Rosario v. Lewis et al, No. 1:2010cv06664 - Document 11 (S.D.N.Y. 2011)
Court Description: OPINION: The case is administratively re-opened. The Pro Se Office is directed to mail Plaintiff an additional Service Package. Plaintiff is directed to properly serve the County Defendants within thirty (30) days of receipt of the Service Package. (Signed by Judge Robert W. Sweet on 9/6/2011) (jfe)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----x CARLOS ROSARIO, Plaintiff, 10 Civ. 6664 OPINION -againstNYS Trooper P. CIRIGLIANO, NYSE Trooper J. LEWIS, CARL E. DUBOIS, Sheriff, ,~.'" ",' DOMINICK ORSINO, Corrections Administrator, rr==========." Officer "JOHN DOE" and Officer "JANE DOE", USOC SDNY DOC'UM i ELECTf Defendants. ------x "'r dCALL g~; .<JLED lZin 'D:q j Sweet, D.J. Orange County Defendants Sheriff Carl E. Dubois ("Dubois") and Corrections Administrator Dominick Orsino ("Orsino") (collectively, the "County Defendants") have moved to smiss the complaint of plaintiff Carlos Rosario ("Rosario" or the "Plainitff"). The County Defendants have moved to dismiss on the grounds that Plaintiff failed to properly serve them, pursuant to Federal Rule of Civil Procedure 12(b) (2) and (5), as required under Federal Rule of Civil Procedure 4(e) as well as for failure to state a aim on statute of limitations grounds, under Rule 12(b) (6). 1 ,I For the reasons set forth below, the case is administratively re-opened and Plaintiff is directed to properly serve the County Defendants within thirty (30) days of receipt of the Rule 4 Service Package. Prior Proceedings On August 12, 2010, Plaintiff submitted a Complaint this civil rights action, brought pursuant to 42 U.S.C. and Title II of the Americans with Disabilities Act the Office of the Pro Se Clerk of this Court. 1 § 1983 ("ADA"), to Plaintiff's complaint alleges that Defendants Dubois, the Sheriff of Orange County, and Orsino, the Corrections Administrator of the Orange 1 The County Defendants assert that Plaintiff filed his complaint "on or about september 3, 2010 n (Def. Mem. 1.), presumably because the summons that issued was dated September 3, 2010 see Docket Sheet). While the Complaint was technically filed on September 8, 2010 (Docket No.2), for practical purposes, the date that Plaintiff submitted the Complaint to the Pro Se Office is the relevant event. Toliver v. Sullivan County, 841 F.2d 41, 42 (2d Cir. 1988) ("At least where in forma pauperis relief is granted, the action should be treated as timely, provided the complaint was received by the [pro sel clerk's office prior to the expiration of the limitations period.") . Some courts have understood pro se complaints to be in some sense "filed n at the time of receipt by the Pro Se Office, and in most cases there is no difference. See, e.g., Lunardini v. Mass. Mut. Life Ins. Co., 696 F. Supp. 2d 149 (D. Conn 2010) ("The Second Circuit has answered the question of when a complaint is considered 'filed"1 if it is accompanied by an IFP application that is later granted (citing Toliver, 841 F.2d 41)). The effective termination of the limitations period is in fact due to equitable tolling during the pendency of the in forma pauperis ("IFp n ) application and subsequent filing of the complaint by the Pro Se Office, on the grounds that such delay is outside of the litigant's control. See Celestine v. Cold Crest Care Center, 495 F. Supp. 2d 428, 432 & n.4 S.D.N.Y. 2007). Regardless, because Plaintiff's IFP application was subsequently granted (Docket No.1), the statute of limitations clock stopped running on the day the Complaint was received by the Pro Se Clerk's Office (here, at least by August 12, 2010, the day it was stamped received (Docket No.2)). 