Allaway v. McGinnis

• Decision Date: 28 March 2005
• Docket Number: No. 03-CV-6071L.,03-CV-6071L.
• Citation: 362 F.Supp.2d 390
• Parties: Robert ALLAWAY, Plaintiff, v. Superintendent Michael McGINNIS, et al., Defendants.
• Court: U.S. District Court — Western District of New York

362 F.Supp.2d 390

Robert ALLAWAY, Plaintiff, v. Superintendent Michael McGINNIS, et al., Defendants.

No. 03-CV-6071L.

United States District Court, W.D. New York.

March 28, 2005.

Robert Allaway, Pine City, NY, pro se.

Charles D. Steinman, Esq., New York State Attorney General, Rochester, NY, for Defendants.

DECISION AND ORDER

LARIMER, District Judge.

INTRODUCTION

Plaintiff, Robert Allaway, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his First, Eighth, and Fourteenth Amendment rights during and after an altercation at Southport Correctional Facility on May 28, 1999. Plaintiff has sued eighteen defendants who, at all relevant times here, were correctional officers, supervisors, or medical personnel at Southport.¹

Before the Court is defendants' motion for summary judgment, brought pursuant to FED. R. CIV. P. 56 (Dkt.# 34). Defendants maintain that plaintiff's complaint is barred by the statute of limitations and that dismissal is warranted in any event because plaintiff failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a) ("PLRA").

For the reasons set forth below, defendants' motion is denied.

PROCEDURAL BACKGROUND

This is the second action that plaintiff filed against the defendants in connection with the May 28, 1999 incident. Shortly after the incident, on July 21, 1999, plaintiff commenced a § 1983 action in federal court alleging essentially the same claims against the same defendants based on the same facts as are asserted here. See Allaway v. McGinnis, et al., W.D.N.Y. 99-CV-6310L ["Allaway I"], Dkt. # 1. After Allaway I had been pending for two years, defendants moved for summary judgment based on, inter alia, plaintiff's failure to exhaust administrative remedies. See Allaway I, Dkts. 73, 85, 114.

In two Decisions and Orders, I granted defendants' motions based on the Supreme Court's then-recent decision in Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002). See Alaway I, Dkts. 111, 116. Although it appeared plaintiff had taken some steps after the complaint was filed to exhaust his remedies with respect to some of his claims, I could not consider those measures under the PLRA and Porter because complete exhaustion was required before commencement of the action. I held, therefore, that the "best course of action [was] to dismiss the entire complaint without prejudice to afford Allaway an opportunity to exhaust his administrative remedies." Allaway I, Dkt. # 116, pp. 6-7 (emphasis added). Final judgment dismissing plaintiff's complaint was entered on September 18, 2002.

Plaintiff did not appeal from dismissal of Allaway I. Instead, he attempted to fully exhaust his administrative remedies at the facility and appeals levels prior to refiling his complaint. Southport officials rejected his attempt to file any grievances and returned all paperwork to him. Prison officials determined that the grievances were untimely and that there were no mitigating circumstances warranting the late filing. (Dkt.# 42). Plaintiff thereafter commenced this subsequent action by filing the complaint herein with prison officials on or about February 12, 2003.

DISCUSSION

I. Statute of Limitations

The statute of limitations for constitutional torts brought pursuant to 42 U.S.C. § 1983 in New York State is three years. N.Y. Civ. Prac. L. § 214(5); see Owens v. Okure, 488 U.S. 235, 249-51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Dory v. Ryan, 999 F.2d 679, 681 (2d Cir.1993). It is undisputed that plaintiff filed the complaint in this action in February 2003, more than three years after his claims accrued in May and June of 1999. Defendants argue that the complaint, therefore, must be dismissed as untimely. In seeking such relief, however, defendants have not considered the application of any of New York's tolling provisions relative to the statute of limitations. I find that plaintiff is entitled to toll the statute of limitations pursuant to C.P.L.R. 205(a), and that this action is, therefore, timely.

It is well-settled that "when a federal court looks to state law to determine the most appropriate statute of limitations, it must also, so long as federal policy is not thereby offended, apply the state's rules as to the tolling of the statute." Cullen v. Margiotta, 811 F.2d 698, 719 (2d Cir.1987), overruled on other grounds, Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143, 107 S.Ct. 2759, 97 L.Ed.2d 121 (1987); see also Bd. of Regents of the Univ. of the State of N.Y. v. Tomanio, 446 U.S. 478, 484-92, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980). "The Supreme Court has instructed that in section 1983 actions, we borrow not only a state's limitations period but also its `tolling rules' ... unless applying the state's tolling rules `would defeat the goals of the federal statute at issue'." Pearl v. City of Long Beach, 296 F.3d 76, 80 (2d Cir.2002) (quoting Tomanio, 446 U.S. at 484-86, 100 S.Ct. 1790, and Hardin v. Straub, 490 U.S. 536, 539, 109 S.Ct. 1998, 104 L.Ed.2d 582 (1989)).

