Thurmond v. Thomas-Walsh et al

Filing 55

MEMORANDUM OPINION AND ORDER denying 43 Motion for Judgment on the Pleadings. Defendants motion for judgment on the pleadings is DENIED. Plaintiff's First Amendment retaliation claim shall proceed to discovery. Pursuant to Magistrate Jud ge McCarthy's directives, Defendants are directed to notify Judge McCarthy within three business days of the date of this Memorandum Opinion and Order that Defendants' motion has been adjudicated. (See June 8, 2020 Entry). The Clerk is directed to terminate the pending motion (Doc. 43) and mail a copy of this Order to Plaintiff at the address provided on the docket. SO ORDERED. (Signed by Judge Philip M. Halpern on 1/7/2021) (ks)

Case 7:18-cv-00409-PMH-JCM Document 55 Filed 01/07/21 Page 1 of 6

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
KEVIN THURMOND,
Plaintiff,
v.

MEMORANDUM OPINION
AND ORDER

AVION THOMAS-WALSH and FREDERICK
BERNSTEIN,

18-CVv-00409 (PMH)

Defendants.
---------------------------------------------------------X
PHILIP M. HALPERN, United States District Judge:
Plaintiff Kevin Thurmond (“Plaintiff”), who is presently incarcerated at the Woodbourne
Correctional Facility and who is proceeding pro se and in forma pauperis, commenced this
action pressing claims against Avion Thomas-Walsh and Frederick Bernstein (collectively
“Defendants”) in a Complaint dated January 8, 2018 and filed via ECF on January 12, 2018.
(Doc. 2). Plaintiff asserted, pursuant to 42 U.S.C. § 1983, an Eighth Amendment claim alleging
that Defendants were deliberately indifferent to his medical needs, and a First Amendment claim
alleging that Defendants retaliated against him for filing grievances. On March 29, 2019, Judge
Karas, who presided over this action before it was reassigned to me on April 16, 2020, dismissed
Plaintiff’s Eighth Amendment claim. (Doc. 26).
Thereafter, on April 6, 2020, Defendants filed a motion for judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 43; Doc. 44, “Defs. Br.”). Defendants
argue that the statute of limitations on Plaintiff’s First Amendment claim for relief expired on
January 8, 2018 and that Plaintiff’s Complaint was not filed by that date. (Defs. Br. at 6). While
Defendants acknowledge that Plaintiff’s Complaint is dated January 8, 2018, Defendants argue
that Plaintiff “did not deliver [his Complaint] for mailing on 1/8/2018,” but rather that Plaintiff

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“presented [the Complaint] for security clearance on 1/9/2018 and paid for postage on 1/10/2018
which resulted in [the Complaint being] mailing on 1/10/2018.” (Id. at 7). Thus, according to
Defendants, “[t]he earliest [Plaintiff] presented [the Complaint] for security clearance was
1/9/2018 . . . one (1) day after the statute of limitations expired.” (Id. at 7-8). In support of their
motion, Defendants submitted to the Court the Declaration of Brenda Clark dated April 3, 2020
(Doc. 54, the “Clark Declaration”)1 and a document entitled “Disbursement or Refund Request”
dated January 9, 2018 (Doc. 43-2, the “Disbursement Form”).
Plaintiff filed opposition to Defendants’ motion on May 7, 2020 (Doc. 45) and the motion
was fully briefed as of May 11, 2020 with the filing of Defendants’ Reply (Doc. 46).
For the reasons that follow, Defendants’ motion for judgment on the pleadings is
DENIED.
STANDARD OF REVIEW
“The standards to be applied to a motion for judgment on the pleadings pursuant to Rule
12(c) are the same as those applied to a motion to dismiss pursuant to Rule 12(b).” S.E.C. v.
Rorech, 673 F. Supp. 2d 217, 220 (S.D.N.Y. 2009) (citing Cleveland v. Caplaw Enters., 448
F.3d 518, 521 (2d Cir. 2006)). On a Rule 12(b)(6) motion, the court may dismiss a complaint for
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). “To survive
a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face
“when the ple[d] factual content allows the court to draw the reasonable inference that the

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Defendants purported to attach, as Exhibit A, the Clark Declaration to their motion filed on April 6,
2020. (See Defs. Br. at 1). The document attached as Exhibit A was not the Clark Declaration. (See Doc.
43-1). Accordingly, on January 5, 2021, the Court directed Defendants to file the referenced Clark
Declaration (Doc. 53), and the Clark Declaration was filed that same day (Doc. 54).
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defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant acted unlawfully.” Id. The factual allegations pled “must be enough
to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“When there are well-ple[d] factual allegations [in the complaint], a court should assume
their veracity and then determine whether they plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. Thus, the court must “take all well-ple[d] factual allegations as true, and
all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff.” Leeds
v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to
“legal conclusions, and threadbare recitals of the elements of the cause of actions.” Harris v.
Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662). Therefore, a plaintiff must
provide “more than labels and conclusions” to show entitlement to relief. Twombly, 550 U.S. at
555.
A complaint submitted by a pro se plaintiff, “however inartfully ple[d], must be held to
less stringent standards than formal pleadings drafted by lawyers.” Estelle v. Gamble, 429 U.S.
97, 106 (1976) (quoting Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (internal quotation
marks omitted)). Because pro se plaintiffs are often unfamiliar with the formalities of pleading
requirements, courts must apply a more flexible standard in determining the sufficiency of a pro
se complaint than they would in reviewing the complaint of an individual represented by
counsel. Smith v. U.S. Dep’t of Just. and Immigr. & Naturalization Serv., 218 F. Supp. 2d 357
(W.D.N.Y. 2002). While “[p]ro se complaints are held to less stringent standards than those
drafted by lawyers, even following Twombly and Iqbal . . . dismissal of a pro se complaint is
nevertheless appropriate where a plaintiff has clearly failed to meet minimum pleading

