Jones v. Westchester County et al

Filing 84

OPINION AND ORDER: For the foregoing reasons, Defendants Motion To Dismiss is granted. Plaintiffs Second Amended Complaint is dismissed. Dismissal is necessarily with prejudice because three-year statute of limitations on Plaintiff's claims ex pired in May 2017, see Zapata, 502 F.3d at 194 n.3 ("In section 1983 actions within New York, the applicable limitations period is... three years."(citation and internal alterations omitted)), and any amendment to the Second Amended Compl aint would, therefore, be "futile," Terry v. Inc. Vill. of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016); see also Brunson-Bedi, 2018 WL 2084171, at *2 ("Amendment is... futile if a plaintiff's claims should be dismissed for imprope r service which cannot be cured by further amendment of a complaint." (internal alterations, quotation marks, and citation omitted)); see also Nat'l Union, 1994 WL 463009, at *7 (dismissing case pursuant to Rule 4(m) even though it would be time-barred if re-filed). The Clerk of Court is respectfully requested to close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 12/21/2018) (jca) Modified on 12/21/2018 (jca).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ANDRE JONES,
Plaintiff,
-against-

No. 14-CV-9803 (KMK)

WESTCHESTER COUNTY; SGT. ODDES
ANDREWS; OFFICER BRUCE ALLEN;
OFFICER KARL BEST; EMERGENCY
RESPONSE TEAM,

OPINION & ORDER

Defendants.
Appearances:
Andre Jones
Attica, NY
Pro Se Plaintiff
Irma Wheatfield Cosgriff, Esq.
Nicholas S. DeCicco, Esq.
Westchester County Attorney’s Office
White Plains, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Andre Jones (“Plaintiff”) brings this pro se Action, under 42 U.S.C. § 1983, against
Sergeant Oddes Andrews (“Andrews”), Officer Bruce Allen (“Allen”), and Officer Karl Best
(“Best”) (collectively, “Defendants”), in their individual capacities, alleging that Defendants
engaged in conduct that violated his rights under the Eighth Amendment. 1 Before the Court is
Defendants’ Motion To Dismiss the Second Amended Complaint (the “Motion”). (Dkt. No. 74.)
For the following reasons, the Motion is granted.

1

Plaintiff also sues Westchester County and its “Emergency Response Team.” The
Court dismissed these Defendants on September 30, 2016. (Dkt. No. 38.)

I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Second Amended Complaint (“SAC”) and
are taken as true for the purposes of resolving the instant Motion.
Plaintiff was an inmate at the Westchester County Jail (the “Jail”). On May 27, 2014,
during “the 3/11 [p.m.] shift” at the Jail, a “physical dispute” arose “between [Plaintiff] and an
inmate/detainee which resulted in a signal (1) alarm” and the summoning of the Emergency
Response Team (“ERT”). (SAC ¶ 1 (Dkt. No. 15).) Following the dispute, Plaintiff was placed
in “mechanical restraints” and taken to the medical department for treatment for a “deep cut to
[his] right eyebrow.” (Id. ¶¶ 2–3.) After receiving treatment, Plaintiff was taken by Allen and
Best, two members of the ERT, to the Jail’s booking area to be strip-searched. (Id. ¶ 4.) As
Allen and Best escorted Plaintiff, another unnamed ERT officer ahead called out, “‘wet floor’
clear enough for everyone in the area to hear.” (Id.) Instead of slowing down or changing
direction, Allen and Best “snicker[ed]” and “decided to speed walk [Plaintiff] over the wet
floor.” (Id. ¶ 5.) Due to his restricted range of movement, Plaintiff began to lose his balance,
and, realizing this, Allen and Best “let lo[o]se of their grasp[,] allowing [Plaintiff] to stumble and
fall on the wet floor.” (Id.) Andrews, another prison official standing nearby, witnessed but did
not prevent the alleged incident. (Id. ¶ 7.)
Plaintiff alleges that, as a result of the fall, he “suffered pain and injuries to [his] left
knee, left hip[,] and lower back.” (Id. ¶ 6.) Plaintiff states that he “could not walk,” and that
Allen, Best, and Andrews “knew [Plaintiff] was in severe pain,” yet still “forced [him] to stand
and continue the walk to the booking search area, causing [him] more pain.” (Id.) Upon arriving
at the booking area, Plaintiff underwent a strip search, during which “the pain from [his] injuries

