# Castang v. Geimano

> District Court, E.D. New York · September 15, 2020

URL: https://www.frixlaw.com/law-library/cases/10304845

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 15, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10304845

## How later opinions describe it (automated extraction)

- rejecting claim that limitation period should be equitably tolled because of prison lockdowns and lack of access to law library
- stating “a garden variety claim of excusable neglect” is not enough to show equitable tolling
- holding that petitioner’s unfamiliarity with the legal system or lack of representation does not warrant equitable tolling
- stating equitable tolling cannot be premised on the plaintiff’s lack of education, pro se status, or ignorance of the right to bring a claim

## Opinion text

UNITED STATES DISTRICT COURT C/M
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------- X
RICARDO CASTANG, :
:
Plaintiff, :
: MEMORANDUM DECISION
- against- : AND ORDER
:
WILLIAM GEIMANO; JOHN DOE, : 19-cv-7178 (BMC) (LB)
individually and in their official capacities; :
and CITY OF NEW YORK, :
:
Defendants. :
:
----------------------------------------------------------- X

COGAN, District Judge.

Plaintiff pro se, in his amended complaint, has asserted claims under 42 U.S.C. § 1983
and state law against the City of New York and a John Doe police officer, and under Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against William
Geimano, a Special Agent of U.S. Customs and Immigration Enforcement. He alleges that the
City is liable for John Doe’s use of excessive force and that SA Geimano failed to intervene after
his arrest. Through their separate counsel, the City and SA Geimano have moved to dismiss
under Federal Rule of Civil Procedure 12(b)(6) on the ground that plaintiff’s claims are time-
barred, and, in any event, they fail to state a claim. Their arguments are correct and the motions
are granted, except that I decline to exercise supplemental jurisdiction over plaintiff’s state law
claims.
BACKGROUND
On September 21, 2016, plaintiff was arrested by a Joint Task Force comprised of
detectives from the Manhattan Special Narcotics Unit and Homeland Security. He was placed in
a holding cell at the 77th Police Precinct, located in Brooklyn, New York.1 The amended
complaint alleges that when John Doe began placing handcuffs on him, he punched plaintiff in
the head several times and hyperextended plaintiff’s arm and shoulder, from which plaintiff
sustained lasting and serious injuries, including continuing pain throughout his body, nosebleeds,
and headaches. SA Geimano observed the assault but took no action to stop it.2

Plaintiff later pled guilty in state court of the crimes for which he was originally
detained.3 Specifically, he was convicted for attempted criminal possession of a controlled
substance and of a scheme to defraud, thereby resulting in a sentence ranging from 8 ½ - 10
years’ in state prison.4
Furthermore, although he did not raise a false arrest or malicious prosecution claim under
§ 1983 in the amended complaint, while opposing the instant motion, plaintiff questioned the
evidence underlying his arrest and prosecution.

1 The amended complaint alleges that it was the 71st Precinct, but the City has learned that it was the 77th Precinct.
It also alleges that Special Agent Geimano was a New York City detective, but in fact he was employed by the
Department of Homeland Security.

2 The amended complaint also describes events involving plaintiff’s arrest and medical treatment. If he meant to
assert claims against anyone other than the defendants here for those incidents, he has not named them, not even as
John Doe defendants. In any event, such claims would be time-barred for the same reason his claims are barred
against the named defendants, as discussed below.

3 See https://www.dea.gov/press-releases/2017/10/05/ricardo-castang-sentenced-10-years-prison-narcotics-
trafficking-and-fake (last visited Sept. 14, 2020). I will take judicial notice of the government press release
announcing plaintiff’s arrest and subsequent guilty plea. See McLoughlin v. People’s United Bank, Inc., 586 F.
Supp. 2d 70, 73 (D. Conn. 2008). Plaintiff also acknowledges that he pled guilty in exchange for a more lenient
sentence.

