Carter v. New York State Correctional Officer McPherson

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DAVID CARTER,

Plaintiff, 9:20-CV-0491

(TJM/CFH)

v.

NEW YORK STATE CORRECTIONAL OFFICER

McPHERSON,

Defendant.

APPEARANCES:

DAVID CARTER

19-A-1009

Plaintiff, pro se

Great Meadow Correctional Facility

Box 51

Comstock, NY12821

THOMAS J. McAVOY

Senior United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Pro se plaintiff David Carter ("plaintiff") commenced this civil rights action on or about

January 15, 2020, by filing a complaint in the Eastern District of New York ("EDNY"). Dkt.

No. 1 ("Compl."). On or about February 20, 2020, plaintiff filed a motion for injunctive relief,

which was denied by EDNY District Judge LaShann DeArcy Hall on March 4, 2020. Dkt. No.

2; Docket Entry Dated Mar. 4, 2020. On March 16, 2020, plaintiff filed a motion to compel the

New York State Attorney General to appear in the action. Dkt. No. 7. Without ruling on the

motion to compel, District Judge DeArcy Hall thereafter transferred the action to this District

on April 30, 2020. Dkt. No. 14.

Upon receipt of the action in this District, the Court issued an Order closing the action

because plaintiff had failed to pay the filing fee or file an application to proceed in forma

pauperis ("IFP"). Dkt. No. 16. Plaintiff was directed to pay the filing fee or submit an IFP

application if he wished to proceed with this action. Id. at 3. On May 29, 2020, the Court

received plaintiff's IFP application. Dkt. No. 18. Plaintiff subsequently filed a second and

third motion for injunctive relief. Dkt. Nos. 21, 23.

The Clerk has forwarded plaintiff's complaint, IFP application, and motions to compel

and for injunctive relief to the Court for review.

II. DISCUSSION

Where a plaintiff seeks leave to proceed IFP, the Court must determine whether he

has demonstrated sufficient economic need to proceed without prepaying, in full, the Court's

filing fee of $400. 28 U.S.C. § 1915(a). The "three strikes" provision of 28 U.S.C. § 1915

("Section 1915"), however, bars the plaintiff from proceeding IFP if, at the time he

commences the action, he filed three or more previous actions that were dismissed as

frivolous, malicious, or for failure to state a claim on which relief may be granted. 28 U.S.C. §

1915(g); Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010). Specifically, Section 1915(g)

provides as follows:

In no event shall a prisoner bring a civil action or appeal a

judgment in a civil action or proceeding under this section if the

prisoner has, on 3 or more prior occasions, while incarcerated or

detained in any facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it is frivolous,

malicious, or fails to state a claim upon which relief may be

granted, unless the prisoner is under imminent danger of serious

physical injury.

2

28 U.S.C. § 1915(g). The manifest intent of Congress in enacting this "three strikes"

provision was to deter the filing of multiple, frivolous civil rights suits by prison inmates. Tafari

v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007) (citing Nicholas v. Tucker, 114 F.3d 17, 19 (2d

Cir. 1997)). The Second Circuit has defined a frivolous claim as one that "'lacks an arguable

basis either in law or in fact.'" Tafari, 473 F.3d at 442 (quoting Neitzke v. Williams, 490 U.S.

319, 325 (1989)). To determine whether a dismissal satisfies the failure-to-state-a-claim

prong of Section 1915, courts look to Rule 12(b)(6) of the Federal Rules of Civil Procedure for

guidance. Tafari, 473 F.3d at 442. The question of whether the dismissal of a prior action

constitutes a strike for purposes of Section 1915(g) is a matter of statutory interpretation and,

as such, a question for the Court. Id. If the plaintiff is indigent and not barred by Section

1915(g), the Court must consider the sufficiency of the claims stated in the complaint in

accordance with Section 1915(e) and 28 U.S.C. § 1915A ("Section 1915A").

In this case, plaintiff has demonstrated economic need and has filed the inmate

authorization form required when inmate-plaintiffs seek IFP status in the Northern District of

New York. Dkt. Nos. 18, 19. Thus, the Court must determine whether plaintiff has

accumulated three strikes for purposes of Section 1915(g) prior to filing this lawsuit and, if so,

whether he is entitled to the "imminent danger" exception. 28 U.S.C. § 1915(g); see also

Deleon v. Doe, 361 F.3d 93, 95 (2d Cir. 2004) (concluding that a court may determine

whether a plaintiff has acquired a strike only when the Section 1915(g) issue is ripe for

adjudication).

