Bender v. General Services Admin.

• Citation: 539 F.Supp.2d 702
• Decision Date: 05 March 2008
• Docket Number: No. 05 Civ. 6459(GEL).,05 Civ. 6459(GEL).
• Parties: Sherry E. BENDER, Plaintiff, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants.
• Court: U.S. District Court — Southern District of New York

539 F.Supp.2d 702

Sherry E. BENDER, Plaintiff, v. GENERAL SERVICES ADMINISTRATION, et al., Defendants.

No. 05 Civ. 6459(GEL).

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

March 5, 2008.

COPYRIGHT MATERIAL OMITTED

Sherry E. Bender, pro se.

Glenn H. Egor, Rivkin Radler, LLP, for defendants.

OPINION AND ORDER

GERARD E. LYNCH, District Judge.

Plaintiff Sherry Bender, acting pro se, brought this suit against a number of defendants, alleging various causes of action arising out of her arrest following an altercation at a Social Security Administration service center in New York City. This Court previously dismissed claims against several of those defendants. See Bender v. General Services Admin. ("Bender I"), No. 05 Civ. 6459, 2006 WL 988241 (S.D.N.Y. April 14, 2006). Two additional defendants, HWA Security Patrol, Inc., and Ariel Del Valle, now move to dismiss the action as to them. For the reasons set forth below, that motion will be granted in part and denied in part.

BACKGROUND

The following facts are drawn from the allegations of the Amended Complaint, filed November 6, 2006, which must be taken as true for purposes of defendants' motion to dismiss for failure to state a claim, see Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir.1995).

On July 17, 2002, plaintiff Sherry Bender visited a Social Security Administration ("SSA") service center to file some paperwork related to a claim for disability benefits. (Am.Compl. ¶ 17.) While Bender was meeting with SSA Service Representative Jose Aybar, a misunderstanding arose, leading to a heated exchange between the two. (Id. ¶ 17-20.) Aybar telephoned defendant Ariel Del Valle, a security guard and employee of defendant HWA Security Patrol, Inc. ("HWA"), a private firm under contract with the Federal Government, and told Del Valle that "Bender was giving him a hard time." (Id. 1120.) After Del Valle arrived, he twice physically prevented Bender from approaching Aybar's manager, Robert Baldassano, with whom she wanted to speak, by "firmly press[ing] both of his hands on Ms. Bender's chest," by "push[ing]" her, and by "placing his hand on her chest." (Id. ¶ 20-21.) Following this confrontation, Del Valle called the police to complain that he needed assistance dealing with a "violent woman." (Id. ¶ 21.) A short time later, when Bender attempted to leave the building, Del Valle "forcefully grabbed" and "relentlessly mauled" her, pulled her toward the exit, and then "crush[ed]" Bender's thigh between two glass doors on her way out. (Id. ¶ 23.)

After briefly re-entering and then exiting the building, Bender was arrested by Federal Police Officers ("FPOs"). (Id. 1124.) During the arrest, Bender suffered various injuries to, herself and damage to her personal property. (Id.) She was held briefly by the FPOs, and then taken by ambulance to the psychiatric ward of a nearby hospital, where she was admitted, and held overnight. (Id. ¶ 25-32.) She was released the following day. (Id. ¶ 32,) No criminal charges were filed against her. (Id. ¶ 25.)

Just shy of three years later, on July 15, 2005, Bender filed a complaint alleging various torts and violations of her constitutional rights, and naming as defendants a number of government agencies, federal and city officials, and private parties. That complaint was amended on November 6, 2006, and defendants HWA and Del Valle moved to dismiss on July 19, 2007.

DISCUSSION

I. ADEQUACY OF SERVICE

Defendants first seek dismissal for insufficient service of process.¹ Plaintiff attempted to serve defendants by certified mail on November 7, 2005. (Decl. of Glenn H. Egor Ex. B.) Federal and New York rules provide a variety of mechanisms for service of a summons and complaint, but service by certified mail is not one of them. See Fed.R.Civ.P. 4(e), (h); N.Y. C.P.L.R. 308, 311. Hence, plaintiff has not complied with the technical requirements of service.

Be that as it may, plaintiffs failure is not grounds for dismissal. Rule 4(m) provides that upon a showing of "good cause" for a failure, to effect proper service, a court "must extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m). Moreover, "district courts have discretion to grant extensions even in the absence of good cause." Zapata v. City of New York, 502 F.3d 192, 196 (2d Cir.2007). Such discretion should be exercised after a "weighing of overlapping equitable considerations." Id. at 197.