4 See http://nysdoccslookup.doccs.ny.gov/GCA00P00/WIQ3/WINQ130 (last visited Sept. 14, 2020). A court may
also take judicial notice of a plaintiff’s underlying conviction and sentence when it is available publicly on the
Department of Correction’s website. See Sanchez v. RN Debbie, No. 18-cv-1505, 2018 WL 5314916, at *2 n.4 (D.
Conn. Oct. 26, 2018); Ruffins v. Dep't of Corr. Servs., 907 F. Supp. 2d 290, 293 n.4 (E.D.N.Y. 2012).
DISCUSSION

It is axiomatic that pro se complaints are held to less stringent standards than pleadings
drafted by attorneys, and the Court is required to read a plaintiff's pro se complaint liberally and
interpret it raising the strongest arguments it suggests. See Erickson v. Pardus, 551 U.S. 89
(2007). Nevertheless, where there are legal defenses that prohibit a plaintiff from proceeding
with his claims, the special indulgence afforded to pro se plaintiffs does not save the plaintiff’s
case. See Abbas v. Dixon, 480 F.3d 636, 640-41 (2d Cir. 2007).
Plaintiff’s excessive force claim against the John Doe police officer and the City of New
York are brought under 42 U.S.C. § 1983. The statute of limitations for this claim, borrowed
from the New York statute for personal injury claims, is three years. See Horn v. Politopoulos,
628 F. App'x 33 (2d Cir. 2015). A § 1983 claim accrues under federal law when the plaintiff
knows or has reason to know of the injury on which the claim is based. Pearl v. City of Long
Beach, 296 F.3d 76, 80 (2d Cir. 2002).

This means that the accrual date in an excessive force case usually is the date on which
the excessive force is used, and that certainly is the case here. Plaintiff alleges immediate and
serious injuries from the alleged excessive force. The claim therefore accrued on September 21,
2016. Plaintiff commenced this action on December 19, 2019, more than three years later.5 It is
therefore time-barred.6

5 The City was not named in plaintiff’s original complaint; it was added in his amended complaint. For purposes of
the City’s motion, I am assuming that plaintiff’s amended complaint relates back to the date of his original
complaint. That assumption is overly generous to plaintiff, see Cotto v. City of New York, 803 F. App’x 500 (2d
Cir. 2020), but it does not affect the outcome of the City’s motion.

6 Although plaintiff has not yet identified John Doe, the claim against him is dismissed as untimely for the same
reason. See Clement v. United Homes, LLC, 914 F. Supp. 2d 362, 375 (E.D.N.Y. 2012).
However, a statute of limitations can be equitably tolled if a plaintiff demonstrates
extraordinary circumstances that prevented him from timely filing his claim. To invoke the
doctrine of equitable tolling, a plaintiff must show (1) that he has been pursuing his rights
diligently, and (2) that some extraordinary circumstance stood in his way. See Zerilli-Edelglass

v. New York City Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003). This standard is very high.
See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990) (stating “a garden variety claim of
excusable neglect” is not enough to show equitable tolling). And the burden is on the plaintiff to
demonstrate the basis for equitable tolling. See Holland v. Florida, 560 U.S. 631, 655 (2010).
I cannot find that plaintiff has met this difficult standard. He has offered five reasons
why the statute of limitations should be equitably tolled: (1) prior to commencing this action, he
“contacted the court” on two occasions to request an extension to file this case; (2) there were
prison lockdowns due to a gang war during the summer prior to September 21, 2019 that
prevented him from filing; (3) he lacked legal knowledge due to his pro se status; (4) he was
unable to obtain a lawyer; and (5) he lacked consistent access to the law library.