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requirements.” Thomas v. Westchester Cty., No. 12-CV-6718, 2013 WL 3357171, at *2
(S.D.N.Y. July 3, 2013) (internal citations omitted); see also Chavis v. Cappius, 618 F.3d 162,
170 (2d Cir. 2010) (“Even in a pro se case, [] ‘although a court must accept as true all of the
allegations contained in a complaint, that tenet is inapplicable to legal conclusions, and
threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.’” (quoting Harris v. Mills, 572 F.3d 66, 72 (2d Cir.2009))).
Furthermore, regarding the materials considered on a motion for judgment on the
pleadings, “the court considers ‘the complaint, the answer, any written documents attached to
them, and any matter of which the court can take judicial notice for the factual background of the
case.’” L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (quoting Roberts v.
Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)). “A complaint is [also] deemed to include any
written instrument attached to it as an exhibit, materials incorporated in it by reference, and
documents that, although not incorporated by reference, are ‘integral’ to the complaint.” Id.
(quoting Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
ANALYSIS
The Court’s analysis begins and ends with addressing the documents properly considered
on the present motion. As an initial matter, “a pro se prisoner's complaint is considered filed on
the date that the prisoner delivers the complaint to prison officials to send to the court.” Moreau
v. Peterson, No. 14-CV-0201, 2015 WL 4272024, at *5 (S.D.N.Y. July 13, 2015), aff'd 672 F.
App’x 119 (2d Cir. 2017) (citing Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)); see also
Walker v. Jastremski, 430 F.3d 560, 562 n.1 (2d Cir. 2005) (“It is well-settled . . . that the date of
filing a federal complaint by a pro se prisoner is, for statute of limitations purposes, the date of
delivery to prison authorities.”). Defendants urge this Court to consider the Clark Declaration

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and the Disbursement Form to establish that Plaintiff’s Complaint was not delivered to prison
officials until January 9, 2018, at the earliest. (Defs. Br. at 5-6). Regarding the Disbursement
Form, Defendants assert that judicial notice may be taken of prison records pursuant to Federal
Rule of Evidence 803(6). (Id. at 5). Even if this were so, the Disbursement Form, standing alone,
does not enable the Court to determine the date on which Plaintiff’s Complaint was filed. The
Disbursement Form shows only that “Legal Postage” was deducted from Plaintiff’s account on
January 9, 2018. (Doc. 43-2). The Disbursement Form does not identify the item Plaintiff sought
to mail, or, more importantly, identify the date on which Plaintiff delivered his Complaint to
prison officials for mailing.
As for the Clark Declaration, the Court does not consider it on the present motion. On a
Rule 12(c) motion, the Court may only consider the pleadings, documents attached to the
pleadings, matters of which the court can take judicial notice, and documents that are integral to
the complaint. L-7 Designs, 647 F.3d at 422. The Clark Declaration apparently details the
procedure Plaintiff followed when filing his Complaint in January 2018. There is no basis upon
which the Court may properly consider the Clark Declaration at this juncture. Even if the Court
were to consider the Clark Declaration, it simply does not answer the foundational question of
fact at issue: when did Plaintiff turn over his Complaint to prison officials?
Plaintiff’s Complaint is dated January 8, 2018, and the Court assumes, for the purpose of
adjudicating Defendants’ motion, that the statute of limitations expired on that day. Thus,
accepting Plaintiff’s Complaint as true, as the Court must at the pleading juncture, Plaintiff’s
First Amendment retaliation claim is not time barred. Accordingly, the Court cannot determine,
at this juncture and without the benefit of discovery, whether Plaintiff’s Complaint is untimely.

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CONCLUSION
Defendants motion for judgment on the pleadings is DENIED. Plaintiff’s First
Amendment retaliation claim shall proceed to discovery. Pursuant to Magistrate Judge
McCarthy’s directives, Defendants are directed to notify Judge McCarthy within three business
days of the date of this Memorandum Opinion and Order that Defendants’ motion has been
adjudicated. (See June 8, 2020 Entry).
The Clerk is directed to terminate the pending motion (Doc. 43) and mail a copy of this
Order to Plaintiff at the address provided on the docket.
SO ORDERED:

Dated: New York, New York
January 7, 2021

____________________________
Philip M. Halpern
United States District Judge

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