Hardy-Graham v. Southampton Police Department

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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ANDREW HARDY-GRAHAM,

MEMORANDUM & ORDER

Plaintiff, 20-CV-0981(JS)(SIL)

-against-

OFFICER KEITH LAWSTON, OFFICER JOHN

DOE 1, JOHN DOE 2,

Defendants.

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APPEARANCES

For Plaintiff: Andrew Hardy-Graham, Pro Se

836 Davis Avenue

Uniondale, New York 11553

For Defendants: David H. Arntsen, Esq.

Volz & Vigliotta, PLLC

280 Smithtown Boulevard

Nesconset, New York 11767

SEYBERT, District Judge:

Pending before the Court is the unopposed motion to

dismiss (hereafter, “Dismissal Motion”) of Defendants Officer

Keith Lawston (“Officer Lawston”), and John Does 1 and 2 (the “John

Doe Defendants” and, collectively, “Defendants”)1 seeking to

1 Officer Lawston’s counsel, David H. Arntsen, notes that although

the John Doe Defendants have not been served, they have appeared

in this action through his office “‘solely for the purpose of

receiving ECF alerts from the Eastern District Court. . . . .’”

(Support Memo, ECF No. 25-7, at 1 n.1 (quoting Arntsen’s Notice of

Appearance, ECF No. 15).) Arguing that any claims against the

John Doe Defendants “would be subject to dismissal for the same

reasons that the claims insofar as they are asserted against

[Officer] Lawston should be dismissed,” Counsel Arntsen requests

that if the Dismissal Motion is granted that the dismissal be of

the case in its entirety, i.e., that the claims against the John

Doe Defendants also be dismissed. (see id.; see also Arntsen

dismiss the Second Amended Complaint (“SAC”) (see ECF No. 9) filed

by pro se plaintiff Andrew Hardy-Graham (“Plaintiff”). (See

Dismissal Motion, ECF No. 25.) For the reasons set forth below,

Defendants’ Dismissal Motion, brought pursuant to Federal Rule of

Civil Procedure 12(b)(6), is GRANTED.

BACKGROUND

I. Procedural History

On February 21, 2020, Plaintiff filed a pro se Complaint

against the Southampton Town Police Department (“the Police

Department”), the Southampton Town Court, Officer Lawston, and

three unidentified officers (i.e., the John Doe Defendants and a

“Jane Does”), together with an application to proceed in forma

pauperis (“IFP”). (Compl., ECF No. 1; IFP App., ECF No. 2.) By

Order dated April 10, 2020, Plaintiff’s IFP application was denied

without prejudice and with leave to renew using the court’s long-

form IFP application. (See ECF No. 5.) On April 27, 2020,

Plaintiff filed a renewed, long-form IFP application (hereafter,

the “Renewed IFP Application”), together with an amended complaint

against Officer Lawston, Southampton Justice Court (“SJ Court”),

the Police Department, SJ Court Justice Barbara Wilson (“Justice

Decl., ECF No. 25-1, ¶ 1 (“I submit this declaration in support of

defendants’ motion to dismiss the plaintiff’s Second Amended

Complaint in its entirety as against defendants LAWSTON, DOE and

DOE 2.”).)

Wilson”), John Doe and Jane Doe. (Renewed IFP App., ECF No. 6;

Am. Compl., ECF No. 7.)

By Memorandum and Order dated May 15, 2020 (hereafter,

the “2020 M&O”), the Court accepted and granted the Renewed IFP

Application and sua sponte dismissed the amended complaint without

prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and Federal Rule

of Civil Procedure 8. (See 2020 M&O, ECF No. 8.) Plaintiff was

granted leave to file a second amended complaint and, on June 15,

2020, he did so. (See SAC, ECF No. 9.) The SAC named the same

defendants as Plaintiff’s amended complaint and added Eileen

Powers (Plaintiff’s court-appointed defense attorney in the

underlying criminal case (“Powers”)) and another John Doe (“John

Doe 2”). The SAC, brought pursuant to 42 U.S.C. § 1983, alleged

deprivation of Plaintiff’s Sixth, Eighth, and Fourteenth Amendment

rights, as well as several sections under the United States Code,

including 18 U.S.C. §§ 1510, 1512, and 1519. (See SAC, ¶ II.A.)