A. Determination of "Strikes"

3

The Court has reviewed plaintiff's litigation history on the Federal Judiciary's Public

Access to Court Electronic Records ("PACER") Service. See PACER Case Locator, Advance

Party Search, https://pcl.uscourts.gov/pcl/pages/search/findPartyAdvanced.jsf (last visited

July 30, 2020).1 On the basis of that review, the Court finds that, as of the date that plaintiff

commenced this action, he had acquired three strikes because he filed at least three previous

civil actions while incarcerated that were dismissed for failure to state a claim upon which

relief may be granted.2 See Carter v. Doe I, No. 12-CV-9278, Dkt. No. 16 (S.D.N.Y. filed Dec.

19, 2012) (dismissed for failure to state a claim upon which relief may be granted pursuant to

Section 1915(e)(2)(B)(ii)); Carter v. Cuomo, No. 11-CV-5705, Dkt. No. 4 (E.D.N.Y. filed Nov.

17, 2011) (dismissed for failure to state a claim upon which relief may be granted pursuant to

Section 1915A(b)(1)); Carter v. Doe, No. 05-CV-8432, Dkt. No. 16 (attached as Exhibit A)

(S.D.N.Y. filed Sept. 30, 2005) (dismissed for failure to state a claim upon which relief may be

granted pursuant to Rule 12(b)(6)).3

Because plaintiff accumulated three strikes under Section 1915(g) prior to

1 The Court searched PACER's database using plaintiff's name, David Carter. That search revealed

dozens of actions filed by multiple individuals named "David Carter." Upon review of each of the actions

commenced by a "David Carter," the Court has concluded that the "David Carter" that commenced this action

has previously filed at least 64 civil lawsuits in this Circuit while incarcerated. During its investigation concerning

the previous lawsuits filed by plaintiff, the Court also discovered that plaintiff has been in the custody of the New

York State Department of Corrections ("DOCCS") before and been assigned the following six DOCCS

Department Identification Numbers: (1) 19-A-1009, (2) 12-A-5083, (3) 05-A-2964, (4) 01-A-5428, (5) 99-A-1615,

and (6) 81-B-1007. Plaintiff's New York State Identification Number is 04613486L.

2 The Southern District of New York ("SDNY") has found that plaintiff has acquired three strikes under

Section 1915(g) in at least 30 actions filed by plaintiff in that District. See, e.g., Carter v. New York City John

Doe Corr. Officer Male Hispanic, No. 16-CV-3466, Dkt. No. 5 (S.D.N.Y. filed May 10, 2016).

3 Because of the age of the action, the SDNY's decision dismissing Carter v. Doe, No. 05-CV-8432, is

not electronically available on PACER. With the assistance of the Second Circuit's Library, the Court

nevertheless obtained a copy of the dismissal order and has attached it to this Decision and Order as Exhibit A.

The action was dismissed as time-barred pursuant to Rule 12(b)(6). Carter v. Doe, No. 05-CV-8432, Dkt. No. 16

(attached as Exhibit A). The dismissal of an action based on the expiration of the statute of limitations

constitutes a strike for purposes of Section 1915(g). Akassy v. Hardy, 887 F.3d 91, 95 (2d Cir. 2018).

4

commencing this action, the Court must next consider whether the "imminent danger"

exception to that rules applies.

B. Applicability of the "Imminent Danger" Exception

Congress enacted the "imminent danger" exception contained in the final phrase of

Section 1915(g) as a "safety valve" to prevent impending harms to prisoners otherwise barred

from proceeding IFP. Malik v. McGinnis, 293 F.3d 559, 563 (2d Cir. 2002). Generally, the

allegations relevant to this inquiry "are those in which [the plaintiff] describes physical injury,

threats of violence, and deprivation of medical treatment." Chavis, 618 F.3d at 165.

"[F]or a prisoner to qualify for the imminent danger exception, the danger must be

present when he files his complaint–in other words, a three-strikes litigant is not excepted

from the filing fee if he alleges a danger that has dissipated by the time a complaint is filed."

Pettus v. Morgenthau, 554 F.3d 293, 296 (2d Cir. 2009); see also Polanco v. Hopkins, 510

F.3d 152, 156 (2d Cir. 2007); Malik, 293 F.3d at 562-63. In addition, Section 1915(g) "allows

a three-strikes litigant to proceed [IFP] only when there exists an adequate nexus between

the claims he seeks to pursue and the imminent danger he alleges." Pettus, 554 F.3d at 296.