2

became unbearable,” and Plaintiff asked to be seen by the medical staff. (Id. ¶ 8.) Plaintiff was
seen by medical staff five to ten minutes later and was “immediately given an ice pack for the
swelling to [his] knee and hip area.” (Id. ¶¶ 8–9.) Plaintiff was then forced by another officer,
not named as a defendant here, to “hop step/walk all the way to [his] housing block[] with [his]
hands cuffed.” (Id. ¶ 10.) Plaintiff was unable to sleep until he was given pain medication, (id.),
and he spent the rest of his time at the Jail “in great pain,” until he was “given an MRI that
resulted in . . . getting physical therapy,” (id. ¶ 11). Plaintiff also alleges that he is now
“paranoid[] and afraid” when in the presence of prison staff while handcuffed or shackled. (Id.
§ V.)
B. Procedural History
Plaintiff commenced this Action against Westchester County and two John Doe officers
in December 2014. (Dkt. No. 1.) In March 2015, the Court directed Plaintiff to submit an
amended complaint that more clearly articulated Plaintiff’s purported grounds for recovery.
(Dkt. No. 6.) Plaintiff filed his First Amended Complaint in June 2015, naming as Defendants
Westchester County Jail, Sgt. Andrews, John Doe #1, John Doe #2, and the ERT. (Dkt. No. 11.)
In July 2015, the Court issued an Order dismissing Westchester County Jail and substituting
Westchester County, directing service on the named Defendants, and directing the Westchester
County Attorney to aid Plaintiff in ascertaining the identities of the John Doe Defendants. (Dkt.
No. 13.) Upon learning the identities of Allen and Best, Plaintiff filed the instant Second
Amended Complaint on September 24, 2015. (Dkt. No. 15.) Westchester County and Andrews
were served with the Second Amended Complaint on October 20, 2015. (Dkt. Nos. 16, 17.)
Service does not appear to have been attempted on Allen or Best at that time.

3

Defendants filed a first motion to dismiss and accompanying papers on February 11,
2016. (Dkt. Nos. 30–32.) On February 25, 2016, Plaintiff filed a letter asking the Court to
provide additional time to allow him to serve Allen and Best, (Dkt. No. 34), which the Court
granted, (Dkt. No. 35). Plaintiff did not file any additional opposition papers.
On September 30, 2016, the Court denied Defendants’ first motion to dismiss in part and
granted it in part. (Opinion & Order (“Sept. 26 Op.”) (Dkt. No. 38).) In particular, the Court
granted the motion to dismiss the deliberate-indifference-to-medical-needs claim and the Monell
claim against the County and the individual Defendants in their official capacities. (Id. at 35.)
The Court denied the motion in all other respects. (Id.) The Court granted Plaintiff leave to file
a third amended complaint by October 30, 2016, and stated that it would issue an Order detailing
what Plaintiff had to do to serve Allen and Best. (Id.)
Plaintiff did not file a third amended complaint. (See Dkt. No. 40, at 1.) On November
11, 2016, the Court issued an Order advising Plaintiff how to serve Defendants and instructing
the Clerk of Court to send Plaintiff the forms required to effect service. (Id. at 1–2.) Delays in
effecting service continued to occur. See infra Section II.B.1.c. Allen and Best were ultimately
served with the Second Amended Complaint on April 16, 2018. (Dkt. Nos. 70, 71.)
Defendants filed their Answer to the Second Amended Complaint on May 3, 2018, (Dkt.
No. 72), and the instant Motion To Dismiss pursuant to Rule 12(c) on May 11, 2018, (Not. of
Mot. (Dkt. No. 74); Decl. in Supp. of Mot. (Dkt. No. 75); Mem. of Law in Supp. of Mot. (“Defs.’
Mem.”) (Dkt. No. 76)). On May 30, 2018, Plaintiff requested an extension of time to respond in
order to submit document requests under New York’s Freedom of Information Law, (Dkt. No.
79), which the Court denied on June 1, 2018 on grounds that Plaintiff could have submitted such
requests “before filing this lawsuit,” (Dkt. No. 80). Plaintiff did not file an opposition to the