None of these reasons is sufficient to invoke equitable tolling. Plaintiff has submitted a
copy of the letter he sent to the Court prior to September 21, 2019. There is only one, not two
(not that this is material). It is dated August 27, 2019. It did not request any extension to
commence this action. It requested copies of the § 1983 template (presumably form AO Pro se
14) and other forms; it also sought recommendations from the Clerk’s office for a “reputable law
firm with a stellar track record with successfully winning cases of assault and battery by the
police.” Rather than showing diligence on plaintiff’s part to meet the statute of limitations, the
letter shows that he was aware that he needed to commence his lawsuit, but failed to do so. It
also reveals that plaintiff intentionally delayed filing his action in hopes of securing the legal
services of an attorney with experience winning cases against the City. In any event, even if the
letter had requested an extension, a court cannot grant a party relief before an action is
commenced. See Fed. R. Civ. P. 3 (“A civil action is commenced by filing a complaint with the
court.”); Antonio v. United States, No. 14-cv-2072, 2017 WL 3769307, at *1 (S.D.N.Y. Aug. 30,

2017) (stating a court lacks jurisdiction to grant a plaintiff relief when there was no underlying,
operative complaint).
As to the “gang war” that caused lockdowns, plaintiff’s statement is insufficient to
support equitable tolling. He asserts that “all summer long, there was a ‘gang war’ going on in
the prison, up until the first 2 weeks of Sept. to the beginning of Oct. The jail was on ‘lock-
down’ for weeks, several times over the summer of 2019.” First, lockdowns are part of prison
life and are therefore not extraordinary. See United States v. Rudge, No.16-cr-311, 2019 WL
4867828, at *2 (S.D.N.Y. Sept. 18, 2019) (“the many challenges associated with life in prison do
not, on their own, establish grounds for equitable tolling.”); Amante v. Walker, 268 F. Supp. 2d
154, 158 (E.D.N.Y. 2003) (“transfers between prison facilities, solitary confinement, lockdowns,

restricted access to the law library, and an inability to secure court documents do not by
themselves qualify as extraordinary circumstances.”).
Second, there is no proof offered by plaintiff that his prison was on continuous lockdown
from the summer of 2019 through September 21, 2019 – indeed, his allegations of sporadic
lockdowns are to the contrary – and even if it was, plaintiff didn’t have to wait 2 ¾ years before
attempting to file a lawsuit for an alleged beating he suffered in 2016. At any time during the
statutory period, plaintiff could have filed a simple statement on a plain piece of paper labeled
“Complaint” that said, for example: “On September 21, 2016, I was arrested and then punched
multiple times for no reason by a John Doe New York City police officer at the 77th precinct
while Officer Geimano stood by and watched for which I suffered many injuries. I want
damages for the violation of my constitutional rights in the amount of $X.” He could have done
that in his letter to the Court instead of asking for forms or a referral for a civil rights attorney.
Filing a document that said no more than that might have been dismissed with leave to amend, or

it may have been allowed to proceed, but in either event, it would have been sufficient to prevent
expiration of the statute of limitations. Cf. Boykin v. United States, No. 18-cv-736, No. 10-cr-
391, 2018 WL 4855271, at *3 (S.D.N.Y. Sept. 21, 2018) (“the lockdown ended a full week
before Boykin’s petition had to be mailed, and so did not prevent him from mailing the
Petition.”).
Furthermore, neither lack of familiarity with the law nor a prisoner’s inability to hire a
lawyer is sufficient to warrant equitable tolling. See Bowens v. Cook, No. 20-cv-355, 2020 WL
4043048, at *4 (D. Conn. July 17, 2020) (“Courts within the Second Circuit consistently have
held that the lack of legal knowledge or legal assistance is not an extraordinary circumstance
warranting equitable tolling.”) (collecting cases and quoting Francis v. Comm'r of Correction,