In deciding whether such a nexus exists, the Second Circuit has instructed courts to consider

"(1) whether the imminent danger of serious physical injury that a three-strikes litigant alleges

is fairly traceable to unlawful conduct asserted in the complaint and (2) whether a favorable

judicial outcome would redress that injury." Id. at 298-99 (emphasis omitted). "[T]hough [a

court is] obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint

supports, [the Court] cannot invent factual allegations that [the plaintiff] has not pled." Chavis,

618 F.3d at 170.

Here, plaintiff's complaint alleges that he was assaulted by another inmate on an

5

unidentified date, which resulted in a severe injuries to plaintiff's "pelvic area and lower

extremities." Compl. at 2. Plaintiff alleges that defendant Great Meadow Correctional Facility

("Great Meadow C.F.") Correctional Office McPherson paid the other inmate to assault

plaintiff. Id. Prior to that assault, defendant McPherson allegedly harassed plaintiff by

confiscating a pair of plaintiff's sneakers and opening plaintiff's "lock/safe" without permission.

Id. at 3. Defendant McPherson also spread rumors about plaintiff at Great Meadow C.F. and

threatened plaintiff with "abuse" and transfer to a different prison cell. Id. at 4-5. Plaintiff

further alleges that defendant McPherson "presently continues to make threats and appears

before [plaintiff's] cell frequently in [a] threatening manner to harass and do odd things to

place [plaintiff] in harms [sic] way with [plaintiff's] peers on a daily basis." Id. at 5. According

to plaintiff, defendant McPherson "appears persistent and having a determined idea to

harass, humiliate, assault [plaintiff] and possibly murder [plaintiff] by conspiring with other

officers." Id.

Notwithstanding the fact that the allegations set forth in the complaint attempt to paint

a picture of imminent danger,4 the allegations are conclusory and vague. Importantly,

plaintiff's complaint fails to assert a cognizable cause of action against defendant McPherson

because the complaint asserts a claim of harassment, which, on its own, is not sufficient to

state a claim under 42 U.S.C. § 1983. See Purcell v. Coughlin, 790 F.2d 263, 265 (2d Cir.

1986) (affirming the dismissal of a claim based only on allegations of verbal harassment

4 Plaintiff further attempts to allege imminent danger in one of his motions for injunctive relief, where he

accuses defendant McPherson of "influenc[ing]" other correctional officers to assault him on May 13, 2020. Dkt.

No. 21 at 4. (The assault on May 13, 2020, is the subject matter of another lawsuit recently filed by plaintiff in

this District. See Carter v. Doe #1, No. 20-CV-0576 (N.D.N.Y. filed May 27, 2020).) Other than this conclusory

allegation, however, there are no allegations plausibly suggesting that defendant McPherson was involved with

the assault in any respect. See Dkt. No. 21 at 4.

6

absent any injury). To the extent plaintiff's complaint asserts a claim based on the

confiscation and/or destruction of personal property, the allegations describe a random and

unauthorized act by defendant McPherson. Compl. at 3. Under those circumstances, due

process requires only a post-deprivation proceeding, and New York provides an adequate

post-deprivation remedy in the Court of Claims with respect to property claims by prisoners.

See Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996) (affirming the dismissal of a due

process claim based on allegations that the defendants confiscated the plaintiff's glasses

"because of the availability of state court post-deprivations remedies"). For that reason, even

assuming that plaintiff's complaint alleged sufficient facts for purposes of Section 1915(g)'s

imminent danger provision and the Court granted plaintiff IFP status, the complaint is subject

to dismissal without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

In any event, although plaintiff alleges that defendant McPherson appears at his cell

"in [a] threatening manner" and that defendant McPherson placed plaintiff in danger of

violence by other inmates, plaintiff fails to describe defendant McPherson's specific conduct.