In this case, the equitable considerations clearly favor granting plaintiff additional time to effect proper service. First, plaintiff is proceeding here pro se, and deserves special leniency in having her claims decided on the merits. Spencer v. Doe, 139 F.3d 107, 111-12 (2d Cir.1998). Second, and more importantly, defendants have not demonstrated any prejudice from plaintiffs failure to effect proper service. They had actual notice of the lawsuit in a timely manner, and have been active participants in the suit from the very beginning. In such a situation, the interests of justice would not be served by dismissal of a claim on purely technical grounds. Instead, the service with' respect to defendants HWA and Del Valle will be quashed, and plaintiff is directed to effect proper service within 30 days.² See Bender I, 2006 WL 988241, at *4 (rejecting argument made by other defendants in this action for dismissal on grounds of improper service, and giving plaintiff 30 days to cure defective service).³

II. FAILURE TO STATE A CLAIM

Defendants next move pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss all claims for failure to state a claim upon which relief may be granted. When deciding a 12(b)(6) motion, the Court must take as true the facts as alleged in plaintiff's complaint. Bolt Elec., 53 F.3d at 469. All reasonable inferences must be drawn in the plaintiff's favor. Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir.2004). However, "[g]eneral, conclusory allegations need not be credited ... when they are belied by more specific allegations of the complaint." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir.1995). A complaint may be dismissed where the complaint fails to plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). This requires that a plaintiff satisfy "a flexible`plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir.2007). "[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." Twombly, 127 S.Ct. at 1964-65 (internal quotation omitted).

A. Common Law Claims

To the extent that plaintiff sues HWA and Del Valle for intentional torts under the common law of New York State (such as assault, battery, false imprisonment, slander, and intentional infliction of emotional distress), such claims are timebarred. New York provides for a limitations period of one year for "assault, battery, false imprisonment, malicious prosecution, libel, [and] slander." N.Y. C.P.L.R. 215. The same limitation applies to claims for the intentional infliction of emotional distress. Goldner v. Sullivan, Gough, Skipworth, Summers and Smith, 105 A.D.2d 1149, 1151, 482 N.Y.S.2d 606 (4th Dep't.1984). Plaintiff commenced this action nearly three years after the events in question occurred. Hence, the limitations period had run with respect to such claims, and they are barred.

B. Constitutional Claims

Plaintiff brings claims against defendants HWA and Del Valle for violations of her rights arising under the U.S. Constitution. In particular, plaintiff alleges that HWA and Del Valle unlawfully used "physical force" against her (Am. Compl. ¶ 48), presumably raising an excessive force claim under the Fourth Amendment. The ability to bring such a claim was first recognized in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999 29 L.Ed.2d 619 (1971), in which the Supreme Court held that money damages were available against federal agents for violating a person's Fourth Amendment rights.⁴ A federal court awards such damages pursuant to its "general jurisdiction to decide all cases`arising under the Constitution, laws, or treaties of the United States.'" Correctional Services Corp. v. Malesko, 534 U.S. 61, 66, 122 S.Ct. 515, 151 L.Ed.2d 456 (2001), quoting 28 U.S.C. § 1331. Cases subsequent to Bivens have recognized a right of action against federal officials for violations of other constitutional rights as well. See Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Fifth Amendment); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980) (Eighth Amendment). The elements of a Bivens claim are: (1) "that a defendant acted under color of federal law" (2) "to deprive plaintiff of a constitutional right." Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir.1995).

1. Statute of Limitations

Unlike her state law claims, plaintiff's constitutional tort claims are not time-barred. The statute of limitations for constitutional torts is borrowed from the statute of limitations on "the most appropriate or most analogous" state law tort in the forum state. Wilson v. Garcia, 471 U.S. 261, 268, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) (construing § 1983 statute of limitations). While plaintiffs claims might appear analogous to intentional torts, in that her injuries flowed from the intentional acts of defendants, under established precedent the statute of limitations for all Bivens claims is borrowed from that governing personalinjury suits, which in New York is three Years. Chin v. Bowen, 833 F.2d 21, 24 (2d Cir.1987); see also Okure v. Owens, 816 F.2d 45 (2d Cir.1987) (...