Whetsel v. Montas

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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WADE WHETSEL,

Plaintiff,

MEMORANDUM AND ORDER

-against- 19-CV-2687(JS)(AYS)

RONALD J. MONTAS, THE CITY OF

NEW YORK, ERIC GONZALES, and BRIAN

SWINEY,

Defendants.

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APPEARANCES

For Plaintiff: Wade Whetsel, pro se

19-R-1282

Greene Correctional Facility

P.O. Box 975

Coxsackie, New York 12051

For Defendants Andrew B. Spears, Esq.

other than Brian New York City Law Department

Swiney: Special Federal Litigation Division

100 Church Street

New York, New York 10007

For Brian Swiney: No appearances.

SEYBERT, District Judge:

Before the Court is the timely response from

incarcerated pro se plaintiff Wade Whetsel (“Plaintiff”) to the

Court’s Order to Show Cause (Order to Show Cause (“OTSC”), ECF No.

30). (Pl. Resp., ECF No. 32.) Because Plaintiff’s claims against

Brian Swiney (“Swiney”), which are brought pursuant to 42 U.S.C.

§ 1983 (“Section 1983”), appear to be outside the applicable

statute of limitations, Plaintiff was ordered to show cause why

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his claims against Swiney arising from the events alleged to have

occurred during July 2016 as alleged in the Amended Complaint are

not barred by the applicable statute of limitations. (See OTSC

at 4.)

Upon review of Plaintiff’s response to the Order to Show

Cause, for the reasons set forth below, the Court finds that

Plaintiff’s Section 1983 claims against Swiney are barred by the

statute of limitations. Further, even if timely asserted,

Plaintiff has not alleged a plausible Section 1983 claim against

Swiney. Accordingly, Plaintiff’s Section 1983 claims against

Swiney are DISMISSED pursuant to the in forma pauperis statute and

the Prisoner Litigation Reform Act, 28 U.S.C. §§ 1915, 1915A.

BACKGROUND

On February 28, 2020, Plaintiff filed an Amended

Complaint that, for the first time, named Swiney as a defendant.

(Am. Compl., ECF No. 17.) However, because Plaintiff did not

include any contact information for Swiney, the Clerk of Court

could not issue a Summons to Swiney in anticipation of service by

the United States Marshal Service (“USMS”). Accordingly, by

Electronic Order dated October 19, 2020,1 the Court granted

1 Notably, the delay in processing Plaintiff’s Summonses for

service resulted from the national emergency caused by the COVID-

19 pandemic. Pursuant to Administrative Orders 2020-19-1, 2020-

19, and 2020-12, USMS service was suspended during this time

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Plaintiff thirty days to either provide a service address for

Swiney or indicate in writing whether he required assistance in

obtaining such information. (See Oct. 19, 2020 Elec. Order.) By

letter dated November 1, 2020 and received by the Court on November

17, 2020, Plaintiff requested assistance. (Nov. 17, 2020 Ltr.,

ECF No. 22.)

Upon review of the Amended Complaint in accordance with

in forma pauperis statute and the Prisoner Litigation Reform Act,

28 U.S.C. §§ 1915, 1915A, it appeared that Plaintiff’s Section

claims against Swiney arose from conduct alleged to have occurred

in July 2016 and thus are outside the applicable statute of

limitations. (See generally Am. Compl., ECF No. 17.)

Accordingly, the Court ordered Plaintiff to show cause why such

claims are not barred by the statute of limitations. (See OTSC

at 4.)

On March 15, 2021, Plaintiff timely responded to the

Order to Show Cause. (See Pl. Resp.) Plaintiff acknowledges that

he added Swiney as a defendant on February 28, 2020 upon filing

the Amended Complaint. (Id. ¶ 1.) Plaintiff asks that the Court

“consider [his] pro se status” and explains that he “was unsure as

to whether he was required to name Mr. Swiney as an individual

period.

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defendant.” (Id. ¶ 6.) According to Plaintiff, while Swiney’s

“allegations [against Plaintiff] originally prompted the

prosecution brought against Plaintiff,” he “now believes that

naming the City of New York as a Defendant was adequate.” (Id.)