Compl. at 5. Similarly, plaintiff's speculative belief that defendant McPherson is intent on

"possibly murder[ing him]" is not plausible even if the rest of plaintiff's allegations are

assumed to be true because defendant McPherson's specific conduct as alleged can be

characterized only as mildly harassing behavior (e.g., confiscating plaintiff's sneakers,

opening a lock/safe in plaintiff's cell). For purposes of the imminent danger analysis under

Section 1915(g), it is not enough to set forth vague and conclusory allegations that do not

support a cognizable legal claim. See Clark v. Morgan, No. 15-CV-10994, 2015 WL

1541890, at *2 (E.D. Mich. Apr. 7, 2015) ("Conclusory or vague allegations of some potential

danger are insufficient to satisfy the exception to the three strikes rule.") (citing Thompson v.

7

Sampson, No. 10-CV-0231, 2010 WL 1027897, at *3 (W.D. Mich. Mar. 18, 2010) ("Certainly,

Plaintiff's vague assertion that he would experience the 'likelihood' of imminent danger if he

was not released from prison early does not suggest that the danger is real or proximate.")).

In light of plaintiff's three strikes and the complaint's failure to allege imminent danger

that is related to a cognizable legal cause of action, plaintiff is barred from proceeding in this

action IFP, and his application for IFP status is therefore denied. If plaintiff wishes to proceed

with this action, he must, within 30 days of the filing date of this Decision and Order, pay the

full statutory filing fee of $400. Plaintiff is advised that his failure to timely comply with this

Decision and Order will result in dismissal of this action, without prejudice, without further

Order from the Court.

III. CONCLUSION

WHEREFORE, it is

ORDERED that plaintiff's application to proceed in the action in forma pauperis (Dkt.

No. 18) is DENIED pursuant to 28 U.S.C. § 1915(g) because plaintiff has acquired three

strikes prior to filing this action and is not entitled to the imminent danger exception; and it is

further

ORDERED that this action shall be DISMISSED without prejudice unless, within 30

days of the date of this Decision and Order, plaintiff pays the Court's full filing fee of $400;

and it is further

ORDERED that, upon receipt of the full filing fee from plaintiff, the Clerk of the Court

shall return the file to the Court for review of the complaint in accordance with 28 U.S.C. §

1915A(b); and it is further

8

ORDERED that, if plaintiff fails to remit the filing fee as described in this Decision and

Order, the Clerk of the Court shall enter judgment dismissing this action, without prejudice,

without further order of the Court; and it is further

ORDERED that plaintiff's motions for injunctive relief (Dkt. Nos. 21, 23) are DENIED

without prejudice; and it is further

ORDERED that plaintiff's motion to compel (Dkt. No. 7) is DENIED; and it is further

ORDERED that the Clerk of the Court serve a copy of this Decision and Order on

plaintiff.

IT IS SO ORDERED.

DATED: July 30, 2020 Gogh ee

Thomas J. MgAvoy

Senior, U.S. District Judge

EXHIBIT A

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UNITED STATES DISTRICT COURT.* 0-2 5h oe tM | 26 2006

SOUTHERN DISTRICT OF NEW YORK 3 □

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DAVID CARTER,

Piaintiff,

- against —

MEMORANDUM AND ORDER

CAPTAIN JANE DOE, and

CORRECTION OFFICER ARROYO, #8881, 05 Civ. 8432 (NRB)

Defendants.

ee a ee

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

Pro se plaintiff David Carter (“plaintiff or

“Carter”) has brought this action pursuant to 42 U.S.C. §

1983 (*°§1983”") against Correction Officer Arroyo (“Arroyo”)

and an unidentified New York State Department of

Corrections Captain. Carter signed the original complaint

on July 18, 2005 which was filed on September 30, 2005. On

October 17, 2005, plaintiff filed an amended complaint.?

Arroyo has moved to dismiss the complaint pursuant to Fed.

R. Civ. P. 12 (b) (6) (“Rule 12(b} (6)%), arguing that

1 Plaintiff’s amended complaint is substantially the same as

the original complaint; it includes the same requests for relief

and exhibits. However, in the amended complaint, plaintiff

alleges that a prison grievance representative advised him to

pursue this § 1983 action. Plaintiff also claims that he was

° “shown certain rules that stated that the complaint was late, and

as well was out of the commisioner’s [sic] jurisdiction, being

that this incident occured [sic] within another agency.” Pl. Am.

Compl. at 2.

plaintiff's claim is time-barred. In plaintiff's reply to

the motion to dismiss, he argues that the statute of

limitations should be tolled because he suffered from, and

continues to experience, “mental illness and illogical

thinking.” Pl. Reply in Opp’n to Def. Mot. at 1. For the

reasons set forth below, we grant defendant’s motion to

dismiss.

