amendment claims. It merely
extended the application of the continuing
violation theory to deliberate indifference
claims that were based on cumulative
medical acts over time constituting, in their
totality, a constitutional violation. That
analysis has no application to the instant
situation. There are no cumulative acts;
rather, the challenged act is the imposition
of the conditions in 2006 – a singular event.
The fact that the detrimental effects of that
discrete decision may be continuing does not
extend the statute of limitations indefinitely.
See Eagleston v. Guido, 41 F.3d 865, 871
(2d Cir. 1994) (no continuing violation
doctrine on Section 1983 claim alleging
repeated failure to arrest domestic violence
suspect); see also Ognigene v. Niagara
County Sheriff’s Dep’t, 117 Fed. App’x 798,
799 (2d Cir. June 11, 2005) (Section 1983
claims time-barred “notwithstanding any
continuing detrimental effects he may be
suffering as a result of the alleged
constitutional violations”). Thus, there is no
legal basis to extend Shomo outside the
context of medical indifference claims by
applying the continuing violations doctrine
to Eighth Amendment claims challenging
parole conditions imposed entirely outside
the statute of limitations.
The Eleventh Circuit has addressed a
situation closely analogous to the case at
bar, and did not apply the continuing
violation doctrine. In Lovett v. Ray, the
Eleventh Circuit declined to apply the
continuing violation theory to plaintiff’s
complaint pursuant to Section 1983 which
alleged that the defendants violated his
constitutional rights by changing the
frequency of his parole consideration under
a newly enacted law. 327 F.3d 1181, 1182
(11th Cir. 2003). The Eleventh Circuit held
that the decision not to consider Lovett for
parole again until 2006 was a “one time act
with continued consequences” and thus,
there was no continuing violation to toll the
statute of limitations. Id. at 1183. As the
Eleventh Circuit explained:
The critical distinction in the
continuing violation analysis . . . is
whether the plaintiff[ ] complain[s]
of the present consequence of a one
time violation, which does not
extend the limitations period, or the
continuation of that violation into the
present, which does.
Id. (citing Knight v. Columbus, Ga., 19 F.3d
579, 580-81 (11th Cir. 1994); see also Jones
v. Henry, 260 Fed. App’x 130, 132 (10th
Cir. 2008) (“We reject Plaintiff’s argument
that each denial or parole consideration is a
separate cause of action for statute of
limitations purposes.”). This Court agrees
with the reasoning in Lovett. Like the
decision in Lovett, the decision to impose
conditions to plaintiff’s lifetime supervision
was a “one time act with continued
consequences.” Accordingly, the plaintiff’s
claims are time barred because the
continuing violation doctrine does not
Moreover, Shomo made clear that a
plaintiff must still show that there is some
non-time barred act. Here, even if Shomo
did provide that the continuing violation
theory could apply to plaintiff’s Eighth
Amendment claim, plaintiff would not be
able to meet his burden because, as
discussed supra, he suffered one act, the
imposition of his conditions in New York.
Plaintiff has failed to point to one other act
that has taken place during the applicable
time period that would justify applying the
15
apply.8 Thus, plaintiff’s claims must be
dismissed in their entirety as time-barred.9
SO ORDERED.
VI. CONCLUSION
______________________
JOSEPH F. BIANCO
United States District Judge
For the foregoing reasons, the
defendants’ motion to dismiss plaintiff’s
complaint, pursuant to Rule12(b)(6) of the
Federal Rules of Civil Procedure, is granted.
The Clerk of the Court shall enter judgment
accordingly and close the case.
Dated:
February 17, 2012
Central Islip, NY
***
Plaintiff is represented by Diarmuid White,
Esq., of the firm White and White, 148 East
78th Street, New York, NY and Leon
Friedman, Esq., of the Offices of Leon
Friedman, 148 East 78th Street, New York,
NY 10075. Defendants are represented by
Lori L. Pack, Esq., of the Office of the New
York State Attorney General, located at 300
Motor Parkway, Suite 205, Hauppauge, NY
11788.
8
There is also no basis for equitable tolling in this
case. “Tolling of the time limit is granted when ‘rare
and exceptional circumstances’ prevented a plaintiff
from filing on time.” Williams v. Potter, No. 06 Civ.
8258 (LAP), 2007 WL 2375818, at *5 (S.D.N.Y.
Aug. 14, 2007) (quoting Smith v. McGinnis, 208 F.3d
13, 17 (2d Cir. 2000)). When determining whether
equitable tolling is applicable, a district court must
consider “whether the person seeking application of
the equitable tolling doctrine (1) has ‘acted with
reasonable diligence during the time period she seeks
to have tolled,’ and (2) has proved that the
circumstances are so extraordinary that the doctrine
should apply.’” Zerilli-Edelglass v. N.Y. City Transit
Auth., 333 F.3d 74, 80-81 (2d Cir. 2003) (quoting
Chapman v. ChoiceCare Long Island Term Disability
Plan, 288 F.3d 506, 512 (2d Cir. 2002)); see also
South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir.
1994) (noting that the principles of equitable tolling
do not extend to what “is at best a garden variety
claim of excusable neglect”) (citation and quotation
marks omitted). The doctrine is “highly casespecific,” and the “burden of demonstrating the
appropriateness of equitable tolling . . . lies with the
plaintiff.” Boos v. Runyon, 201 F.3d 178, 184-85 (2d
Cir. 2000); see also Smith v. Chase Manhattan Bank,
No. 97 Civ. 4507 (LMM), 1998 WL 642930, at *3
(S.D.N.Y. Sept. 18, 1998) (“[A] court must consider
the equities of the excuse offered to explain the delay
and may extend the limitations period if warranted.”).
9
Defendants also argue that plaintiff’s complaint
should be dismissed on the grounds of collateral
estoppel, full faith and credit, qualified immunity and
failure to join necessary parties. However, because
the Court finds that the complaint must be dismissed
in its entirety because it is barred by RookerFeldman, res judicata and statute of limitations, the
Court need not address defendants’ additional
arguments.
16
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