Williams v. Allen

• Decision Date: 26 August 1985
• Docket Number: No. 81 Civ. 1886.,81 Civ. 1886.
• Parties: Timothy WILLIAMS, Plaintiff, v. Thomas ALLEN and Joseph Soviero, Defendants.
• Court: U.S. District Court — Eastern District of New York

616 F. Supp. 653

Timothy WILLIAMS, Plaintiff, v. Thomas ALLEN and Joseph Soviero, Defendants.

No. 81 Civ. 1886.

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

August 26, 1985.

Harold F. Damm, Mineola, N.Y., for plaintiff.

Carnell T. Foskey, County Atty. of Nassau County, Mineola, N.Y., for defendant Allen.

Joseph F. Soviero, Garden City, N.Y., pro se.

MEMORANDUM AND ORDER

GLASSER, District Judge:

This is an action brought pursuant to 42 U.S.C. § 1983 in which plaintiff, a prisoner, alleges violations of his civil rights by defendant Thomas Allen, a member of the Nassau County Police Department, and defendant Joseph Soviero, an attorney, in connection with plaintiff's prosecution for murder in the Supreme Court, Nassau County, in 1980-81.¹ Specifically, plaintiff alleges in his amended complaint that defendant Allen used excessive force to coerce him into confessing to the murder charge, and that defendant Soviero, who was appointed by the Court to represent plaintiff, failed to do so in a competent manner. Plaintiff seeks an award of damages as well as attorneys' fees, costs and interest.

Defendant Allen has moved to dismiss the complaint against him for failure to commence this action within the applicable limitations period, failure to file a notice of claim and failure to state a claim. For the reasons set forth below, defendant Allen's motion is denied in its entirety.

Background

The relevant facts with respect to defendant Allen are as follows. On April 20, 1980 plaintiff was arrested and allegedly beaten by defendant Allen. See Amended Complaint ¶¶ 8-25. Plaintiff was subsequently convicted and sentenced, and filed this action pro se on June 8, 1981, some fourteen months after his arrest. The plaintiff's original complaint was sixteen pages long and detailed his claims in a narrative manner. Leave to prosecute this action in forma pauperis was granted, along with a direction that process be issued to the United States Marshal for service upon the defendants, on September 2, 1981 by Judge Mishler. The Marshal attempted service on Allen by serving the Office of the Nassau County District Attorney on September 21, 1981.

On October 9, 1981, the Nassau County Attorney moved to dismiss on behalf of defendant Allen (and another former defendant) for lack of personal jurisdiction or failure to state a claim, or, in the alternative, for a more definite statement. Shortly thereafter, plaintiff requested appointment of counsel. The Clerk of the Court was directed to appoint counsel on December 6, 1982,² and present counsel for plaintiff accepted appointment and filed a notice of appearance on May 16, 1983.

Neither counsel for plaintiff nor counsel for defendants prodded this action along on the court calendar, and the outstanding motion to dismiss filed in October 1981 was not heard until October 12, 1984. Counsel for Allen did not appear for oral argument of that motion; however, Allen's motion to dismiss for improper service was granted, with leave to plaintiff to serve Allen properly within thirty days. Following some confusion as to the date by which plaintiff was to re-serve Allen,³ plaintiff was granted an additional twenty days during which he could personally serve Allen with a summons and an amended complaint at the conclusion of a hearing conducted on April 12, 1985. Allen was personally served with process within the twenty-day period, on May 1, 1985, at 1490 Franklin Avenue in Garden City, the same address where Allen was improperly served in September 1981.

Discussion

1. Statute of Limitations

The applicable statute of limitations in an action brought pursuant to 42 U.S.C. § 1983 is the state limitations period for personal injury actions. Wilson v. Garcia, ___ U.S. ___, 105 S.Ct. 1938, 1947-48, 85 L.Ed.2d 254 (1985). In New York, that period is three years. C.P.L.R. § 214. Rodrigues v. Village of Larchmont, 608 F.Supp. 467, 477 (S.D.N.Y.1985). A federal action is commenced upon the filing of the complaint, Fed.R.Civ.P. 3, as compared to an action brought in a New York state court, where the limitations period is tolled only after the defendant is served with process or otherwise notified of the filing of the summons and complaint. See C.P. L.R. § 203. Because this action was commenced only fourteen months after April 20, 1980, when the claim arose, it was timely filed.

Although this action was commenced in a timely manner, it is true that defendant Allen was served some 3½ years after the filing of the complaint. Pursuant to Rule 4(j) of the Federal Rules of Civil Procedure,⁴ the claim against Allen could be dismissed on that basis alone. That rule, however, became effective on February 26, 1983. Prior to that time there was no fixed period during which the summons had to be served following the filing of a complaint; rather, a flexible due diligence standard was applied. Montalbano v. Easco Hand Tools, Inc., 766 F.2d 737, 740 n. 6 (2d Cir.1985), (citing Siegel, Practice Commentaries U.S.C.A. Rule 4, at 54 (West Supp. 1985)).