No. 18-cv-847, 2019 WL 8223557, at *5 (D. Conn. March 15, 2019) (citation and internal
quotation marks omitted)). Plaintiff’s unfamiliarity with the law was no different than the vast
majority of other prisoners. His self-serving statement that he had difficulty understanding the
legal system does not require a different result. See, e.g., Watson v. United States, 865 F.3d 123,
133 (2d Cir. 2017) (stating equitable tolling cannot be premised on the plaintiff’s lack of
education, pro se status, or ignorance of the right to bring a claim); Turner v. Johnson, 177 F.3d
390, 392 (5th Cir. 1999) (holding that petitioner’s unfamiliarity with the legal system or lack of
representation does not warrant equitable tolling).
Lastly, plaintiff’s intermittent access to the law library due to periodic lockdowns does
not warrant the application of equitable tolling. Plaintiff states that he had to submit a formal
request 5 days in advance to visit the law library and contends that “anything can happen
between the time you put in the request and the time you get called.” This argument fails. See

McDonald v. Castro, 66 F. App'x 98, 100 (9th Cir. 2003) (rejecting claim that limitation period
should be equitably tolled because of prison lockdowns and lack of access to law library);
Matthews v. Artus, No. 07-cv-4157, 2008 WL 111191, at *2 (E.D.N.Y. Jan. 9, 2008) (“[T]he
facility’s lockdown and petitioner’s lack of access to the law library during the investigation and
renovation period does not justify equitable tolling.”). In any event, plaintiff’s situation was not
particularly complex and he fails to advance any real argument why visiting the law library was a
necessary prerequisite before he could file his complaint. In fact, plaintiff acknowledges that he
only became aware of a § 1983 claim or notice of claim after speaking with other inmates – not
through research conducted at the law library.
At bottom, plaintiff’s assertions show that any substantial delay in commencing this

lawsuit had little to do with “lockdowns” or access to the law library. Rather, plaintiff believed
that he “could not adequately nor effectively represent myself” against defendants, but “relented
in filing/doing the § 1983 complaint on my own” because he could not retain an attorney:
“Plaintiff began to work on filing the complaint after he had exhausted all other avenues, and
himself, writing to legal representatives; over and over, back and forth, to take his case to no
avail.” Specifically, he squandered 5-7 months corresponding back and forth with one attorney,
as she ultimately declined to take his case. The only thing that stood in plaintiff’s way from
timely filing this action was his desire to obtain legal representation – not any extraordinary
circumstance.7
For the same reason, plaintiff’s claim against SA Geimano is also untimely. In the
absence of a claim under the Federal Tort Claims Act, 28 U.S.C. § 2675 (which plaintiff did not

file and is too late to file now), the only possible claim against a federal law enforcement officer
for failure to intervene to prevent the use of excessive force is under Bivens. That claim is also
subject to a three year statute of limitations borrowed from New York law. See Rudaj v.
Treanor, 522 F. App'x 76, 77 (2d Cir. 2013). The claim accrues when the prisoner knows or has
reason to know of it. Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015). Thus, plaintiff is
time-barred from proceeding against SA Geimano.
In addition, both the claim against the City and SA Geimano fail on the merits. The City
can only be liable under 42 U.S.C. § 1983 if John Doe’s alleged use of excessive force occurred
“pursuant to a governmental policy, custom or usage.” Monell v. Dep't of Soc. Servs. of City of
New York, 436 U.S. 658, 690-91 (1978). The amended complaint contains no allegations to

support such a claim. As to SA Geimano, the Supreme Court has never extended Bivens to a
claim for failure to intervene, and has counseled against lower courts creating new claims for
relief under Bivens in the absence of congressional legislation. See Ziglar v. Abbasi, 137 S. Ct.
1843 (2017); see also Martinez v. D’Agata, No. 16-cv-44, 2019 WL 6895436, at *7 (S.D.N.Y.
Dec. 18, 2019) (declining to recognize a Bivens remedy for failure to intervene against federal
defendants).