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Motion. On October 5, 2018, Defendants filed a letter seeking dismissal for failure to prosecute.
(Dkt. No. 81.) On October 10, 2018, the Court issued an Order deeming the Motion fully
submitted. (Dkt. No. 83.)
II. Discussion
A. Standard of Review
Defendants move to dismiss under Federal Rule of Civil Procedure 12(c). “In deciding a
Rule 12(c) motion, [the Court] employ[s] the same standard applicable to dismissals pursuant to
Rule 12(b)(6).” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011)
(alterations and internal quotation marks omitted). The Supreme Court has held that although a
complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a
plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and internal quotation marks
omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure “demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks omitted). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (alteration and internal quotation marks
omitted). Instead, a complaint’s “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claims across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556

5

U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the
pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering Defendants’ Motion To Dismiss, the Court is required to “accept as true
all of the factual allegations contained in the [C]omplaint.” Erickson v. Pardus, 551 U.S. 89, 94
(2007) (per curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). The Court
must also “draw[] all reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res.,
Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d
141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the Court must “construe[]
[the complaint] liberally and interpret[] [it] to raise the strongest arguments that [it] suggest[s].”
Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (per curiam) (internal quotation marks
omitted). However, “the liberal treatment afforded to pro se litigants does not exempt a pro se
party from compliance with relevant rules of procedure and substantive law.” Bell v. Jendell,
980 F. Supp. 2d 555, 559 (S.D.N.Y. 2013) (internal quotation marks omitted).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal

6

quotation marks omitted). However, when the complaint is drafted by a pro se plaintiff, the
Court may consider “materials outside the complaint to the extent that they are consistent with
the allegations in the complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at
*4 n.3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including “documents that a
pro se litigant attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL
5186839, at *4 n.6 (E.D.N.Y. Dec. 15, 2010) (italics omitted).
B. Analysis
Defendants argue that the Second Amended Complaint should be dismissed for failure to
timely serve Allen and Best as required by Federal Rule of Civil Procedure 4(m). (See Defs.’
Mem. 13–16.)
1. Applicable Law
Rule 4(m) requires a plaintiff to effect proper service on a defendant within 90 days of
the filing of the complaint. See Fed. R. Civ. P. 4(m). If a plaintiff fails to do so, the Court “must
dismiss the action without prejudice against [the] defendant or order that service be made within
a specified time.” Id. “Rule 4(m) ‘applies equally to defendants who were never served and
defendants who were served after the [90-day] period had lapsed.’” Nat’l Union Fire Ins. Co. v.
Sun, No. 93-CV-7170, 1994 WL 463009, at *3 (S.D.N.Y. Aug. 25, 1994) (quoting Geiger v.
Allen, 850 F.2d 330, 332 (7th Cir. 1988)). That is because, “[a]s the Geiger court explained, to
read the Rule otherwise would make the [90-day] deadline illusory and would allow plaintiffs
unlimited time to serve a complaint, unless the court or the unserved defendant (who in many
cases will have no notice of the action) happened to notice before [the] plaintiff effectuated
service [after] the time limit had elapsed.” Id.

7

However, if a plaintiff demonstrates “good cause” for a failure to timely effect service,
the Court “must” extend the time to effect service. Id. “‘Good cause’ is generally limited to
‘exceptional circumstances where the plaintiff’s failure to serve process in a timely manner was
the result of circumstances beyond [his] control.’” Barbosa v. City of New York, No. 16-CV7340, 2018 WL 4625620, at *2 (S.D.N.Y. Sept. 26, 2018) (quoting Vaher v. Town of
Orangetown, 916 F. Supp. 2d 404, 419 (S.D.N.Y. 2013)). “In determining whether a plaintiff has
shown good cause, courts weigh the plaintiff’s reasonable efforts and diligence against the
prejudice to the defendant resulting from the delay.” DeLuca v. AccessIT Grp., Inc., 695 F. Supp.
2d 54, 66 (S.D.N.Y. 2010) (citations omitted). That is, “[c]ourts generally consider three factors
. . . : (1) whether the delay resulted from inadvertence or whether a reasonable effort to effect
service has occurred, (2) prejudice to the defendant, and (3) whether the plaintiff has moved for
an extension of time to serve.” Nicholas v. Bratton, No. 15-CV-9592, 2018 WL 1054567, at *1
(S.D.N.Y. Feb. 23, 2018) (citation omitted).
Finally, even if a plaintiff cannot establish good cause, Rule 4(m) allows the Court, in its
discretion, to extend the time for service. See Zapata v. City of N.Y., 502 F.3d 192, 193 (2d Cir.
2007) (“[D]istrict courts may exercise their discretion to grant extensions under Rule 4(m) absent
a showing of good cause under certain circumstances. . . .”). In determining whether a
discretionary extension is warranted, the Court considers: “(1) whether any applicable statute of
limitations would bar the action once refiled; (2) whether the defendant had actual notice of the
claims asserted in the complaint; (3) whether [the] defendant had attempted to conceal the defect
in service; and (4) whether [the] defendant would be prejudiced by extending [the] plaintiff’s
time for service.” DeLuca, 695 F. Supp. 2d at 66 (citations omitted).