BACKGROUND”

The incident at issue in this litigation occurred on

August 23, 2001, when plaintiff was transferred from Rikers

Tsiand Correctional Facility (“Rikers”) to Bellevue

Hospital’s Psychiatric Ward (“Bellevue”) for a

psychological evaluation.° Upon his arrival at Bellevue,

2 The facts in this section are taken from plaintiff's

original complaint and the amended complaint. For purposes of

resolving the Rule 12 (b) (6) motion, we assume that the factual

allegations in the complaint and amended complaint are true.

3 In a Consultation Request form dated August 21, 2001, the

referring physician from Rikers wrote that plaintiff had a

“history of schizoaffective disorder Bipolar type [and] haldl]

been non-compliant [as to] his treatment for the past several

weeks.” Compl., Ex. A. The referring physician described

plaintiff as “increasingly agitated and paranoid.” Id. He also

noted that plaintiff “ha[d] been threatening toward staff and his

peers,” and that Carter had a “history of multiple assaults on

his peers.” Id. Additionally, the referring physician noted

Carter’s “illogical thought process” and “persistent delusions,”

that his “impulse control [was] poor,” and that Carter had

“aggressivity [sic], hostility, [and] combativity {sic}.” Id.

The referring physician requested that the physician at Bellevue

“evaluate[] [Carter] for [a] higher level of care.” Id.

On August 23, 2001, the date of the alleged incident, the

evaluating physician at Bellevue appears to have added certain

plaintiff claims that he asked Arroyo, a corrections

officer at Bellevue, if he could use the bathroom. Arroyo

allegedly replied, “You don’t need to use the bathroom you

just want those handcuffs off and shackles.” Compl., Ex.

C. Plaintiff responded by telling Arroyo to “mind his

business.” Id. Plaintiff claims that he then informed the

second defendant in this case, an unidentified female New

York State Department of Corrections Captain, that Arroyo

was “interfering with [his] right to use the bathroom.” Id.

Arroyo allegedly responded by threatening Carter. Id.

Carter alleges that Arroyo next assaulted him, while he was

fully restrained, as Carter was being transferred to the

nineteenth floor of Beilevue. Specifically, Arroyo struck

plaintiff on the head, causing him to fall forward and trip

over his shackles. See Compl., Ex. B. Plaintiff reported

this incident to Captain A. Brimm, who filled out an Injury

to Inmate Report dated August 27, 2001. Id.

notes to plaintiff's Consultation Request form. He described

plaintiff as “cooperative, easily engagable [sic],” and

“workable.” Id. The form also contains recommendations that

Carter be treated with the medications Depakote, 4ayprexa, and a

“more potent D2 blocker.” Id.

a A physician assistant completed a portion of the same

report. The physician assistant noted that plaintiff did not

have any lacerations or bruises, but complained about “tenderness

to palpation over occipital lobe.” Compl., Ex. B. The physician

assistant recommended that plaintiff be returned to housing.

Carter's complaint, medical records, and other

submissions to this Court make it clear that he suffers

from mental illness which has required regular medication

and psychiatric treatment.*° However, the records of this

Court also indicate that this mental illness has not

interfered with Carter’s ability to initiate and pursue

federal lawsuits. Carter previously filed two unrelated

complaints asserting § 1983 claims on July 19, 2001 and on

April 9, 2004 in the Southern District of New York. See

Carter v. Guiliani, et al., 02 Civ. 5592 (VM); Carter v.

New York City, et al., 04 Civ. 2729 (MBM)...

DISCUSSION

I. Legal Standards

In resolving a Rule 12(b) (6) motion to dismiss, courts

may consider “only the facts alleged in the pleadings,

documents attached as exhibits or incorporated by reference

in the pleadings and matters of which judicial notice may

be taken.” Samuels v. Air Transp. Local 504, 992 F.2d 12,

15 (2d Cir. 1993). Moreover, we must accept the truth of

factual allegations set forth in the complaint and draw all

5 To support his tolling argument, Carter has submitted a

number of medical records to this Court that were received on

December 20, 2005, January 6, 2006, January 23, 2006, and January

30, 2006. Based on our review of these medical records, it

appears that Carter suffers from schizophrenia.

reasonable inferences in favor of the plaintiff. See,

e.g., Allaire Corp. Vv. Okumus, 433 F.3d 248, 249-50 (2d

Cir. 2006). We are also mindful of the principle that

pro se complaints must be liberally construed. See, €.9.,

Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998).

