Falso v. Town of Dansville Police Department et al

Filing 30

-CLERK TO FOLLOW UP-ORDER granting defendants' 24 Motion to Dismiss and dismissing the Amended Complaint in its entirety, with prejudice. Signed by Hon. David G. Larimer on 1/5/15. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________________
ANTHONY FALSO,

Plaintiff,
DECISION AND ORDER
13-CV-6521L
v.
TOWN OF DANSVILLE POLICE DEPARTMENT,
et al.,
Defendants.
________________________________________________

Plaintiff commenced this action pro se on September 4, 2013. Plaintiff’s Amended
Complaint asserts claims of common law negligence and violation of plaintiff’s rights under the
Fourth Amendment to the United States Constitution, pursuant to 42 U.S.C. §1983 (“Section
1983”) against the Town of Dansville Police Department, its Police Chief, and three police
officers. (Dkt. #1, #17). Defendants now move to dismiss the complaint under Fed. R. Civ.
Proc. 12(b)(6) on the grounds that, inter alia, the facts alleged by plaintiff fall outside of the
relevant three-year statute of limitations.
For the reasons that follow, defendants’ motion (Dkt. #24) is granted, and the complaint
is dismissed.
DISCUSSION
I.

Standard on a Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) provides that a complaint may be dismissed for

failure to state a claim upon which relief can be granted. Fed. R. Civ. Proc. 12(b)(6). In

deciding a motion to dismiss under Rule 12(b)(6), a court must “accept the allegations contained
in the complaint as true, and draw all reasonable inferences in favor of the non-movant.”
Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994). Nonetheless, “a plaintiff's obligation . . .
requires more than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Where, as here, the plaintiff is proceeding pro se, the Court will read the complaint
“liberally and interpret [it] to raise the strongest arguments [it] suggest[s].” McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).

II.

Defendants’ Motion to Dismiss
There is no dispute that plaintiff’s claims – common law negligence, and violation of

civil rights under Section 1983 – are both subject to a three-year statute of limitations. See e.g.,
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); N.Y. C.P.L.R. §214. Plaintiff commenced
this action on September 24, 2013, and thus, any claims arising prior to September 24, 2010 are
time-barred.
Plaintiff’s claims arise out of the defendants’ alleged failure to adequately investigate a
series of criminal allegations made by plaintiff against a third party, Edward Bennett
(“Bennett”), as well as contemporaneous criminal allegations made by Bennett against plaintiff,
beginning in or around December 2008. Plaintiff avers that on February 1, 2009, after repeated
refusals by defendants to follow up on his claims against Bennett, plaintiff was informed for the
last time that the defendants did not find plaintiff’s complaints against Bennett to be credible,
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and that the department had no plans to investigate the matter any further. (Dkt. #28 at ¶12(g)(l)).
Plaintiff urges the Court to find that his claims are timely, because they are in the nature
of a “continuing tort,” which has accrued anew every day since his initial complaint to
defendants about Bennett, and will continue in perpetuity until defendants respond appropriately
to that complaint with a full and fair investigation. “The continuing tort doctrine ‘provides that,
in certain tort cases involving continuous or repeated injuries, the statute of limitations accrues
upon the date of the last injury and that the plaintiff may recover for the entire period of the
[liable party]’s negligence provided that an act contributing to the claim occurs within the filing
period.’” Conte v. County of Nassau, 2013 U.S. Dist. LEXIS 105207 at *76 (S.D.N.Y. 2013),
quoting Mix v. Delaware & Hudson Ry. Co., Inc., 345 F.3d 82, 88 (2d Cir. 2003). While the
continuing tort theory has been applied to certain claims involving ongoing unlawful conduct,
plaintiff has produced, and the Court has not located, any authority that would support the
application of the continuing tort theory under circumstances similar to those presented here.
A Section 1983 claim accrues “when the plaintiff knows or has reason to know of the
injury which is the basis of his action.” Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.
2002). Here, the very latest possible date for the accrual of plaintiff’s claims, according to
plaintiff’s own factual allegations in opposition to the pending motion to dismiss, is February 1,
2009, when plaintiff was told conclusively that the defendants had no intention of engaging in
further investigation of his claims against Bennett, and that they had not found plaintiff to be
credible. At this point, plaintiff was aware of both the allegedly unlawful conduct, and the
resulting harm, which he alleges to consist largely of mental anguish, humiliation, and inability
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to obtain restitution for the crimes allegedly committed against him by Bennett. See generally
Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (accrual of a Section 1983 claim is determined
based on when plaintiff knew of or had reason to know of both “the allegedly impermissible
conduct and the resulting harm”); Drake v. Lab. Corp. of Am. Holdings, 2009 U.S. Dist. LEXIS
79355 at *7 n. 1 (S.D.N.Y. 2009) (under New York law, a negligence claim accrues on the date
plaintiff is injured, regardless of whether plaintiff is aware that it was occasioned by wrongful
conduct).
Because plaintiff’s claims accrued no later than February 1, 2009, the relevant statutes of
limitations expired on or about February 1, 2012, more than eighteen months prior to plaintiff’s
filing of this action. His claims are manifestly untimely.

CONCLUSION
For the foregoing reasons, plaintiff’s claims are untimely, and plaintiff has neither alleged
nor proved any basis (such as equitable estoppel) for the Court to extend the pertinent statutes of
limitations. Defendants’ motion to dismiss (Dkt. #24) is granted, and the Amended Complaint is
dismissed in its entirety, with prejudice.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
January 5, 2015

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