8

2. The September 2016 Opinion
The Court has addressed Rule 4(m) in this case once before. In its September 2016
Opinion, the Court held that, although Allen and Best were unserved at the time, Plaintiff’s
failure to serve did not warrant dismissal. (Sept. 2016 Op. 6.) First, the Court held that Plaintiff
could establish good cause for his failure to serve. (Id. at 7.) Plaintiff had relied to his detriment
on a July 2015 Order that indicated he would receive instructions for service, (Dkt. No. 13), after
which no instructions or other documents appear to have been sent, (Sept. 2016 Op. 8). Further,
Defendants did not argue that they were prejudiced by the failure to serve. (Id.) Second, the
Court held that, even if Plaintiff could not establish good cause, a discretionary extension of the
time to serve was warranted because of Plaintiff’s pro se status, because Defendants did not
establish prejudice from the delayed service, and because there was no evidence that Allen and
Best did not have actual notice of the claims against them. (Id. at 9–10.) The Court therefore
“provided [Plaintiff] additional time to effect service of the Second Amended Complaint on all
Defendants,” stated that it would “issue an Order of Service simultaneously with the filing of this
Opinion that [would] govern Plaintiff’s service responsibilities,” and warned that “[f]ailure to
complete service as required by the Order of Service could result in dismissal of the case.” (Id.
at 14; see also id. at 35 (“The Court will issue an Order of Service detailing what Plaintiff must
do to effect service on Defendants. Failure to fulfill his obligations as stated in the Order of
Service may result in dismissal of the Action for failure to prosecute.)
3. Post-September 2016 Procedural History
Since the Court’s September 2016 Opinion, problems with effecting timely service have
persisted. On October 5, 2016, the Court stated that it would “issue the Order of Service
governing Plaintiff’s service obligations after Plaintiff has filed his Third Amended Complaint,

9

or . . . after his time to do so has expired.” (Dkt. No. 39.) Plaintiff did not file a Third Amended
Complaint. The Court therefore issued an Order of Service on November 10, 2016, stating:
To allow Plaintiff . . . to effect service on all Defendants, . . . the Clerk of Court is
instructed to send Plaintiff one U.S. Marshals Service Process Receipt and Return
form (“USM-285 form”) for each Defendant. Within 30 days of the date of this
Order, Plaintiff must complete a USM-285 form for each Defendant and return
those forms to the Court. If Plaintiff does not wish to use the Marshals Service to
effect service, Plaintiff must notify the Court in writing within 30 days . . . . If
within 30 days, Plaintiff has not returned the USM-285 forms or requested a
summons, under Rule 41(b) of the Federal Rules of Civil Procedure, the Court may
dismiss this action for failure to prosecute. Upon receipt of each completed USM285 form, the Clerk of Court shall issue a summons and deliver to the Marshals
Service all of the paperwork necessary for the Marshals Service to effect service
upon each Defendant. The Clerk of Court shall serve a copy of this Order and the
Second Amended Complaint on the Westchester County Attorney . . . . It is
Plaintiff’s responsibility to ensure that service is made within 90 days of the date
the summons is issued and, if necessary, to request an extension of time for service.
(Dkt. No. 40.) On November 28, 2016, a summons was issued for Allen, Best, and Andrews, but
service of the Second Amended Complaint was unsuccessful. (Dkt. Nos. 41, 42, 43.) 2 On
February 8, 2017, Defendants filed a letter notifying the Court of the unsuccessful service and
requesting an extension of time to file an Answer, (Dkt. No. 45), which the Court granted, (Dkt.
No 46).
On March 15, 2017, Defendants filed a letter “not[ing] [that] it is now several weeks past
the February 26, 2017 service deadline and there is no record of the remaining defendants [Allen,
Best, and Andrews] being served [with the Second Amended Complaint], an extension being
requested, or further assistance as to the same being sought from the Plaintiff.” (Dkt. No. 47.)
The next day, the Court directed Plaintiff to respond to the letter and “indicate whether he intends
to serve” Allen, Best, and Andrews with the Second Amended Complaint. (Dkt. No. 48.)