New York's tolling statute, C.P.L.R. 205(a), provides that:

if an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff ... may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period.

N.Y. C.P.L.R. § 205(a) (Consol.1999). This provision tolls the statute of limitations during the pendency of an action that has been terminated for what is usually a curable or procedural defect. See Cecere v. County of Westchester, 814 F.Supp. 378, 381 (S.D.N.Y.1993).

Dismissal of an action without prejudice for failure to exhaust administrative remedies, such as the dismissal in Allaway I, is precisely the type of termination subject to the safety net created by C.P.L.R. 205(a). See Gashi v. County of Westchester, No. 02 Civ. 6934, 2005 WL 195517, *9 (S.D.N.Y. Jan. 27, 2005) (finding that dismissal without prejudice for failure to exhaust administrative remedies pursuant to the PLRA "is a manner of termination not listed as excluded from the protection of § 205(a)"); Mahony v. Bd. of Educ., 113 A.D.2d 942, 493 N.Y.S.2d 839 (2d Dep't 1985) (considering application of C.P.L.R. 205(a) to case previously dismissed for failure to exhaust administrative remedies in connection with an arbitration proceeding). As the Second Circuit has repeatedly held, the "[f]ailure to exhaust administrative remedies is often a temporary, curable, procedural flaw." Snider v. Melindez, 199 F.3d 108, 111 (2d Cir.1999).

The Second Circuit explained the purpose of C.P.L.R. 205(a) as follows:

Aggrieved plaintiffs who institute their actions within the time specified by law sometimes suffer a dismissal, intended as provisional, as the result of some remediable deficiency, such as omission of an allegation necessary to the pleading, failure to exhaust an administrative prerequisite, or the like. For reasons the plaintiff is powerless to protect against, such a dismissal may be ordered, as in this case, after the expiration of the time allowed for instituting such a suit, and without offering the plaintiff the opportunity to replead in the original action. Such a dismissal, although intended by the court as a temporary measure, nonetheless may have the effect of permanently barring the plaintiff's suit. Without the remedial benefit of § 205(a), it would be unclear how much time, if any, the plaintiff had in which to reinstitute the suit.

The purpose of § 205(a) is to avert unintended and capricious unfairness by providing that if the first complaint was timely but was dismissed for such curable reasons, the suit may be reinstituted within six months of the dismissal.

Hakala v. Deutsche Bank AG, 343 F.3d 111, 115 (2d Cir.2003).

Applying these principles here, I find that C.P.L.R. 205(a) applies and that plaintiff's complaint in this subsequent action is timely. Therefore, defendants' motion to dismiss on untimeliness grounds is denied.

Plaintiff's first action "terminated" within the meaning of C.P.L.R. 205(a) on September 17, 2002, the date that final judgment was entered dismissing plaintiff's complaint without prejudice. See Cecere, 814 F.Supp. at 381 (applying C.P.L.R. 205(a) and holding that "entry of judgment under Fed. R. Civ. P. 58 marks termination of a case for purposes of restarting the running of time limitations"); Franklin Nursing Home v. Axelrod, 148 Misc.2d 556, 560 N.Y.S.2d 924 (1990) (prior federal action "terminated" on date of the entry of final judgment dismissing the final cause and complaint in its entirety, not on the date of the decision dismissing plaintiff's state-law claims on jurisdictional grounds); see also Maki v. Grenda, 224 A.D.2d 996, 637 N.Y.S.2d 553 (4th Dep't 1996).

Plaintiff commenced the second action no later than February 12, 2003, the date of the postmark on the envelope containing plaintiff's complaint that was mailed by prison officials. See Houston v. Lack, 487 U.S. 266, 270, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (a prisoner "files" a complaint on the date that he delivers it to prison officials); Dory, 999 F.2d at 681-82 (same). Plaintiff's second complaint, therefore, was commenced within six months of the termination of Allaway I and is timely under § 205(a). See Gashi, 2005 WL 195517, at *9 (applying C.P.L.R.205(a) to toll statute of limitations of a § 1983 action that had previously been dismissed without prejudice...