2 county Correctional Facility ("OCCF") violated his Eight and tIe II of the ADA. Fourteenth Amendment rights as well as ~ (Compl. III. Attachment to Statement of Claims.) According to the Complaint, Plaintiff is paralyzed from his waist down and utilizes a wheelchair as a result of a gunshot he received in 1986. Id. The Complaint asserts that while incarcerated at OCCF in August of 2007, Defendants provided aintiff with inadequate medical care and failed to provide necessary accommodations for his disability. Id. This action stems from Plaintiff's arrest on August 16, 2007 by defendants New York State Troopers P. Cirigliano ("Cirigliano") and J. Lewis ("Lewis") (collectively, the "Defendant State Troopers" or the "Troopers"). III (A) .) (Compl. ~ The Complaint alleges that on August 16, 2007, while Plaintiff was riding a vehicle that Gregory Ransom ("Ransom") was driving on State Route 17 in Goshen, New York (Orange County), that vehicle was pulled over by the Defendant State Troopers at around 2:00 A.M. faulty tail lights. III, Attachment to Statement of Claims.) (Compl. ~ Subsequent to a search, the Troopers found marijuana in the trunk of the vehicle. (rd.) Plaintiff and Ransom were arrested for criminal possession of marijuana. Id. According to Plaintiff, the Troopers were not in possession of a vehicle with which to 3 transport disabled individuals and so handcuffed Plaintiff and then lifted him to place him in the police car. Plaintiff alleges that "as a result," the Defendant State Troopers broke his right leg and caused him severe pain. Id. According to Plaintiff, upon arriving at OCCF, he was denied pain medication, adequate medial care, and accommodations for his disability by the County Defendants. (Id.) As alleged in the Complaint, Plaintiff arrived at OCCF on August 16, 2007 and was released on August 20, 2007. a tot of four days. PIa (Id.) iff contends that Defendants did not provide him with any medical attent day of his incarceration. He was incarcerated Id. PIa until the third iff asserts that the medical attention he did receive was "sorely inadequate, resulting in continuation of severe spasms and pain." The Complaint further (Id.) leges that Defendants failed to provide him with a special mattress to prevent bed sores, which he sustained as a result, and that Defendants did not provide him with a handicapped bathroom, resulting in Plaintiff having to defecate in his bed. (Id.) Plaintiff asserts that at the time two of defendant DuBois' deputies (Officers "John Doe" and "Jane Doe") 4 transported him from the Goshen Town Courthouse, Judge Thomas Cione witnessed aintiff being lifted by Officers ftJohn Doe" and ftJane Doe" and placed into a police vehicle. Id. According to the complaint, Judge Cione asked the deputies if they had a handicapped vehicle, to which they responded they did (Id. ) not. According to the Complaint, Plaintiff was released on his own recognizance, and the case against him was subsequently dismissed and sealed. Plaintiff maintains that the actions of County Defendants were under color of state law, and a result of (1) "an officially adopt fai or promulgated policy that resulted in to properly train and equ "pervas their oyees," (2) a and long-standing" "informal, unwritten policy" of ling to properly train or s rvise employees or supply equipment such that "they could avoid violating [Plaintiff's] civil s and the Americans with sabilities Act," and (3) the County Defendants did not properly equip the jail and vehicles for Town Court. transport of handicapped (Id. Troopers, Plaintiff c soners to and from With regard to the Defendant State ims they were acting under the color of state law when they failed to transport him in a "properly 5 equipped vehicle for the three factors. capped" as a result of the same (Id. Plaintiff claims that De s' actions caus him sms, great pain, and to undergo medical to suffer "severe treatment that would not have been [otherwise] necessary," and the amount of $500,000. asserts damages (Id.) On September 10 1 2010, a Rule 4 service package was mailed to Plaintiff at the address not on the Court's docket by way of Federal Express AirBil1 No. 873199549310. Sheet.) that PI See Docket On March 15, 2011, the Court issued an order finding iff had filing this action led to serve defendants within 120 days of l violation of Federal Rule of Civil Procedure 4(m), dismissing the action without prejudice, and giving Plaintiff thirty days to show cause why the case should be re-opened. (Docket No.3.) 