2

However, as noted above, Andrews had been served with the First Amended Complaint
on October 20, 2015. (Dkt. No. 17.)

10

Plaintiff did not respond. Seven months later, on October 9, 2017, the Court issued an Order
directing Plaintiff to show cause by within a month why the case should not be dismissed for
failure to prosecute. (Dkt. No. 49.) Again Plaintiff did not respond. On December 29, 2017, the
Court issued a similar Order directing Plaintiff to show cause. (Dkt. No. 51.) On January 11,
2018, the Court received a letter from Plaintiff providing his new address and stating that “the
last time [Plaintiff] received any correspondence from the courts or the defendants was March
2017.” (Dkt. No. 52.) 3 On January 17, 2018, the Court issued another Order directing Plaintiff
to show cause, again warning that dismissal may occur if good cause is not shown, (Dkt. No. 53),
and mailed it to Plaintiff’s updated address.
On January 19, 2018, the Court received another letter from Plaintiff, sent from his new
address, stating:
On November 15, 2016 I sent all 4 defendants [the] summons and complaint by
way of the USM-285. I sent the USM-28[5] forms to the Clerk of the Courts, as I
was ordered. The Clerk sent me my copies. The courts should not dismiss this case
due to the fact that I followed all of the process that . . . was requested by the courts
to the best of my ability. . . . [I] do not completely understand some of the legal
process in dealing with this case because I do not have any assistance to help me
get the needed documents . . . to comple[te] this case. Also I did not receive the
October 19, 2017 order to show cause. The corrections officers did not give me the
correspondence letter from the courts. I did not know about said order until I
received a letter from the courts filed 12/29/17.
(Dkt. No. 54.) On January 24, 2018, the Court directed Defendants to provide addresses for the
unserved Defendants, (Dkt. No. 55), and Defendants responded, (Dkt. No. 56). On February 13,
2018, the Court issued an Order directing service on Allen and Best. (Dkt. No. 59.) Allen and
Best were served on April 16, 2018. (Dkt. Nos. 70, 71.)

3

The docket sheet reflects that, between March 2017 and January 2018, all court orders
and defense correspondence were mailed to Plaintiff at the most recent address he had provided
to the Court. (See Letter from Andre Jones to Court (May15, 2015) (Dkt. No. 7) (providing
address at Attica Correctional Facility).)
11

4. Application
Defendants argue that this sequence of events — between the Court’s September 2016
Opinion and the service of Allen and Best in April 2018 — shows that Plaintiff failed to comply
with Rule 4(m)’s requirement that service be effected within 90 days and precludes a showing of
good cause. (Defs.’ Mem. 13.) The Court agrees. As an initial matter, unlike the situation
previously before the Court, (see Sept. 2016 Op. 8), Plaintiff cannot establish detrimental
reliance on the arms of the Court. Whereas previously “the docket [bore] no indication that” the
Court had sent instructions to Plaintiff to effect service, (id.), the post-September 2016 docket
sheet reflects that the Court’s instructions on service and forms necessary to effect service were
sent to Plaintiff on November 10, 2016 at his then-current address.
Second, Plaintiff does not appear to have made reasonable efforts to timely serve Allen
and Best with the Second Amended Complaint. The Court’s November 10, 2016 Order
explicitly stated that it is Plaintiff’s responsibility to ensure service within 90 days of the
issuance of the summons or to request an extension. (Dkt. No. 40.) However, the docket sheet
reflects that, while Plaintiff completed a USM-285 form, service was returned unexecuted as to
Allen, Best, and Andrews on January 3, 2017. (Dkt. Nos. 41, 42, 43.) Plaintiff took no further
action to effect service or otherwise request an extension, despite the Court’s issuing four Orders
between March 16, 2017 and January 17, 2018 directing Plaintiff to show cause why his case
should be dismissed for failure to prosecute and warning him that failure to show cause could
lead to dismissal. (Dkt. Nos. 48, 49, 51, 53.) Plaintiff did not respond to these Orders. In
addition to these Orders, Plaintiff was notified on three other occasions that Allen and Best were
unserved and that Andrews was served only with the First Amended Complaint. (See Dkt. Nos.
45, 46, 47.) These notifications did not prompt Plaintiff to respond. Indeed, Plaintiff broke his

