Devane v. Doe et al

Filing 6

ORDER TO SHOW CAUSE: The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is directed to file a declaration within sixty days of the date of this order showing why the complaint should not be dismissed as time-barred. Plaintiff must submit the declaration to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as a "Declaration," and label the document with docket number 20-CV-9649 (LLS). A declaration form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. (Signed by Judge Louis L. Stanton on 1/7/2021) (sac) Transmission to Docket Assistant Clerk for processing.

Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DONNIE DEVANE,
Plaintiff,
-against-

20-CV-9649 (LLS)

JOHN OR JANE DOE MD;
SUPERINTENDENT, Downstate Correctional
Facility,

ORDER TO SHOW CAUSE

Defendants.
LOUIS L. STANTON, United States District Judge:
Plaintiff, currently incarcerated at Bare Hill Correctional Facility, brings this pro se action
alleging that in May 2015, a John Doe doctor violated his constitutional rights at Downstate
Correctional Facility (“Downstate”), when the doctor failed to provide Plaintiff privacy during a
medical examination. By order dated January 5, 2021, the Court granted Plaintiff’s request to
proceed in forma pauperis (IFP). The Court directs Plaintiff to file a declaration within sixty
days of the date of this order showing cause why the complaint should not be dismissed as timebarred.
STANDARD OF REVIEW
The Prison Litigation Reform Act requires that federal courts screen complaints brought
by prisoners who seek relief against a governmental entity or an officer or employee of a
governmental entity. See 28 U.S.C. § 1915A(a). The Court must dismiss a prisoner’s in forma
pauperis complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d
636, 639 (2d Cir. 2007). The Court must also dismiss a complaint if the court lacks subject
matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).

Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 2 of 6

DISCUSSION
42 U.S.C. § 1983
Because Plaintiff alleges that his federal constitutional rights were violated, his claims
arise under 42 U.S.C. § 1983. To state a claim under § 1983, a plaintiff must allege both that:
(1) a right secured by the Constitution or laws of the United States was violated, and (2) the right
was violated by a person acting under the color of state law, or a “state actor.” West v. Atkins, 487
U.S. 42, 48-49 (1988).
Statute of Limitations
It appears that Plaintiff’s claims are time-barred. The statute of limitations for § 1983
claims is found in the “general or residual [state] statute [of limitations] for personal injury
actions.” Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (quoting Owens v. Okure,
488 U.S. 235, 249-50 (1989)). In New York, that period is three years. See N.Y. C.P.L.R.
§ 214(5). Section 1983 claims generally accrue when a plaintiff knows or has reason to know of
the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013).
Plaintiff alleges that the event giving rise to his claims occurred in May 2015, and that he was
aware of the alleged violation at the time it occurred. On October 30, 2020, he submitted his
complaint for filing, 1 more than two years after the statute of limitations expired.

1

Plaintiff signed the complaint on October 30, 2020. Because he was incarcerated when
he submitted his complaint for filing, the prison mailbox rule applies. See Walker v. Jastremski,
430 F.3d 560, 562-64 (2d Cir. 2005) (discussing prison mailbox rule). Under the prison mailbox
rule, the date a plaintiff signs a court submission qualifies as the filing date. See, e.g., Nash v.
Kressman, No. 11-CV-7327, 2013 WL 6197087, at *4 (S.D.N.Y. Nov. 27, 2013) (finding that
signature date on cover letter, which accompanied pro se complaint, established filing date for
purposes of prison mailbox rule). See generally Houston v. Lack, 487 U.S. 266, 270 (1988)
(holding that a pro se prisoner’s document is deemed “filed” when delivered to prison authorities
for forwarding to the court).
2

Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 3 of 6

Doctrine of Equitable Tolling
The doctrine of equitable tolling permits a court, “under compelling circumstances, [to]
make narrow exceptions to the statute of limitations in order ‘to prevent inequity.’” In re U.S.
Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation omitted). The statute of limitations may be
equitably tolled, for example, when a defendant fraudulently conceals from a plaintiff the fact
that the plaintiff has a cause of action, or when the plaintiff is induced by the defendant to forego
a lawsuit until the statute of limitations has expired. See Pearl, 296 F.3d at 82-83. Here, Plaintiff
does not allege any facts suggesting that the statute of limitations should be equitably tolled.
Notice and Opportunity to Be Heard
Because the failure to file an action within the limitations period is an affirmative
defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v.
Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence
of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading.
See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011)
(“[D]istrict courts may dismiss an action sua sponte on limitations grounds in certain
circumstances where the facts supporting the statute of limitations defense are set forth in the
papers plaintiff himself submitted.”) (internal quotation marks and citation omitted); Pino v.
Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal of complaint as frivolous on
statute of limitations grounds). But district courts should grant notice and opportunity to be heard
before dismissing a complaint sua sponte on statute of limitations grounds. See Abbas, 480 F.3d
at 640.

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Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 4 of 6

Leave to File Declaration
The Court therefore directs Plaintiff to file a declaration within sixty days of the date of
this order, stating why the complaint should not be dismissed as time-barred. Plaintiff may allege
any facts showing that the Court should apply the doctrine of equitable tolling.
CONCLUSION
The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on
the docket.
Plaintiff is directed to file a declaration within sixty days of the date of this order showing
why the complaint should not be dismissed as time-barred. Plaintiff must submit the declaration
to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the
document as a “Declaration,” and label the document with docket number 20-CV-9649 (LLS). A
declaration form is attached to this order. No summons will issue at this time.
If Plaintiff fails to comply within the time allowed, and he cannot show good cause to
excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief
may be granted.
SO ORDERED.
Dated:

January 7, 2021
New York, New York
Louis L. Stanton
U.S.D.J.

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Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 5 of 6

U NITED S TATES D ISTRICT C OURT
S OUTHERN D ISTRICT OF N EW Y ORK

Write the first and last name of each plaintiff or
petitioner.
Case No.

CV

-against-

Write the first and last name of each defendant or
respondent.

DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s
Motion for Summary Judgment,” or “in Response to Order to Show Cause.”
I,

, declare under penalty of perjury that the

following facts are true and correct:
In the space below, describe any facts that are relevant to the motion or that respond to a court
order. You may also refer to and attach any relevant documents.

Rev. 10/3/16

Case 1:20-cv-09649-LLS Document 6 Filed 01/07/21 Page 6 of 6

Attach additional pages and documents if necessary.

Executed on (date)

Signature

Name

Prison Identification # (if incarcerated)

Address
Telephone Number (if available)

City

State

Zip Code

E-mail Address (if available)

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