Plaintiff also asks that “the court relate his amended complaint

back to the original complaint” because “the amendment contains no

new information and is closely related to the substance of the

original complaint.” (Id. ¶ 7.) Further, Plaintiff requests that

the Court provide “assistance in providing contact information for

defendant Swiney should the court see fit.” (Id. ¶ 8.)

Plaintiff included exhibits in his response that provide

further background on his efforts to initiate this action. (See

id. at 3-1l.) Plaintiff explains that he was in federal custody

at the time that the state case that forms the basis for the

present action was dismissed on January 27, 2017. (Id. at 3.)

While in custody during the period from January 27, 2017 through

June 9, 2019, Plaintiff claims that he was transferred between

United States Penitentiary Canaan and Riker’s Island Correctional

Facility and “was boxed for 4 months with no ability to have any

property which included my complaint.” (Id. at 4.) Plaintiff

asserts that after he was transferred to Greene Correctional

Facility in May 2019 he has “been able to correspond better with

the Courts.” (Id.) Plaintiff also avers that his father’s death

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on December 11, 2019 “took a toll” on him, that his mother died on

November 6, 2020, and that his son was also shot. (Id.)2

According to Plaintiff, the national emergency caused by the COVID-

19 pandemic “affect[ed] my facility” and “there was no library

access.” (Id.) Finally, Plaintiff states that he is “not certain

if this court actually needs Brian Swiney.” (Id.)

DISCUSSION

As the Court set forth in the Order to Show Cause, “Under

New York law, § 1983 claims are governed by a three-year statute

of limitations.” (See OTSC at 2 (quoting Wheeler v. Slanovec, 16-

CV-9065, 2019 WL 2994193, at *5 (S.D.N.Y. July 9, 2019) (citing

Patterson v. Cnty. of Oneida, 375 F.3d 206, 225 (2d Cir. 2004))).)

Here, Plaintiff’s Section 1983 claims against Swiney arise from

conduct alleged to have occurred on July 27, 2016. (See Am. Compl.

at 1.) More specifically, Plaintiff alleges that he was arrested

on that date following a complaint by Swiney to law enforcement.

(Id. at 2.) Plaintiff claims that Swiney falsely reported to

police that Plaintiff had robbed him and, as a result of that

report, Plaintiff was also charged with violation of supervised

release and was taken into federal custody. (Id. at 2-3.)

2 The Court notes that Plaintiff has included copies of his

parents’ death certificates as exhibits. Because they contain the

decedents’ social security numbers, the Clerk of the Court shall

restrict access to these documents.

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Plaintiff’s Amended Complaint, filed on February 28, 2020, first

named Swiney as a defendant. (See id.) However, Plaintiff’s

original Complaint, filed on April 30, 2019, identified Swiney in

the “Statement of the Case” section and included allegations about

his allegedly false report to police. (See Compl., ECF No. 1 at

5, ¶ 19.)

As is readily apparent, Plaintiff’s Section 1983 claims

against Swiney are outside the three-year statute of limitations.

Plaintiff first named Swiney as a defendant in the Amended

Complaint filed on February 28, 2020, almost eight months after

the statutory period had run. (Compare Am. Compl., with Compl.)

Nevertheless, a statute of limitations may be extended, or

“tolled,” under the doctrine of equitable tolling. The equitable

tolling doctrine generally applies “[1] where the plaintiff

actively pursued judicial remedies but filed a defective pleading

during the specified time period; [2] where plaintiff was unaware

of his or her cause of action due to misleading conduct of the

defendant; or [3] where a plaintiff’s medical condition or mental

impairment prevented her from proceeding in a timely fashion.”

Zerilli-Edelglass v. N.Y. Transit Auth., 333 F.3d 74, 80 (2d Cir.

2003) (internal citations omitted). However, the doctrine should

be invoked “only in ‘rare and exceptional circumstances’ where .

. . ‘extraordinary circumstances’ prevented a party from timely

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performing a required act, and . . . the party acted with

reasonable diligence throughout the period he sought to toll.”

Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (internal

quotation marks and alterations omitted). Further, to determine

whether equitable tolling applies, a court must consider whether

the person seeking application of the doctrine has (1) “acted with

reasonable diligence during the time period [he] seeks to have

tolled,” and (2) “proved that the circumstances are so

extraordinary that the doctrine should apply.” Zerilli-Edelglass,

333 F.3d at 80-81 (citations and internal quotation marks omitted).

Plaintiff bears the burden to establish that equitable tolling is

warranted. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000) (“The

burden of demonstrating the appropriateness of equitable tolling

. . . lies with the plaintiff.” (citation omitted)).

Upon careful review and consideration of Plaintiff’s

response to the Court’s OTSC, it is clear that Plaintiff has not

alleged a basis to equitably toll the statute of limitations.

While the Court is sympathetic to the circumstances Plaintiff

describes, including the loss of his parents and the difficulties

presented at the facility as a result of the protocols implemented

during the COVID-19 pandemic, none of those circumstances have any

relevance as to why he did not include Swiney as a defendant before

the statutory period expired. Indeed, the events Plaintiff

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recounts in support of his request for equitable tolling all

occurred well after the statutory period expired in July 2019.

Moreover, Plaintiff knew of Swiney -- and described his role in

the alleged events -- as of at least April 30, 2019 when the

original Complaint was filed. Thus, there is no basis to equitably

toll the statute of limitations.

Nor does the “relation back” doctrine save Plaintiff’s

claims against Swiney. Under Federal Rule of Civil Procedure

(“Rule”) 15(c)(1)(C), an amended complaint is untimely unless

Plaintiff establishes that it “relates back” to an earlier pleading

filed before the statute of limitations expired. See FED. R. CIV.

P. 15(c); Liverpool v. Davis, 442 F. Supp. 3d 714, 724 (S.D.N.Y.

2020) (citing S.A.R.L. Galerie Enrico Navarra v. Marlborough

Gallery, Inc., No. 10-CV-7547, 2013 WL 1234937, at *3 (S.D.N.Y.

Mar. 26, 2013) (stating that it is the plaintiff’s burden to

establish that an amended claim relates back to the date of the

original complaint)).

Rule 15(c)(1)(C) “applies only where an amendment

changes the party or the naming of the party against whom a claim

is asserted -- not where, as here, Plaintiff seeks to add new

parties.” Jhagroo v. Brown, No. 16-CV-03426, 2020 WL 3472424, at

*2 (S.D.N.Y. June 25, 2020) (citation and quotation marks omitted);

see also Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d

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Cir. 1995) (“Rule 15(c) explicitly allows the relation back of an

amendment due to a ‘mistake’ concerning the identity of the parties

(under certain circumstances), but the failure to identify

individual defendants when the plaintiff knows that such

defendants must be named cannot be characterized as a mistake.”),

modified, 74 F.3d 1366, 1367 (2d Cir. 1996) (per curiam); Hogan v.

Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (“This Circuit has

interpreted [Rule 15(c)(1)(C)] to preclude relation back for

amended complaints that add new defendants . . . .”); Briggs v.

County of Monroe, 215 F. Supp. 3d 213, 217 (W.D.N.Y. 2016)

(citations omitted) (“By its express language, the relation-back

language of Rule 15(c)(1)(C) applies to an amendment that ‘changes’

a named party due to a mistake concerning the proper party’s

identity, not to a situation where an entirely new party is being

added.”); Pikos v. Liberty Maint.,Inc., No. 09-CV-4031, 2015 WL

6830670, at *3 (E.D.N.Y. Nov. 6, 2015) (“Courts in this Circuit

have held relation back is only permitted where plaintiff named

the wrong party in the original complaint, and not where plaintiff

named one but not all of the right defendants.” (collecting

cases)).

Here, as is readily apparent, Plaintiff chose not to

name Swiney as a defendant within the statutory period. Indeed,

Plaintiff included Swiney in the body of the original Complaint

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that named Detective J. Montas as the sole defendant. (See Compl.

