Williams v. Vaccaro et al

Filing 65

ORDER DISMISSING OFFICER VACCARO FROM THE ACTION WITH PREJUDICE: Accordingly, Officer Vaccaro's dismissal from this action without prejudice is hereby converted to a dismissal with prejudice. (Signed by Judge Colleen McMahon on 7/26/2022) BY ECF TO ALL COUNSEL (kv)

Case 1:19-cv-03548-CM-SDA Document 65 Filed 07/26/22 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
7/26/2022
SHAMARK WILLIAMS,
Plaintiff,

No. 19 Civ. 03548 (CM) (SDA)

-againstMICHAEL VACCARO, ET AL.,
Defendants.
ORDER DISMISSING OFFICER VACCARO FROM THE ACTION WITH PREJUDICE
McMahon, J:
On April 13, 2022, Magistrate Judge Aaron ordered that Plaintiff show cause why this
action should not be dismissed without prejudice against Defendant New York City Police Officer
Michael Vaccaro (“Officer Vaccaro”) for failure to timely serve Officer Vaccaro, pursuant to Rule
4(m) of the Federal Rules of Civil Procedure. (See Docket No. 46). For the reasons set forth in
his Report and Recommendation issued June 1, 2022 (Report and Recommendation of the
Magistrate Judge, Docket No. 61), Magistrate Judge Aaron recommended that the court dismiss
the action without prejudice as to Officer Vaccaro.
The court, understanding that Mr. Williams was not asked why his claim should be
dismissed with prejudice, accepted the Report’s recommendation, and dismissed the action against
Officer Vaccaro without prejudice. (See Docket No. 62). However, the court ordered that Mr.
Williams to show cause, no later than July 15, 2022, why the dismissal should not be converted to
one with prejudice on the ground that the statute of limitations has run. (Id.).
Mr. Williams did not file anything in response to the court’s June 16, 2022, order to show
cause. The case against Officer Vaccaro is facially time-barred: the claim accrued on January 12,

Case 1:19-cv-03548-CM-SDA Document 65 Filed 07/26/22 Page 2 of 2

2018, and the statute of limitations is three years, making the last day for serving Officer Vaccaro
January 12, 2021. In a 42 U.S.C. § 1983 (“Section 1983”) action like this one, a defendant must
be served before the statute runs or the claims against him are barred. Zapata v. City of New York,
502 F.3d 192, 194 n. 3 (2d Cir. 2007). As far as the court knows, Officer Vaccaro has not been
served even unto today. And by failing to respond to the court’s order to show cause, Plaintiff has
not pointed to any reason why the running of the statute of limitations should or could have been
equitably tolled.
Accordingly, Officer Vaccaro’s dismissal from this action without prejudice is hereby
converted to a dismissal with prejudice.

Dated: July 26, 2022

_____________________________________
U.S.D.J.
BY ECF TO ALL COUNSEL