7 It should be noted that when a prisoner obtains legal counsel to represent him in a § 1983 action, it is rarely the
case that he pays a retainer or fee. Under 42 U.S.C. § 1988, if a plaintiff prevails in an action, the defendant must
pay an additional amount as a reasonable attorneys’ fee. And the fee may well exceed the amount of damages that
the plaintiff recovers. This means that if any attorney thinks that a case has merit, even enough merit to warrant a
settlement, that attorney is incentivized to take on the representation. Conversely, if a would-be plaintiff cannot find
any attorney willing to take his case, it may be some indication that the case is problematic.
As to the new allegations contained in plaintiff’s opposition questioning his underlying
arrest and prosecution, to the extent plaintiff suggests a § 1983 false arrest or malicious
prosecution claim, Heck v. Humphrey, 512 U.S. 477, 483-87 (1994), forecloses this possibility.
Even if I were to grant plaintiff leave to amend the complaint, his guilty plea establishes

probable cause and precludes a claim for false arrest and malicious prosecution under § 1983.
See Magnotta v. Putnam Cty. Sheriff, No. 13-cv-2752, 2014 WL 705281, at *5 (S.D.N.Y. Feb.
24, 2014); Houston v. City of New York, No. 06-cv-2094, 2013 WL 1310554, at *4 (E.D.N.Y.
March 28, 2013).
The last remaining issue is plaintiff’s state law claim for assault or state constitutional
violations against the City and John Doe.8 The City has three arguments for dismissal. First, the
City asserts that it should be dismissed because the complaint does not allege that plaintiff filed a
notice of claim as required by N.Y. General Municipal Law §§ 50-e and 50-i. Whatever the
pleading requirements are in state court, there is nothing in Federal Rule of Civil Procedure 8
that requires plaintiff to plead such notice. It a plaintiff is required to so plead in state court, it is

clearly a state procedural requirement. I therefore reject the City’s argument.
Second, the City asserts that, in fact, plaintiff, although asserting that he did in fact file a
notice of claim, has failed to prove it. However, the City has failed to prove that he did not.
Neither party has submitted evidence of whether a notice of claim was filed, nor have they
briefed whether that substantive issue is properly before me on a Rule 12(b)(6) motion. I decline
to resolve that factual dispute.
Finally, the City also argues that any state law claims are time-barred because plaintiff
did not bring them against the City within one-year and ninety-days of the incident on September

8 As to John Doe, see fn. 6 supra.
21, 2016, as required by N.Y. Gen. Mun. Law § 50-i(a). However, neither side has addressed
whether there is a state law doctrine analogous to the federal doctrine of equitable tolling, and if
so, whether the state doctrine is any different than federal equitable tolling. I see no reason why
the state courts could not be, if they so chose, more lenient towards pro se plaintiffs in tolling

statutes of limitations than the federal courts.
There is no reason for me to determine these issues. Pursuant to 28 U.S.C. § 1367(c)(3),
I have discretion to decline to exercise supplemental jurisdiction over a claim if “the district
court has dismissed all claims over which it has original jurisdiction.” Since plaintiff’s federal
claims have been dismissed, I decline to maintain jurisdiction over the remaining city law claims.
See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in
which all federal-law claims are eliminated before trial, the balance of factors to be considered
under the pendent [now “supplemental”] jurisdiction doctrine – judicial economy, convenience,
fairness, and comity – will point toward declining to exercise jurisdiction over the remaining
state-law claims.”); Brzak v. United Nations, 597 F.3d 107, 114 (2d Cir. 2010). Plaintiff’s state

law claims against the City and John Doe are therefore dismissed without prejudice to
recommencement in state court.
CONCLUSION
Defendants’ motions to dismiss [37 and 49] are granted in part and denied in part.
Plaintiff’s federal claims against defendants are dismissed with prejudice, and his state law
claims against the City and John Doe are dismissed without prejudice. The Clerk shall enter
judgment accordingly. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
from this order would not be taken in good faith and therefore in forma pauperis status is denied
for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.

US.D.J.
Dated: Brooklyn, New York
September 14, 2020

11

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10304845. Public record. Not legal advice.