Gonzalez v. Hasty et al

Filing 71

MEMORANDUM OPINION AND ORDER: for the reasons stated, the motion to compel is DENIED. (Signed by Magistrate Judge Ronald L. Ellis on 4/12/2012) (cd)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ESTEBAN GONZALEZ,
Plaintiff,

MEMORANDUM
OPINION AND ORDER

- against­
05 Civ. 6076 (RMB) (RLE)
W ARDEN DENNIS W. HASTY, et aI.,
Defendants.
RONALD L. ELLIS, United States Magistrate Judge:

Before the Court is Plaintiff's motion to compel discovery on the issue ofjurisdiction.
The discovery is predicated on the remand from the Second Circuit "for factual findings on the
length of the administrative exhaustion period, its effect on the applicable statute of limitations,
and for such further action as may be appropriate." Gonzalez v. Hasty, el al., 651 F.3d 318, 323
(2d Cir. 2011).
Defendants have limited their production to facts related to the tolling of Gonzalez's
requirement to exhaust administrative proceedings. Gonzalez maintains that because the Second
Circuit did not reach the issue of continuing violation, any discovery which might be relevant to
such a theory must be allowed. Gonzalez states that he is
clearly entitled to full discovery in support of this claim. Where, as here, the
complaint alleges a single continuing wrong or course of misconduct, both the
federal and New York State courts have recognized that the application ofthe statute
of limitations is governed by what is variously called the 'continuing tort doctrine'
or the 'continuing violation doctrine.'
PI's Mot. to Compel Discovery 10. The Court disagrees. First, the opinion of the panel focused
on the tolling question, and addressed the elements this Court should consider in determining
whether or not tolling is appropriate. Second, while it is true that the panel did not reach the
issue of continuing violation, that is not the equivalent of the panel ordering that discovery be

conducted on that issue. The panel had before it this Court's finding "that, even assuming
Gonzalez had shown the 'compelling circumstances' necessary to

prevail on a continuing

violation theory, his MCC claim nonetheless ripened when he was transferred out of the MCC on
July 24, 200 I, and any constitutional violations that allegedly occurred at the MDC would
constitute a new conspiracy." Gonzalez, 651 F. 3d at 321.

The Court sees no reason to disturb

this finding. The panel did not remand to reconsider the finding. The panel also did not remand
for a fuller development of the record on the continuing violation issue. Instead, the panel noted
that the Court "failed to address, however, whether tolling of the statute of limitations should
apply to Gonzalez's MCC claims, which arose in Manhattan and where venue was proper." ld.
Defendants properly responded to questions related to tolling.
The motion to compel is DENIED.
SO ORDERED this 12th day of April 2012
New York, New York

~~

The Honorable Ronald L. Ellis
United States Magistrate Judge

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