Under either the Rule 4(j) or flexible due diligence standard, I decline to dismiss the complaint against Allen in this action. When service was first attempted upon Allen, the incarcerated pro se plaintiff depended solely upon the United States Marshal to effect service. Under such circumstances, dismissal is inappropriate. Korkala v. National Security Agency, 107 F.R.D. 229, 230 (E.D.N.Y.1985) (Glasser, J.) (where failure to serve is solely the fault of the Marshal, plaintiff has good cause for failure to serve defendants in a timely manner); Davis v. Krauss, 478 F.Supp. 823, 826 (E.D.N.Y.1979) (where Marshal served defendants three months after statute of limitations had run, complaint would not be dismissed) (pre-Rule 4(j)). In addition, the time to comply with Rule 4(j) may be extended pursuant to Rule 6(b). 4 C. Wright, A. Miller & M. Kane, Federal Practice & Procedure § 1138 (Supp.1985); see also Arroyo v. Wheat, 102 F.R.D. 516 (D.Nev. 1984). In effect, by granting plaintiff additional time to re-serve Allen on October 12, 1984 and then on April 12, 1985, I granted plaintiff an extension of the time permitted under Rule 4(j) pursuant to Rule 6(b). Because the summons and amended complaint were properly served upon Allen within 20 days of April 12, 1985, I decline to dismiss the amended complaint as untimely served.

2. Notice of Claim

Plaintiff's failure to file a timely notice of claim with respect to his claims against defendant Allen, pursuant to N.Y.Gen. Mun.Law § 50(e),⁵ presents a more difficult problem. While Allen contends that this error by the then pro se plaintiff bars the claim against him, plaintiff urges that a notice of claim requirement is inapplicable in federal § 1983 actions brought in this Circuit. Certainly the plaintiff's position was correct until at least 1983. See, e.g., Brandon v. Board of Education, 635 F.2d 971, 973-74 n. 2 (2d Cir.1980), cert. denied, 454 U.S. 1123, 102 S.Ct. 970, 71 L.Ed.2d 109 (1981); Davis v. Krauss, supra, 478 F.Supp. at 825. "If applied, such a notice of claim provision would substantially interfere with the exercise of an important federal right." Id. (citations omitted). In 1983, however, the New York Court of Appeals decided the case of Mills v. County of Monroe, 59 N.Y.2d 307, 451 N.E.2d 456, 464 N.Y.S.2d 709, cert. denied, 464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983). Acknowledging that the federal district courts sitting in New York have not applied state notice of claim statutes to actions brought under 42 U.S.C. § 1981 or § 1983, 451 N.E.2d at 457, 464 N.Y.S.2d at 710, the Mills court held that a plaintiff's failure to file a timely notice of claim in a § 1981 suit was fatal to the maintenance of her action against the municipality. The court reasoned:

The flexibility with which the timeliness requirement of the notice statute may be applied and the existence of a judicially created exception to the notice requirement indicate that the statute causes no undue inhibition to the bringing of civil rights actions. In the area of civil rights, this court has recognized an important exception to the notice requirement. In Union Free School Dist. No. 6 of Towns of Islip & Smithtown v. New York State Human Rights Appeal Bd., 35 N.Y.2d 371, 380, 362 N.Y.S.2d 139, 320 N.E.2d 859, it held that notice of claim requirements do not apply to actions brought "to vindicate a public interest." All actions brought to enforce civil rights can be said to be in the public interest.... But, actions that are brought to protect an important right, which seek relief for a similarly situated class of the public, and whose resolution would directly affect the rights of that class or group are deserving of special treatment. The interests in their resolution on the merits override the State's interest in receiving timely notice before commencement of an action....

Even if a civil rights action seeks to enforce only the private or personal rights of the plaintiff ... the statute itself permits relief from the notice requirement through an application to the court to serve late notice (see General Municipal Law, § 50-e, subd. 5). Although the notice requirement relevant to this action provides generally that a plaintiff must file notice within 90 days after the claim arises (see County Law § 52; General Municipal Law, § 50-e, subd. 1, par. a), "upon application, the court, in its discretion, may extend the time to serve a notice of claim," so long as the extension does not exceed the time limit for commencement of the action (General Municipal Law, § 50-e, subd. 5). The court, in deciding whether to grant leave, will consider various factors, including when the governmental subdivision had acquired knowledge of the relevant facts and whether the delay had caused the defendant substantial prejudice in maintaining its defense (id.). For these reasons, application of the relevant notice provision to actions brought

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