However, dismissal under Rule 12(b) (6) is appropriate if

the facts clearly demonstrate that plaintiff’s claims are

time-barred. See, ¢.g., Cantor Fitzgerald Inc. v. Lutnick,

313 F.3d 704, 709 (2d Cir. 2002); Ferber v. Citicorp

Mortgage, Inc., 94 Civ. 3038 (AGS), 1996 WL 46874, at *2

(S.D.N.Y. Feb. 6, 1996).

The statute of limitations governing a § 1983 action

is the forum state’s statute of limitations for personal

injury actions. See Owens v. Okure, 488 U.S. 235, 250

(1989). Since this case has been brought in New York, the

relevant statute of limitations is three years. See

C.P.L.R. § 214(5); Ormiston v. Nelson, 117 F.3d 69, Ti (2d

Cir. 1997); Jackson v. Suffolk County Homicide Bureau, 135

F.3d 254, 256 (2d Cir. 1988). However, accrual is governed

by federal law, and the statute of limitations for a § 1983

action begins to run when the plaintiff “knows or has

reason to know of the harm that is the basis of his claim.”

Connolly v. McCall, 254 F.3d 36, 41 (2d Cir. 2001) (quoting

Eagieston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994).

New York state law also provides the applicable

tolling rules in a § 1983 action. See Pearl v. City of

Long Beach, 296 F.3d 76, 80 (2d Cir. 2001) (citing Board of

Regents v. Tomanio, 446 U.S. 478, 484-86 (1980})}; Corcoran

New York Power Authority, 202 F.3d 530, 543 (2d Cir.

1999) (citing Leon v. Murphy, 988 F.2d 303, 310 (2d Cir.

1993)). tn this case, the relevant tolling rule is set

forth in § 208 of New York Civil Practice Laws and Rules

(“Section 2087) which establishes that statutes of

limitation may be tolled when a claimant suffers from the

disability of insanity. In relevant part, the statute

provides:

If a person entitled to commence an

action is under a disability because of

. . . insanity at the time the cause of

action accrues, and the time otherwise

limited for commencing the action is

three years or more and expires no later

than three years after the disability

ceases . . . the time within which the

action must be commenced shall be

extended to three years after the

disability ceases ...

Section 208 does not define the term “insanity.”

However, the New York Court of Appeals established a

standard for evaluating the applicability of Section 208 in

McCarthy v. Volkswagen of America, Inc., 55 N.Y.2d 543, 450

N.Y.S.2d 457 (N.Y. 1982). McCarthy instructs chat the

tolling provision is only available to “those individuais

who are unable to protect their legal rights because of an

over-all inability to function in society.” McCarthy, 55

N.Y.2d at 548, 450 N.Y.S.2d at 460. At the heart of an

individual’s ability to protect his or her legal rights is

the ability to recognize a violation of those rights. See

Sanders v. Rosen, 605 N.Y.S.2d 805, 814 (N.Y. Sup. Ct.

19933 (“What the statute clearly contemplates is a

disability which prevents a plaintiff from recognizing a

legal wrong and from engaging an attorney to rectify it.”).

Section 208 is to be narrowly interpreted in light of its

legislative history, which reveals that the provision is

only intended to apply to cases when an individual suffers

from a mental disability that is “severe ana

incapacitating.” Swartz v. Berkshire Life Ins. Co., 99

Civ. 9462 (JGK), 2000 WL 1448627, at *5 (S.D.N.Y. Sept. 28,

2000) (citing Dumas v. Agency for Child Development — New

York City Head Start, 2369 F. Supp. 831, 833 (S.D.N.Y.

1983)).°

6 whe Advisory Committee deliberately rejected a proposal to

substitute the term “mental illness” for the term “insanity” in

Section 208. See Caliahan v. Image Bank, 184 F.Supp.2d 362, 364

(S.D.N.¥. 2002) (citing McCarthy, 55 N.¥.é¢d at 548, 450 N.Y.S.2d

at 459); Sanders v. Kiley, 91 Civ. 6320 (KMW), 1995 WL 77916, at

*5 (S.D.N.Y. Feb. 23, 1995).