2 On April 1, 2011, the County Defendants filed the instant motion to dismiss, which was marked fully submitted on May 11, 2011. The order administratively closing this case incorrectly stated that Plaintiff's complaint was filed on September 30, 2010. 6 The Applicable Standards under Rules Where a defendant moves for dismi 12(b) (2), (5), and (6), "[b]efore addressing Defendants' Rule 12(b) (6) motion to dismiss, the Court must fist address the preliminary questions of service and personal jurisdiction." Mende v. Milestone Tech, Inc., 269 F. Supp. 2d 246, 251 (S.D.N.Y. 2003) (citing Arrowsmtth v. United Press Int'l, 320 F.2d 219, 221 (2d Cir. 1963) ("logic compel [s] tial consideration of the issue of jurisdiction over the defendant a court without such jurisdiction lacks power to dismiss a complaint for failure to state a claim.")) i --'-s.. .: e. . : e;. . . . ,; . . . . ,;s.=-o.=- Dynegy Midstream Servs. V. Trammochem, 451 F.3d 89, 94 (2d Cir. 2006) ("'Before a federal court may exercise personal jurisdiction over a defendant, the procedural requirement of summons must be satisfied. '" ce of (quoting Omni Capital Int'l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987)). In considering such a motion, a court may consider documents submitted outside the pleadings. Big Apple ~yrotechnics and Multimedia Inc., v. Sparktacular Inc., No. 05 Civ. 994 (KMW) , 2007 WL 747807, *1 (S.D.N.Y. March 9, 2007) i Darden v. Daimler Holding Corp., 191 F. Supp. 2d 382, 387 (S.D.N.Y. 2002) Court must look to matters outsi whether it the compla jurisdiction") . 7 ("a to determine In deciding a motion based upon insufficient service of process pursuant to Rule l2(b) (5), the Court must look to Rule 4. See, e.g., DeLuca v. Accessit 2d 54, 64 (S.D.N.Y. 2010). , 695 F. Supp. Rule 4(e) states in relevant part that an individual may be served by: (I) following state law for serving a summons . . ; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving copy of a each at the individual's dwelling or usual place abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each authorized by appointment or receive service of Fed. R. Civ. Pro. 4(e). be served us to an agent by law to process. Under New York law, an individual may one of the following methods: 1. by delivering the summons within the state to the person to be served; or 2. by delivering the summons within the state to a person of suitable age and discretion at the actual place of business,3 dwelling place or usual place of abode of the person to be served and by New York law defines "actual place of business" for purpose of this section as including "any location that the defendant, through regular solicitation or advertisement, has held out as its place of business." N.Y. 3 C.P.L.R. 308 (6) . 8 either mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first ass mail to the person to be served at his or her actual place of business in an envelope bearing the legend "personal and confidential" and not indicating on the outside thereof/ by return address or otherwise/ that the communication is from an attorney or concerns an action against the person to be served/ such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the cl of the court. . within twenty days of either such delivery or mailing/ whichever is effected later; service shall be complete ten days after such filing; proof of service shall identify such person of suitable age and discretion and state the date/ time and place of service. .; or 3. by delivering the summons within the state to the agent for service of the person to be served . / 4. where service under paragraphs one and two cannot be made with due diligence/ by fixing the summons to the door of either the actual place of business/ dwelling place or usual place of abode within the state of the person to be served and by ther mailing the summons to such person at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope [as described above] / such fixing and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such affixing or mailing/ whichever is effected later; service shall be complete ten days after such filing. .j 5. in such manner as the court/ upon motion without notice/ directs, if service is impracticable under paragraphs one, two and four of this section. 