12

silence only in January 2018, (Dkt. No. 52), some fourteen months after the issuance of the
November 2016 Order of Service. Even assuming the truth of Plaintiff’s statement that “the last
time . . . [he] received any correspondence from the courts or the defendants was March 2017,”
(id.), Plaintiff does not account for the seven Court Orders and other filings sent to Plaintiff
between September 2016 and March 2017 notifying him that Defendants remained unserved,
(Dkt. Nos. 38, 39, 40, 45, 46, 47, 48). Plaintiff’s statements that he “did not receive the October
19, 2017 Order to show cause [at Dkt. No. 49]” and that he did “not know about said Order
until[] [he] received a letter from the courts filed 12/29/17 [at Dkt. No. 51],” (Dkt. No. 54), still
fail to account for the Court’s March 2017 Order directing Plaintiff “to indicate whether he
intends to serve the remaining Defendants,” (Dkt. No. 48). And although Plaintiff states that he
lacks an understanding of the legal system, (Dkt. No. 54), “ignorance of the law, even on the part
of a pro se litigant, is not ‘good cause’ under Rule 4(m), such that an extension of time to effect
service would be required,” Tabb v. Rosemary, No. 12-CV-1520, 2014 WL 240266, at *6
(S.D.N.Y. Jan. 22, 2014) (citation and internal quotation marks omitted). Nor does the fact that
Allen and Best were ultimately served with the Second Amended Complaint in April 2018, (see
Dkt. Nos. 70, 71), “render[] moot” the violation, for, as noted, “Rule (4m) ‘applies equally to
defendants who were never served and defendants who were served after the [90-day] period had
lapsed.’” Nat’l Union, 1994 WL 463009, at *3 (quoting Geiger, 850 F.2d at 332); see also Ogbo
v. N.Y. State Dep’t of Tax. & Fin., No. insert, 2000 WL 1273840, at *3 (S.D.N.Y. Sept. 6, 2000)
(“When a defendant is served late, that service is ineffectual.” (citing both Nat’l Union and
Geiger)).
In sum, this is not a case where Plaintiff can be said to have been unaware that service
was not timely effected or where external circumstances interfered with Plaintiff’s ability to

13

effect service. In light of these considerations — as well as the facts that Plaintiff failed to
respond to the instant Motion and offers no explanation for his failure to serve, (see Dkt. No. 83),
and that Plaintiff has not communicated with the Court since May 2018, (see Dkt. No. 79) — the
Court concludes that Plaintiff has clearly failed to demonstrate good cause excusing his failure to
timely serve Allen and Best with the Second Amended Complaint. See Barbosa, 2018 WL
4625620, at *3 (“Good cause is particularly lacking in this case, where [the] [p]laintiff has never
requested leave to properly serve the . . . [d]efendants despite receiving [repeated] notice of his
insufficient process.”); Guerrero v. City of New York, No. 14-CV-8035, 2018 WL 4333985, at *6
(S.D.N.Y. Sept. 11, 2018) (holding that the plaintiff failed to demonstrate good cause because the
“[d]efendants raised the issue of [defective] service in” five court filings).
The Court further concludes that granting a discretionary time extension would be
unwarranted. To obtain a discretionary extension, “the plaintiff must ordinarily advance some
colorable excuse for neglect.” Zapata, 502 F.3d at 198. No such excuse or other explanation is
advanced here. (See Dkt. No. 83.)
Moreover, the four factors used to determine whether to grant a discretionary extension,
see DeLuca, 695 F. Supp. 2d at 66, do not weigh in favor of granting an extension. As to the first
factor, the statute of limitations would bar a refiled action. Plaintiff’s claims accrued in May
2014. Because § 1983 actions in New York have a three-year limitations period, see Zapata, 502
F.3d at 194 n.3, Plaintiff’s claims expired in May 2017. (See Sept. 2016 Op. 10 (“Plaintiff’s
§ 1983 claims are subject to a three-year statute of limitations . . . that will not expire until May
2017.”).) Although this factor generally weighs in favor of a discretionary extension, see Zapata,
502 F.3d at 198 (noting that “it is the prejudice to the plaintiff that would most naturally be
‘assumed’ where a dismissal without prejudice would time-bar the action” (emphasis in