In order to be eligible for tolling under Section 208,

plaintiffs must aiso establish that the disability of

insanity was continuous during the relevant period. See De

Los Santos v. Fingerson, 97 Civ. 3972 (MBM), 1998 WL

740851, at *3 (S.D.N.¥. Oct. 23, 1998). “[I]£ the

plaintiff had a lucid interval of significant duration,

preceded and followed by a period of insanity, the toll is

lost and is not resurrected when a plaintiff relapses into

insanity.” Graboi v. Kibel, 432 F. Supp. 572, 579

(S.D.N.Y. 1977); see also Dumas, 569 F. Supp. at 832-33.

II. Analysis

In this case, it is undisputed that plaintiff’s cause

of action accrued on August 23, 2001, the date of the

alleged incident, and that the statute of limitations would

normally expire three years later, on August 23, 2004.

Plaintiff signed the original complaint on July 18, 2005.

Therefore, Carter's § 1983 claim is time-barred unless this

Court concludes that the tolling provision of Section 208

applies.

Because a plaintiff’s mental state may present a

complex factual issue, courts often conduct hearings to

determine whether a plaintiff’s mental condition during the

relevant period meets the standard for insanity under

Section 208. See Wenzel v. Nassau County Police Dep’t, 914

F. Supp. 902 (E.D.N.Y. 1996). However, in this case, no

hearing is necessary because plaintiff's litigation history

and medical records clearly preclude a finding that

Carter’s mentai iliness was sufficiently severe or

continuous to warrant tolling the statute of limitations

under Section 208.

Most significantiy, Carter filed and litigated two

lawsuits in the Southern District of New York during the

three-year period following the incident at issue in this

case. These lawsuits demonstrate Carter’s ability to

advance his own legal interests. Carter did not simply

file these complaints, he actively litigated them pro Se.

The first case, Carter v. Guiliani, et al., 02 Civ. 05592

(VM), was filed on July 19, 2002, and Carter successfully

settled the case with defendants in June 2003. The second

case, Carter v. New York City, et al., 04 Civ. 02729 (MBM),

was filed on April 9, 2004 and ultimately dismissed by

Judge Mukasey on October 12, 2004. In light of this

litigation history, Carter clearly experienced lucid

intervals during the statutory period and the tolling

provision of Section 208 is not available to him.

Plaintiff's medical records also suggest that he was

able to function for significant intervals between August

23, 2001 and August 23, 2004. These records, dated

throughout the three-year period following the alleged

incident, document the fact that plaintiff was admitted to

psychiatric hospitals for treatment on multiple occasions.

While some of the intake documents describe plaintiff as

“actively hallucinating,” “suicidal,” and “threatening,”

these records also reported “significant improvement

Upon release, plaintiff was repeatedly described as calm,

with “thoughts [that] are fairly organized,’® as well as

“cooperative [and] mood neutral.” While the medical

records confirm that Carter has a history of mental illness

and has been hospitalized during periods when he stopped

taking prescribed medications, they do not suggest that he

was continuously unable to function in society or insane

for purposes of Section 208,

7 Woodhull Medical and Mental Health Center, “Presenting

Problem and History of Present Illness,” dated Sept. 27, 2003.

® Woodhull Medical and Mental Health Center, “Discharge

Summary,” dated Oct. 9, 2003.

9 Metropolitan Hospital Center, Adult Inpatient Psychiatric

Services, “Discharge and Aftercare Plan,” dated Apr. 28, 2004.

In correspondence to this Court, plaintiff has indicated

that he experiences periods of lucid thought. See Pl. Letter to

this Court dated Jan. 18, 2006 (“My mental illness has it [sic]

spells which is out of my control. I do my best when coherent.”).

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CONCLUSION

Because this Court has concluded that plaintiff’s §&

1983 claim is time-barred, the complaint is dismissed with

prejudice. The Clerk of the Court is respectfully

requested to close this case.

IT IS SO ORDERED.

Dated: New York, New York

July 25, 2006

“a

fo . K,

AF okt □ Chetan ll □□□ fl

NAOMI REICE BUCHWALD

UNITED STATES DISTRICT JUDGE

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Copies of the foregoing Memorandum and Order have been

mailed on this date to the following:

Plaintiff

David Carter

# O5-A-2964

Woodbourne Correctional Facility

99 Prison Road

P.O. Box 1000

Woodbourne, New York 12788-1000

Counsel for Defendants

Seth D. Eichenholtz, ksq.

Elizabeth M. Daitz, Esq.

Office of the Corporation Counsel

City of New York

100 Church Street

New York, New York 10007

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