Because Plaintiff largely complained of events alleged

to have occurred in 2014, the Court ordered Plaintiff to show cause

(hereafter, “OSC”) why his claims arising from events alleged to

have occurred during February 2014 were not barred by the

applicable statute of limitations. (See OSC, ECF No. 10.) On

September 21, 2020, Plaintiff filed an unsigned response to the

OSC (hereafter, the “Response”) that barely addressed the

timeliness of his claims. (See Response, ECF No. 11.) Rather,

Plaintiff largely argued the merits of his claims. (See id.,

generally.) However, therein, Plaintiff alleged that his attorney

reached a plea agreement on June 20, 2014 which resulted in a six-

month period of incarceration. (See id. at 9, ¶ 21.) He also

alleged that “[i]n the Autumn of 2014”, he had no where to live

following his release from incarceration, and “became an addict of

drugs and alcohol.” (Id. at 10, ¶ 24.)

In an abundance of caution and in light of Plaintiff’s

pro se status, the Court issued another Order to Show Cause whereby

Plaintiff was “afforded a final opportunity to properly respond .

. . in writing, by October 30, 2020, why his Section 1983 claims

are not barred by the applicable three-year statute of limitations”

(hereafter, the “Electronic OSC”). (Sept. 25, 2020 Elec. OSC.)

In compliance, Plaintiff filed a response (hereafter, the

“Reply”). (See ECF No. 12.)

Plaintiff’s Electronic OSC Reply addressed the merits of

his claims as well as the reason for his delay in filing a

Complaint. (See Reply, generally.) Without providing any dates

when these events allegedly occurred, Plaintiff reported that his

“untimely filing was caused by Suffolk County jail conditions and

the circumstances of my confinement. As a direct result, he

”focused on priorities concerning homelessness, addiction and

recovery, [and] other immediate needs.” (Id. at 2.) More

specifically, Plaintiff described that “Suffolk County jails did

not allow complaints and used fear to keep inmates from trying to

complain of treatment.” (Id. at 2, ¶ 1.) Plaintiff also reported

that his “appeal paperwork was damages in Suffolk County jail

transfers and cell tossing.” (Id. at 2, ¶ 2.) Plaintiff continued

his explanation, stating that once he was released from

incarceration, he was “kicked out of the house by my mother” and

“lost personal items and release paperwork.” (Id. at 3, ¶ 3.)

Plaintiff contended that he “prioritized shelter,” presumably over

filing a complaint, and asserted that he spent his days applying

for Medicaid, SNAP2 benefits, and employment so that he would be

eligible “to keep benefits.” (Id. at 3, ¶ 4.) Plaintiff described

using the computers at the public library for these tasks and

acknowledged that he “wasted a lot of time keeping up appearances.”

(Id. at 3, ¶ 6.) In addition, Plaintiff asserted that his “best

friend was murdered soon after and I drank more losing faith.”

(Id. at 4, ¶ 8.) As a result, Plaintiff was “mandated to [a]

minimum of a year in rehabilitation. . . .” (Id. at 4, ¶ 8.)

Plaintiff explained that he began working “two full time temp jobs

and attended outpatient services”, which was across the street

from the Brooklyn courthouse and library. (Id. at 4, 11.) He

further claimed that in 2019 he was “advised about pro se services”

2 “SNAP” is the acronym for the “Supplemental Nutrition Assistance

Program,” the largest federal nutrition assistance program, which

provides benefits to eligible low-income individuals and families.

See, e.g., http://www.benefits.gov/benefit/361.

but, did not pursue filing a complaint because “homelessness was

imminent again.” (Id.) He did, however, “speak with lawyers

anyway but didn’t find a lawyer willing to start a case.” (Id.)

Plaintiff then stated that he: (1) attended his Alcoholics

Anonymous and Narcotics Anonymous meetings; (2) ran a half

marathon; (3) hunted for an apartment; (4) moved to an apartment

in Orange County; and (5) began working in a warehouse. (See id.

at 5, ¶ 13.) Plaintiff “recovered some stability” and “worked for

a year,” but was then “injured in a car accident”. (Id. at 5, ¶

14a-14b.) While researching lawyers to assist him with a wrongful

termination claim, Plaintiff alleged he decided to try to file on

his own. (Id. at 5, ¶ 14b.) Until then, Plaintiff claimed he

“believed [he] couldn’t file without a lawyer” and that he “didn’t

know there was a time limit” for this case. (Id. at 4-5, ¶ 12.)