14

original)), the factor is “not dispositive,” Brunson-Bedi v. New York, No. 15-CV-9790, 2018 WL
2084171, at *9 (S.D.N.Y. May 1, 2018) (citation omitted); see also Arch Ins. Co. v. Goldens
Bridge Fire Dep’t, No. 16-CV-9921, 2018 WL 1725225, at *5 (S.D.N.Y. Apr. 6, 2018) (“Courts
have consistently considered the fact that the statute of limitations has run on a plaintiff’s claim
as a factor favoring the plaintiff in a Rule 4(m) analysis.” (alterations and citations omitted)).
Rather, even where the statute of limitations has run, “courts have declined to extend the time to
serve” where — as here — “a plaintiff has failed to demonstrate diligence, establish good cause,
and/or provide any excuse.” Guerrero, 2018 WL 4333985, at *6 (citing Zapata, 502 F.3d at 199
and Vaher, 916 F. Supp. 2d at 421).
As to the second factor, the Court previously noted that, “‘while there is no competent
evidence to support a conclusion that [Allen or Best] had actual notice of the claims against
them, defense counsel . . . has engaged in motion practice on their behalf.’” (Sept. 2016 Op. 10
(quoting Vaher, 916 F. Supp. 2d at 421).) The Court further stated that it “cannot identify any
material way in which [Defendants’ court filings] would have differed” had Allen and Best been
served in their individual capacities. (Id. at 11.) Defendants’ argument — that “[t]he fact that
[Defendants] filed a motion on [Allen and Best’s] behalf in their official capacities only cannot
be deemed a waiver of service or an acknowledgement that they had actual notice,” because
“[a]n action against an individual in his/her [official] capacity is really an action against the
municipality,” (Defs.’ Mem. 15 (citation omitted) — is nonresponsive. Nevertheless, even
assuming Allen and Best had actual notice of the claims against them, their actual notice does not
overcome Plaintiff’s failure to even “attempt[] to remedy the defect [in service] by asking the
district court to extend [his] time to effect personal service.” Bogle-Assegai v. Conn., 470 F.3d
498, 508–09 (2d Cir. 2006); see also Smith v. Bray, No. 13-CV-7172, 2014 WL 5823073, at *5

15

(S.D.N.Y. Nov. 10, 2014) (“Neither actual notice nor absence of prejudice to the defendant
provides an adequate basis for excusing noncompliance with Rule 4(m), unless plaintiff has
diligently attempted to complete service.” (citation and internal quotation marks omitted)). In
short, the second factor does not weigh in favor of a discretionary extension.
The third and fourth factors weigh against a discretionary extension. Defendants did not
conceal, or attempt to conceal, the defective service of Allen and Best. To the contrary, the
record shows that Defendants repeatedly raised the issue of Plaintiff’s defective service after the
Court’s September 2016 Opinion. (See Dkt. Nos. 45, 47, 56.) Moreover, Defendants have been
prejudiced by the delay in service, for not only was the initial Complaint filed over four years
ago, in December 2014, but Plaintiff has ignored repeated directives from the Court — both prior
to and subsequent to the Court’s September 2016 Opinion — to ensure proper service.
“[E]xtending the service period beyond the statute of limitations period for the action imposes a
corresponding prejudice on [D]efendants, especially where, as here, both the service period and
the statute of limitations period have long since expired.” Barbosa, 2018 WL 4625620, at *3
(quoting Vaher, 916 F. Supp. 2d at 421).
On balance, considering the four factors and the fact that Plaintiff has failed to “advance
some colorable excuse for neglect,” Zapata, 502 F.3d at 198, the Court concludes that a
discretionary extension of the time to serve is unwarranted in this case. The Court is, of course,
mindful of Plaintiff’s pro se status, but “the liberal treatment afforded to pro se litigants does not
exempt a pro se party from compliance with relevant rules of procedure and substantive law.”
Bell, 980 F. Supp. 2d at 559 (internal quotation marks omitted). The Court is also mindful that
the Second Circuit has a “clearly expressed preference that litigation disputes be resolved on the
merits.” Mejia v. Castle Hotel, Inc., 164 F.R.D. 343, 346 (S.D.N.Y. 1996) (citations omitted); see