¶¶ 4, 20.) Given that Plaintiff clearly was aware that Swiney was

the alleged police informant as of at least April 30, 2019,

Plaintiff’s claims against him asserted in the Amended Complaint

do not relate back and are thus untimely.3

Moreover, even if the Court were to find that Plaintiff’s

Section 1983 claims against Swiney were timely asserted, they fail

for the additional reason that Swiney is not a state actor.

Generally, a private party such as Swiney cannot be held liable

for violating Section 1983. See Filarsky v. Delia, 566 U.S. 377,

383 (2012) (“Section 1983 provides a cause of action against any

person who deprives an individual of federally guaranteed rights

‘under color’ of state law.”); Am. Mfrs. Mut. Ins. Co. v. Sullivan,

526 U.S. 40, 49–50 (1999) (“[T]he under-color-of-state-law element

of § 1983 excludes from its reach merely private conduct, no matter

3 Nor can Plaintiff’s claim against Swiney survive under Federal

Rule 15(c)(1)(A), which allows relation back where “the law that

provides the applicable statute of limitations allows relation

back.” FED. R. CIV. P. 15(c)(1)(A). “Section 203 [of the New York

Civil Practice Law and Rules, which governs relation back in the

context of amended pleadings in New York] has been interpreted to

embody essentially the same limitation as Federal Rule 15(c)(1)(C)

. . . namely, requiring the plaintiff to show that the new party

knew or should have known that, but for an excusable mistake by

plaintiff as to the identity of the proper parties, the action

would have been brought against him as well.” Neal v. Wilson, 239

F. Supp. 3d 755, 761 (S.D.N.Y. 2017) (internal quotation marks and

citations omitted).

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how discriminatory or wrongful.” (citations and quotation marks

omitted)). Here, the fact that Swiney filed a complaint with law

enforcement that led to Plaintiff’s arrest or prosecution is

insufficient to establish state action. See Alvarez v. Peters,

No. 19-CV-6789, 2020 WL 1808901, at *4 (E.D.N.Y. Apr. 9, 2020)

(citing Adebiyi v. City of New York, No. 13-CV-0480, 2014 WL

4922888, at *4 (E.D.N.Y. Sept. 30, 2014) (“Case law in this Circuit

is well-established that the provision of information to a police

officer -- even if that information is false or results in the

officer taking affirmative action -- is insufficient to constitute

‘joint action’ with state actors for purposes of § 1983.”)); Bravo

v. Bexar County, No. 12–CV–4009, 2014 WL 1155302, at *6 (E.D.N.Y.

Mar. 21, 2014) (citing D’Agostino v. N.Y. State Liquor Auth., 913

F. Supp. 757, 770 (W.D.N.Y. 1996) (“It is uniformly recognized .

. . that a private party does not conspire or jointly act with a

state actor simply by complaining to the police.”)); Vazquez v.

Combs, 04–CV–4189, 2004 WL 2404224, at *4 (S.D.N.Y. Oct. 22, 2004)

(“[M]erely filing a complaint with the police, reporting a crime,

requesting criminal investigation of a person, or seeking a

restraining order, even if the complaint or report is deliberately

false, does not give rise to a claim against the complainant for

a civil rights violation.”)).

Given that Plaintiff alleges only that Swiney falsely

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accused Plaintiff of a crime that lead to Plaintiff’s arrest and

prosecution, his Section 1983 claim against Swiney is not plausible

even if it had been timely filed. Thus, it is DISMISSED pursuant

to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A.

CONCLUSION

For the reasons set forth above, the Court finds that

Plaintiff’s Section 1983 claims against Swiney are barred by the

applicable statute of limitations and, even if they were timely

asserted, they fail to state a plausible claim for relief.

Accordingly Plaintiff’s Section 1983 claims against Swiney are

DISMISSED pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i)-(ii), 1915A.

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 any appeal. See Coppedge v. United States, 369 U.S. 438, 444-

45 (1962).

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The Clerk of the Court is directed to: (1) enter JUDGMENT

in accordance with this Order, and (2) mail a copy of this

Memorandum and Order to Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: April 19 , 2021

Central Islip, New York

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