By Memorandum and Order dated January 25, 2021

(hereafter, the “2021 M&O”) (see ECF No. 13), the Court determined,

inter alia, that, given the early stage in the proceedings,

Plaintiff, “though barely”, had demonstrated that he acted with

reasonable diligence during the time period he sought to be tolled

and that his circumstances were so extraordinary that the equitable

tolling doctrine applied. (2021 M&O at 3 (citing Zerilli-Edelglass

v. N.Y.C. Transit Auth., 333 F.3d 74, 80-81 (2d Cir. 2003)

(internal citations and quotation marks omitted)).) Specifically,

the Court found that Plaintiff’s claim that his untimely filing

was a result of: (1) the conditions of his confinement at the

Suffolk County Correctional Facility; (2) his homelessness; and

(3) his addiction and recovery efforts, was sufficient to survive

sua sponte dismissal. (Id. at 3-4 (citing Reply, generally, and

at 2-3).) However, the Court made clear that “this finding is

without prejudice to the further adjudication of the timeliness of

Plaintiff’s claims should the Defendants raise the statute of

limitations as an affirmative defense.” (Id. at 4, n. 1.)

The Court also considered the merits of Plaintiff’s

claims as set forth in the SAC in accordance with the screening

provision of 28 U.S.C. § 1915(e)(2)(B). Because Plaintiff sought

to pursue claims for relief pursuant to criminal statutes (18

U.S.C. §§ 1510, 1512, and 1519 (see SAC, ¶II.A.) that proscribe

the obstruction of justice and do not provide for a private right

of action, the Court dismissed those claims with prejudice. (See

2021 M&O at 10-12.) Similarly, the Court dismissed Plaintiff’s

claims brought pursuant to 28 U.S.C §§ 455, 1332, 1343, 1361, and

1491; “C.P.L.P 213”; “Prisoner Reform Laws”; and “466 U.S. 668”

because each of these statutes govern procedure in the federal

district courts and none of them provide a separate claim for

relief. (Id.)

With regard to Plaintiff’s remaining Section 1983

claims, pursuant to 28 U.S.C. § 1915(e)(2)(B), the Court dismissed

those claims with prejudice as against the Town Court, Justice

Wilson, the Police Department, the Town, and Powers. (See 2021

M&O at 12-20.) Further, Plaintiff’s remaining Section 1983 claims

against Officer Lawston and the John/Jane Does relating to the

alleged delay in restroom access were dismissed without prejudice

pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii). (Id. at 20-22.)

Finally, Plaintiff’s Section 1983 excessive force claims against

Officer Lawston and the John Doe Defendants, “though sparsely pled,

at this early stage and affording Plaintiff’s pro se pleading a

liberal interpretation” survived sua sponte dismissal. (Id. at

22-23.)

Accordingly, the Court ordered service of the SAC upon

Officer Lawston and the John Doe Defendants. (See 2021 M&O at

23.) Given that service upon the unnamed defendants could not be

effected without more information, the Clerk of the Court was

ordered to serve a copy of the SAC, together with the 2021 M&O,

upon the Town Attorney for the Town of Southampton who was

requested to attempt to ascertain their identities. (Id.) By

letter dated March 3, 2021, the attorney representing Officer

Lawston apprised the Court that, after investigation, the Town has

determined that “only Officer Lawston interacted with [P]laintiff

during the actions complained of in the [SAC].” (ECF No. 16.)

The letter also provided that: “Town’s investigation continues,

and should additional information be made available, the Town shall

supplement this letter accordingly.” (Id.) To date, no further

information has been provided to the Court concerning the

identities of these defendants.

Shortly thereafter, Officer Lawston filed a letter

seeking a pre-motion conference (hereafter, the “PMC Letter”) in

anticipation of moving to dismiss the SAC pursuant to Federal Rule

of Civil Procedure 12(b)(6). (See PMC Letter, ECF No. 19.)

Plaintiff did not respond to the PMC Letter. (See Case Docket, in

toto.) Accordingly, the Court waived the conference requirement

and set a briefing schedule. (See May 3, 2021 Elec. Order.) The

PMC Letter the May 3 Order were served on Plaintiff at his address

of record and were not returned to the Court as undeliverable.