16

also Cody v. Mello, 59 F.3d 13, 15 (2d Cir. 1995) (same); Enron Oil Corp. v. Diakuhara, 10 F.3d
90, 95 (2d Cir. 1993) (same). In this case, however, “‘no weighing of the prejudices between the
. . . [P]arties can ignore that the situation is the result of . . . [P]laintiff’s neglect.” Barbosa, 2018
WL 4625620, at *4 (quoting Zapata, 502 F.3d at 198). Plaintiff made one unsuccessful effort
after September 2016 to effect service of the Second Amended Complaint, but did not follow up
when it became clear that attempt was unsuccessful, did not request a time extension from the
Court, ignored multiple Court Orders to show cause and warnings of possible dismissal, ignored
Defendants’ filings notifying him of the defect in service, and now offers no colorable excuse for
his failure to timely serve. See Zapata, 205 F.3d at 198. Therefore, dismissal of Plaintiff’s
Second Amended Complaint in these circumstances is proper. See Brunson-Bedi, 2018 WL
2084171, at *9 (declining to grant discretionary extension, despite “an even split in the factors”
in light of the plaintiff’s “utter failure to provide an explanation for the extensive delay in
service”); Gibbs v. Imagimed, LLC, No. 11-CV-2949, 2013 WL 2372265, at *4 (S.D.N.Y. May
30, 2013) (declining to grant discretionary extension, despite split in the factors, because the
Plaintiff “made no effort whatsoever to comply with the Rules governing service”); Nat’l Union,
1994 WL 463009, at *4 (“For though leniency may sometimes be appropriate for those who have
in good faith attempted timely service, to afford it to litigants who have failed to make even the
most basic efforts would turn Rule 4(m) into a toothless tiger.”).
III. Conclusion
For the foregoing reasons, Defendants’ Motion To Dismiss is granted. 4 Plaintiff’s Second
Amended Complaint is dismissed. Dismissal is necessarily with prejudice because three-year

4

The Court need not address Defendants’ argument for dismissal under Federal Rule of
Civil Procedure 41(b). (Defs.’ Mem. 17.) As to Defendants’ argument that Plaintiff fails to state
a claim of excessive force, (Defs.’ Mem. 18), the Court has already held that Plaintiff states an
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statute of limitations on Plaintiff's claims expired in May 2017, see Zapata, 502 F.3d at 194 n.3
("In section 1983 actions within New York, the applicable limitations period is ... three years."
(citation and internal alterations omitted)), and any amendment to the Second Amended
Complaint would, therefore, be "futile," Terry v. Inc. Vil!. ofPatchogue, 826 F.3d 631, 633 (2d
Cir. 2016); see also Brunson-Bedi, 2018 WL 2084171, at *2 ("Amendment is ... futile if a
plaintiff's claims should be dismissed for improper service which cannot be cured by further
amendment of a complaint." (internal alterations, quotation marks, and citation omitted)); see
also Nat 'l Union, 1994 WL 463009, at *7 (dismissing case pursuant to Rule 4(m) even though it

would be time-barred if re-filed).
The Clerk of Court is respectfully requested to close this case.
SO ORDERED.
Dated: December~' 2018
White Plains, New York
ETHM. K RAS
ED STATES DISTRICT JUDGE

excessive force claim to survive a motion to dismiss, (see Sept. 2016 Op. 17-24.) Defendants
have not filed a motion for reconsideration, nor do Defendants now present any new arguments
in their one-page discussion of Plaintiffs excessive force claim. Accordingly, the Court declines

to revigit itg eID1lier ruling.
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