9 N.Y. C.P.L.R. 308. When a defendant challenges service of process, "the burden proof is on the plaintiff to show the adequacy of service." DeLuca, 695 F. Supp. 2d at 65-66 (quoting Howard v. Peat Marwick Goerdeler, 977 F. Supp. 654, 658 (S.D.N.Y. 1997) f'd 173 F.3d 844 (2d Cir. 1999». I In considering a 12 (b) (6) , the Court motion to dismiss pursuant construes the complaint to Rule liberally, "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences Chambers v. Time Warner, ting Gregory v. Though the court Inc., Daly, must complaint as true, 243 in the plaintiff's 282 F. 3d 147, 152 F.3d accept the 687, 691 factual favor. /I (2d Cir. 2002) (2d Cir. 2001». allegations of a it is "not bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. --- (quoting Bell Atl. U.S. Corp. v. dismissal, 129 S .Ct. Twombly, 550 1937, 1949 (2009) U.S. 544, 555 (2007}). To survive "a complaint must contain sufficient factual matter, accepted as true, on its face.' U.S. at 570). /I to 'state a claim to relief that is plausible Iqbal, 129 S.Ct. In other words, at 1949 (quoting Twombly, 550 Plaintiff must allege sufficient 10 facts to "nudge [] to plausible. their claims across the 1 ine from conceivable Twombly, 550 U.S. at 570. 1I In addressing the present motion, the Court is mindful that Rosario plaintiffs is lack familiarity [courts] requirements, liberally, proceeding than with the must [they] submitted by counsel. 232 F.3d 135, [pro se pleadings] construe Lerman v. II when Bd. 139-40 (2d Cir. (2d Cir. pro of se se pleading complaints with Coombe, se status relevant Triestman v. 2006) reviewing a complaint of Elections in Ci 2000). Courts of "interpret 174 (quot Fed. rules F.3d 276, 279 (2d r. 14 However, compliance law.'" most 'to raise the strongest arguments that they (quoting 1994)) . "Since formalities would Mcpherson v. suggest. '" 1999) se. applying a more flexible standard to evaluate their sufficiency N.Y. pro F.3d 787, 790 (2d Cir. 'does not exempt a party from of procedural Bureau of Prisons, Traguth v. Zuck, 710 and substant 470 F.3d 471, F.2d 90 1 95 477 (2d Cir. 1983)). Plaintiff Failed to Properly Serve the County Defendants As reflected in the affidavits of Defendants Dubois and Orsino, as of the filing of Defendants 11 1 motion l neither was served in any of the methods set forth in Rule 4(e) or under New York law. Neither of the County Defendants was personally the summons and complaint, and neither was served a copy mailed copies either at their places of business or their homes. Defendants' fidavits state that neither designated anyone to accept service on their behalf, and that neither received service by way of Plaintiff leaving a copy the summons and complaint at each defendant's home with a person of suitable age. In opposition to the present motion, P recognizes as much. intiff Plaintiff submits that Peter Stagl ("Stagle") attempted service of process on Plaintiff's behalf. By way of affidavit, Stagle states that he delivered the Summons and Complaint for Dubois to a uniformed representative at the Orange County Sheriff's Office on January 3, 2011. Ex. I, Stagle Aff.) On the same day, (Pl. Mem. delivered papers for Orsino to a uniformed representative at the Orange County Sheriff's Office. (Id. ) Plaintiff avers that upon submission of his affidavit in opposition to the County Defendants' motion to dismiss, he additionally mailed copies of the Summons, Complaint, waiver, and County Defendants. f addressed stamped envelopes to the (Pl. Aff. in Opp'n 12 ~ 4 & Ex. 2.) While taken together t Plaintiff has both delivered and mailed the Complaint and Summons as required under New York law t 4 he did not do so within 20 days of each other as necessary. Plaintiff accordingly led to serve the County Defendants as prescribed under Rule 4 and as outlined in the Rule 4 Service Court to PI Package provided by Plaintifft s iff. fidavit further maintains that he is paralyzed from the waist down t wheelchair bound t and that he only income from Social Security {Pl. Aff. As such t he does not have the means to hire a professional process server and personal service is a hardship. (Id. ) Rule 4 requires that if a defendant is not served within 120 days after the complaint is filed t the court must dismiss the action without prejudice against that defendant or that service be made within a specified t Civ. Pro. 4(m). good cause for Rule 4(m) provides that if the Fed. R. aintiff shows failure t "the court must extend the time for ce for an appropriate period." rd. "Di ct courts also It is not clear from the ' submissions if Plaintiff has otherwise fulfilled the requirements for service by mail, i.e. that the by sent by way of first class mail in an envelope bearing the "personal and confidential" and not indicating that the communication concerns an action against the person served. 5 Plaintiff's Affidavit in opposition to the County Defendants' Motion to Dismiss is treated as a motion to reopen. 4 13 have discretion to enlarge the 120-day period even absence of good cause. (2d Cir. 2010) the v. Pataki, 378 Fed. Appx. 50, 52 1I (citing Zapata, 502 F. 3d at 196). The requirements good cause are not defined in the Rule, though the Second Circuit has recently stated that "We will not overrule a district court's dismissal for lack of service unless the appellant 'advance[s] some colorable excuse for neglect. III __~______v . _N ._Y_.__ _ _____~_'_tl 383 Fed. Appx. 77 e __ __ P_o_l (2d Cir. 2010) (citing Zapata v. City of New York, 502 F. 3d 192 198 (2d Cir. 2007)) 498 1 i 1 cf. Bogle-Assegai v. Connecticut, 470 F.3d 508 (2d Cir. 2006) (upholding dismissal where plaintiff "offered no excuse whatever McGregor v. U.S., 933 F.2d 156 the defect 1 service ll 159 60 (2d Cir. 1991) that attorney neglect did not amount to "good cause ll ). ) ; (finding In the context of discretionary extensions of the service period, absent a showing of good cause, Circuit has noted that a plaintiff must "ordinarily advance some colorable excuse for the neglect lf l demonstrate that an fort was made to effect service or seek an extension within a reasonable period. F.3d at 197-98 (citation omitted) . Here l while it appears that Plaintiff made no effort to effect service during the 120-day period and did not seek an 14 l extension, he has shown that an effort was made to effect service (if after the 120-day period ran), and, more importantly, advanced a colorable excuse for the failure. Court is addittionally mind se. The that Rosario is proceeding pro The grant of an extension for proper service of process is therefore appropriate, if not required under Rule 4's mandatory language. See Fed. R. Civ. Pro. 4(m) i Zapata, 502 F.3d 197, ("Some circuits require district courts to engage in a formal two step inquiry to first evaluate good cause and then demonstrate their awareness that an extension may be granted even in the absence of good cause. In our view, whether such a bifurcated inquiry would be useful is a question best left to the district court: the two steps inevitably involve a weighing of overlapping equitable considerations") . The Court declines to reach Defendants' contention that the Complaint should be dismissed for failure to state a claim, or address whether statute limitations ceased to be tolled beyond the 120 day period for service under Rule 4(m),6 as the Court is yet without jurisdiction to do so. Arrowsmith, 320 F.2d 219, 221. See Frasca v. 921 F.2d 450, 453 (2d Cir. 1990) ("The 120 days [for service] runs from the ing of the complaint, and the statute of limitations for the underlying claim is tolled during that period. If service is not complete by the end of the 120 days, however, the governing statute of limitations again becomes applicable . . If). 6 15 CONCLUSION For the foregoing reasons, the case is administratively re-opened. The Pro Se Office is directed to mail Plaintiff an additional Service Package. intiff is directed to properly serve the County Defendants within thirty (30) days of receipt of the Service Package. It is so ordered. New York, NY September 6 , 2011 U.S.D.J. 16
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