(See Affs. of Serv., ECF Nos. 20, 21; Case Docket, in toto.) By

letter motion dated May 25, 2021, Officer Lawston requested an

extension of time to file the Motion to Dismiss. (See May 25,

2021 Ltr. Mot., ECF No. 22.) Plaintiff did not respond to that

letter motion either, despite it being served upon him at his

address of record. (See Aff. of Serv., ECF No. 23; Case Docket,

in toto.) By Electronic Order dated June 1, 2021 (“the June

Electronic Order”), the Court granted Officer Lawston’s letter

motion and modified the briefing schedule as follows: (1) by June

18, 2021, Officer Lawston was to serve and file his dismissal

motion; (2) by July 23, 2021, Plaintiff was to serve and file his

response; and (3) by August 6, 2021, Officer Lawston was to serve

and file his reply, if any. (See June 1, 2021 Elec. Order.) The

June Electronic Order was also served on Plaintiff at his address

of record and has not been returned to the Court. (See Aff. of

Serv., ECF No. 24; Case Docket, in toto.) On June 18, 2021,

Officer Lawston timely filed his Dismissal Motion. (See ECF No.

25.) To date, Plaintiff has not filed a response to the Dismissal

Motion; nor has he otherwise communicated with the Court about

this case. (See Case Docket, in toto.)

II. Relevant Facts3

The Court sets forth only those facts relevant to the

instant Dismissal Motion, and reiterates that after the Court’s

2021 M&O, only Plaintiff’s Section 1983 excessive force claims

against Officer Lawston and the John Doe Defendants remain.4

In February 2014, Plaintiff was arrested after breaking

the windshield of his then-girlfriend’s car. (See SAC at 6.)

Plaintiff was taken by Southampton Town police to the SJ Court for

arraignment on criminal mischief charges. (See id.) While

awaiting arraignment, Plaintiff alleges that his multiple requests

to use the restroom were denied and so he “jump[ed] on top of the

seating arrangement . . . protesting . . . [that he] will not sit

3 The following facts are drawn from the SAC.

4 As set forth above, supra at 8, all claims arising from any

delay in restroom access have been dismissed. The Court includes

reference to the facts underlying those claims to provide the

sequence of events as related to the remaining excessive force

claims.

until he goes to the bathroom or until Defendant Keith Lawston

attempts to trip (Pl[aintiff]) from 3 feet above ground where

(Pl[aintiff]) protested.” (Id.) Plaintiff describes that he

“gave up the protest but did not sit” and instead “lung[ed] for

the bathroom” when Officer Lawston “put[] an elbow to [Plaintiff’s]

throat.” (Id.) Officer Lawston allegedly “trips both parties”

and “propel[led] [Plaintiff] towards the exit, not the restroom.”

(Id.)

Plaintiff asserts that John Doe entered and, after

consultation with Officer Lawston, accused Plaintiff of “multiple

charges” including attempted escape and assaulting an officer.

(Id.) Plaintiff also claims that John Doe “ignored” his request

to use the restroom and, instead, restrained Plaintiff. (Id. at

7-8.) Plaintiff contends that, thereafter, he was placed face-

down on the floor, with an unknown officer twisting Plaintiff’s

arm until it hurt and digging his knee into Plaintiff’s back. (See

id. at 8.) Plaintiff alleges that Jane Doe then pointed a taser

at him and threatened to taser him because he was yelling and

kicking. (See id.) Plaintiff was then taken back to the Police

Department until the following day when he was returned to the SJ

Court for arraignment. (See id.) As a result of the foregoing,

Plaintiff claims to have suffered “monetary and mental damages”

for which he seeks to recover a damages award in the total sum of

$1 million. (SAC, ¶II.B(3), ¶IV.)

III. Defendants’ Dismissal Motion

The Defendants’ Dismissal Motion seeks dismissal of the

SAC in its entirety pursuant to Federal Rule of Civil Procedure

12(b)(6). (See Dismissal Motion.) More specifically, Defendants

argue that Plaintiff’s claims: (1) are barred by the applicable

statute of limitations and that equitable tolling does not save

them; (2) of excessive force fail to state a claim; and (3) are

subject to dismissal because the Defendants are shielded from

liability by qualified immunity. (See Support Memo, ECF No. 25-

7, at 10-18.) Plaintiff has not opposed the Dismissal Motion.

LEGAL STANDARDS

I. Rule 12(b)(6)

To withstand a motion to dismiss, a complaint must

contain factual allegations that “state a claim to relief that is

plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). This plausibility standard is not a “probability

requirement” and requires “more than a sheer possibility that a

defendant has acted unlawfully.” Id. (internal quotation marks

and citation omitted). Although the Court must accept all

allegations in the complaints as true, this tenet is “inapplicable

to legal conclusions.” Id. Thus, “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id. (citation omitted). Ultimately,

the Court’s plausibility determination is a “context-specific task

that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

A complaint filed by a pro se litigant is to be construed

liberally and “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007). Nevertheless, a pro

se complaint must state a plausible claim for relief and comply

with the minimal pleading standards set forth in Federal Rule of

Civil Procedure 8. See, e.g., Nielsen v. Rabin, 746 F.3d 58, 63

(2d Cir. 2014).

When, as here, a motion to dismiss is unopposed, the

failure to oppose does not, by itself, justify dismissal. McCall

v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000). “[T]he sufficiency

of a complaint is a matter of law that the court is capable of

determining based on its own reading of the pleading and knowledge

of the law.” Goldberg v. Danaher, 599 F.3d 181, 84 (2d Cir. 2010)

(citation omitted); Bloom v. Fischer, 840 F. Supp. 2d 691, 692

(W.D.N.Y. 2012) (“Plaintiff’s failure to oppose the motion to

dismiss does not relieve the Court of its obligation to consider

the merits of plaintiff’s claims.”). Finally, “a statute of

limitations defense may be decided on a Rule 12(b)(6) motion if

the defense appears on the face of the complaint.” Thea v.

Kleinhandler, 807 F.3d 492, 501 (2d Cir. 2015). However, before

a complaint may be dismissed on statute-of-limitations grounds,

the plaintiff should have notice and an opportunity to be heard

with respect to any argument for tolling. Abbas v. Dixon, 480

F.3d 636, 640 (2d Cir. 1997).

DISCUSSION

I. Statute of Limitations Under New York Law

Under New York law, Section 1983 claims are governed by

a three-year statute of limitations. See Owens v. Okure, 488 U.S.

235, 250-51 (1989) (holding that New York’s three-year statute of

limitations for general personal injury actions is applicable to

§ 1983 actions filed in federal courts in New York); Milan v.

Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (“Section 1983 actions

in New York are subject to a three-year statute of limitations,

running from the time a plaintiff knows or has reason to know of

the injury giving rise to the claim.”) (cleaned up); Camacho v.

Nassau Boces Sch. Dist., 21-CV-1523, 2022 WL 256506, *3 (E.D.N.Y.

Jan. 27, 2022) (applying New York’s three-year statute of

limitations to Section 1983 claims). Here, Plaintiff commenced

this action on February 21, 2020 alleging Section 1983 claims

arising from conduct alleged to have occurred in 2014. Thus, such

claims are well outside the three-year statute of limitations.

However, a statute of limitations may be extended under

the doctrine of equitable tolling and is “permitted where a

plaintiff can show ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in

his way and prevented timely filing.’” Jamieson v. United States

Postal Serv., No. 20-CV-06184, 2022 WL 43767, at *2 (E.D.N.Y. Jan.

5, 2022) (quoting Holland v. Florida, 560 U.S. 631, 649 (2010));

see also Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017).

“[T]he term ‘extraordinary’ refers not to the uniqueness of a

party’s circumstances, but rather to the severity of the obstacle

impeding compliance with a limitations period.” Watson, 865 F.3d

at 132 (quoting Harper v. Ercole, 648 F.3d 132, 137 (2d Cir.

2011)). In this regard, the Second Circuit instructs “it is not

enough for a party to show that he experienced extraordinary

circumstances. He must further demonstrate that those

circumstances caused him to miss the original filing deadline.”

Watson, 865 F.3d at 132 (emphasis in original) (cleaned up).

Plaintiff bears the burden to establish that equitable tolling is

warranted. See 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).

“Although federal law determines when a section 1983

claim accrues, state tolling rules determine whether the

limitations period has been tolled, unless state tolling rules

would defeat the goals of section 1983.” Abbas v. Dixon, 480 F.3d

636, 641 (2d Cir. 1997) (internal quotation marks and citation

omitted); Berrios v. Henri, No. 18-CV-4194, 2021 WL 6197052, at *3

(E.D.N.Y. Dec. 30, 2021) (“In § 1983 actions filed in New York,

‘federal courts [are] obligated not only to apply the analogous

New York statute of limitations to . . . federal constitutional

claims, but also to apply the New York rule for tolling that

statute of limitations.’” (citing Leon v. Murphy, 988 F.2d 303,

310 (2d Cir. 1993) (additional citation omitted)).

Under New York law, equitable tolling is an

“extraordinary remedy” that is available only when a plaintiff can

demonstrate that he acted diligently and commenced the action

“within a reasonable time after the facts giving rise to the

estoppel have ceased to be operational.” Doe v. Holy See (State

of Vatican City), 17 A.D.3d 793, 796, 793 N.Y.S.2d 565, 569 (A.D.3d

2005) (citing Simcuski v. Saeli, 44 N.Y.2d 442, 450, 406 N.Y.S.2d

259, 377 N.E.2d 713 (1978) (internal quotation marks and additional

citation omitted)); see also Pulver v. Dougherty, 58 A.D.3d 978,

871 N.Y.S.2d 495, 497 (2009) (equitable estoppel is an

“extraordinary remedy”). Equitable estoppel “estops the

defendant/wrongdoer who has taken ‘affirmative steps to prevent a

plaintiff from bringing a claim’ within the limitations period

from arguing that the plaintiff is at fault and should be precluded

from bringing a claim for failure to bring it within that

limitations period.” Roeder v. J.P. Morgan Chase & Co., No. 20-

CV-2400, 2021 WL 797807 (S.D.N.Y. Feb. 26, 2021), aff’d, No. 21-

552, 2022 WL 211702 (2d Cir. Jan. 25, 2022) (quoting Zumpano v.

Quinn, 6 N.Y.3d 666, 816 N.Y.S.2d 703, 849 N.E.2d 926, 929 (2006));

see also Bennett v. U.S. Lines, Inc., 64 F.3d 62, 66 (2d Cir. 1995)

(“[E]quitable tolling prevents the running of a statute of

limitations against a plaintiff who is unaware that he has a cause

of action because of defendant’s fraudulent acts or concealment.”)

(emphasis added); Putter v. N. Shore Univ. Hosp., 7 N.Y.3d 548,

825 N.Y.S.2d 435, 858 N.E.2d 1140, 1142 (2006) (“[E]quitable

estoppel . . . preclude[s] a defendant from using the statute of

limitations as a defense where it is the defendant’s affirmative

wrongdoing which produced the long delay between the accrual of

the cause of action and the institution of the legal proceeding.”

(emphasis added) (internal quotation marks and citation omitted)).

Indeed, “New York tolls the statute of limitations both (i) where

the defendant conceals from the plaintiff the fact that he has a

cause of action, and (ii) where the plaintiff is aware of his cause

of action, but the defendant induces him to forego suit until after

the period of limitations has expired.” Camacho, 2022 WL 256506,

at *7 (emphasis added) (internal quotation marks and citation

omitted). Neither of these circumstances apply here.

Plaintiff’s reply to the OSC makes clear that none of

the Defendants “concealed” the fact that he had a cause of action

or “induced” him to forego suit until after the statutory period

had expired. To be sure, Plaintiff asserts that his “untimely

filing was caused by Suffolk County jail conditions and the

circumstances of my confinement.” (Reply, ECF No. 12, at 2.) And,

once released from incarceration, he reported that he, instead,

”focused on priorities concerning homelessness, addiction and

recovery, [and] other immediate needs.” (Id.) Given the absence

of any allegations that the Defendants took any affirmative steps

to prevent Plaintiff from timely filing suit, equitable estoppel

does not apply. See Willensky v. Lederman, 13-CV-7026, 2015 WL

327843, *6 (S.D.N.Y. Jan. 23, 2015) (finding equitable estoppel

inapplicable and explaining that the doctrine “applies where it

would be unjust to allow a defendant to assert a statute of

limitations defense, because the defendant’s affirmative

wrongdoing . . . produced the long delay between the accrual of

the cause of action and the institution of the legal proceeding”

(cleaned up) (emphasis added)).

Moreover, Plaintiff has not sufficiently demonstrated

that he has been pursuing his rights “diligently.” Indeed,

Plaintiff acknowledges that, after his release “in Autumn 2014”

(Response, ECF No. 11, at 10, ¶ 24), he participated in many

different activities, yet did not pursue his claims. Specifically,

Plaintiff ran a half marathon, attended Alcoholics Anonymous and

Narcotics Anonymous meetings, moved to an apartment in Orange

County, and began working in a warehouse; however, he did not file

a complaint. (See Reply at 5, ¶ 13.) Further, although Plaintiff

had access to computers at the public library, which he used to

apply for SNAP benefits, Medicaid, and employment, he did not

pursue his claims. (Id. at 3, ¶¶ 4, 6.)

While sympathetic to Plaintiff’s circumstances, he has

not adequately demonstrated a basis to equitably toll the statute

of limitations. See, e.g., Watson v. United States, 865 F.3d 123,

133 (2d Cir. 2017) (“[W]e cannot justify the grant of equitable

tolling to Watson on the ground that he was (however

understandably) focused on avoiding deportation before filing his

claim for administrative damages. Watson’s depression cannot

justify equitable tolling for similar reasons. Depression did not

prevent him from contesting his citizenship before the immigration

judge, so it could not have prevented him from filing his

administrative claim for damages. Nor can equitable tolling be

premised on Watson’s lack of education, pro se status, or ignorance

of the right to bring a claim.”) (citing Menominee Indian Tribe v.

United States, 577 U.S. 250 (2016) (tribe’s mistake of law did not

constitute extraordinary circumstance sufficient to justify

equitable tolling)); cf. Smith v. McGinnis, 208 F.3d 13, 18 (2d

Cir. 2000) (habeas petitioner’s “pro se status . . . does not merit

equitable tolling”). Indeed, “[e]quitable tolling is a rare remedy

to be applied in unusual circumstances, not a cure-all for an

entirely common state of affairs.” Wallace v. Kato, 549 U.S. 384,

396 (2007).

Further, Plaintiff had an opportunity to make any

further argument supporting equitable tolling by opposing the

motion to dismiss, but he forfeited that opportunity by failing to

respond. Mobley v. Crane, No. 21-CV-0299, 2021 WL 5813689, at *1

(N.D.N.Y. Nov. 3, 2021), report and recommendation adopted, 2021

WL 5810406 (N.D.N.Y. Dec. 7, 2021). Thus, upon the record of this

case, equitable tolling is not warranted. Accordingly, finding

Plaintiff’s claims are untimely, the Court GRANTS Defendants’

Dismissal Motion pursuant to Federal Rule of Civil Procedure

12(b)(6).5

II. Leave to Amend

The Second Circuit has stated that “[w]hen a motion to

dismiss is granted, the usual practice is to grant leave to amend

the complaint.” Hayden v. County of Nassau, 180 F.3d 42, 53 (2d

Cir. 1999); see also FED. R. CIV. P. 15(a)(2) (“The court should

freely give leave [to amend] when justice so requires.”). In

addition, leave to replead should be liberally granted to pro se

litigants. See Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir.

2010). However, leave to amend is not required where it would be

futile. See, e.g., Madison Asset LLC v. Deutsche Bank, AG, No.

20-CV-10299, 2021 WL 1894032 (S.D.N.Y. May 11, 2021) (stating leave

5 Finding Plaintiff’s Section 1983 claims untimely, the Court need

not address Defendants’ other arguments in support of their

Dismissal Motion.

to amend should be freely given absent, among other things,

futility of amendment) (quoting Foman v. Davis, 317 U.S. 178, 182

(1962)). Here, given that Plaintiff’s excessive force claims are

well outside of the application statute of limitations, a further

opportunity to replead such claims would be futile. Accordingly,

LEAVE TO AMEND IS DENIED.

CONCLUSION

For the foregoing reasons, Defendants’ Dismissal Motion

(ECF No. 25) is GRANTED as Plaintiff’s Section 1983 claims are

barred by the statute of limitations; thus, Plaintiff’s SAC is

dismissed in its entirety. The Clerk of the Court is directed to:

(1) enter Judgment in the Defendants’ favor; (2) close the case;

and (3) mail a copy of this Order to the pro se Plaintiff.

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies

that any appeal from this Order would not be taken in good faith;

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).

SO ORDERED.

/s/JOANNA SEYBERT _

Joanna Seybert, U.S.D.J.

Dated: February 4 , 2022

Central Islip, New York