“A pro se complaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
How later courts described this case
- “A pro se complaint should not [be] dismiss[ed] without [the Court] granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
Willie L. Joe,
Plaintiff, MEMORANDUM & ORDER
24-CV-1205(EK)(RML)
-against-
Fire Department of New York; City of
New York; Kevin Simpkin; Jane Doe
(Driver of the Car that Struck the
Ambulance),
Defendants.
------------------------------------x
ERIC KOMITEE, United States District Judge:
Plaintiff Willie Joe brings this action, invoking the
Court’s diversity jurisdiction under 28 U.S.C. § 1332. 1
Compl.
ECF No. 1. His request to proceed in forma pauperis pursuant to
28 U.S.C. § 1915 is granted. ECF No. 2. For the reasons below,
the Complaint is dismissed as untimely, but plaintiff is granted
until July 10, 2024 to file an amended complaint.2
Background
Plaintiff Joe is a citizen of Clayton, North Carolina.
Compl. 2-3. Proceeding pro se, he alleges that on November 1,
2013, an ambulance hit him while he was crossing a street in
1 The action was transferred to this court from the United States
District Court for the Southern District of New York on February 22, 2024.
ECF No. 4.
2 The Clerk of the Court is respectfully directed to amend the caption
to conform to the above.
Brooklyn, New York, resulting in unspecified (but “serious”)
injuries. Compl. at 5-6. Joe sues the Fire Department of New
York, the City of New York, Kevin Simpkin (the driver of the
ambulance), and a Jane Doe (the driver of the car that struck
the ambulance).
Plaintiff engaged counsel to represent him in a
lawsuit and believed that a case was pending. This belief arose
from the fact that, years after he engaged counsel, one of the
“defendant[s] show[ed] [his attorney] the video of the accident,
[and the defendant] said that he was going to court to have my
case dismiss[ed].” Id. Plaintiff’s counsel subsequently told
him “that [he] did not have a case.” Id. at 5. The doctor who
treated plaintiff after his accident would not testify in court.
Id. Plaintiff alleges that he was “represent[ed] in bad faith.”
Id. Mr. Joe’s Complaint sounds in negligence, though he does
not expressly assert any cause of action by name; he seeks $1
million in damages for his injuries from the accident. Id. at
6.
Standard of Review
A district court must dismiss an in forma pauperis
action that “(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.” 28
U.S.C. § 1915(e)(2)(B).
A complaint must plead “enough facts to state a claim
to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). 3 A claim is plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). Although all allegations contained in the complaint
are assumed to be true, this tenet is “inapplicable to legal
conclusions.” Iqbal, 556 U.S. at 678.
Pro se complaints are “held to less stringent
standards” than pleadings drafted by attorneys, and the Court
will read a pro se complaint liberally and interpret it to raise
the strongest arguments it suggests. Erickson v. Pardus, 551
U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008). Still, a pro se plaintiff is not
exempt from “compliance with relevant rules of procedural and
substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983).
Discussion
It is apparent from the face of the complaint that
plaintiff’s claims are time-barred. Thus, he fails to state a
3 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
claim upon which relief may be granted. Akassy v. Hardy, 887
F.3d 91, 95 (2d Cir. 2018).
In diversity cases, “federal court[s] sitting in New
York must apply the New York choice-of-law rules and statutes of
limitations.” Baker v. Stryker Corp., 770 F. App'x 12, 14 (2d
Cir. 2019).4 New York negligence claims are subject to a three-
year statute of limitations. New York Civil Practice Law and
Rules (“CPLR”) § 214(4); see also Spinnato v. Unity of Omaha
Life Ins. Co., 322 F. Supp. 3d 377, 391 (E.D.N.Y. 2018).
Subject to certain exceptions that are not implicated here, a
negligence claim “accrues upon the date of injury . . . even if
the plaintiff is unaware that he or she has a cause of action at
the time of injury.” Kampuries v. Am. Honda Motor Co., 204 F.
Supp. 3d 484, 490–91 (E.D.N.Y. 2016).
Based on plaintiff’s allegations, the negligence claim
accrued on November 1, 2013 — the date of the accident.
Plaintiff thus had until October 31, 2016 to file this action.
The complaint does not suggest any basis for equitable tolling.
Indeed, it is settled that the failure to find an attorney to
4 Plaintiff has adequately alleged that all defendants are New York
citizens. Plaintiff is a North Carolina citizen. He alleges $1 million in
damages. Although plaintiff does not specify what his injuries are, he
states that they are “serious.” Compl. at 5-6. To plead the amount in
controversy, plaintiff need only demonstrate a “reasonable probability” that
the amount-in-controversy requirement is satisfied, Tongkook Am., Inc. v.
Shipton Sportswear Co., 14 F.3d 781, 784 (2d Cir. 1994). Since plaintiff
proceeds pro se, the Court assesses that, for now, plaintiff has sufficiently
pled that he meets the amount in controversy threshold necessary for
jurisdiction in federal court.
who will file a case is not a basis for tolling. Qui Yun Li v.
Holder, 352 Fed. Appx 574, 575-76 (2d Cir. 2009). Thus, Mr.
Joe’s claims are time-barred and must be dismissed. See
Kimberly W. v. Saul, No. 21-cv-00042, 2021 WL 880110, at *3 (D.
Conn. Mar. 9, 2021) (“While statute of limitations defenses are
ordinarily raised by the defendant. . . courts can and do
dismiss cases on their own initiative under Section 1915(e)(2)
when an IFP plaintiff’s complaint reveals that [his] claim is
clearly untimely.”); Kantor-Hopkins v. Cyberzone Health Club,
No. 06-CV-643, 2007 WL 2687665, at *7 (E.D.N.Y. Sep. 10, 2007)
(noting that “pro se status and ignorance of the law do not
merit equitable tolling” of the statute of limitations).
Conclusion
Accordingly, the Complaint is dismissed without
prejudice. 28 U.S.C. § 1915(e)(2)(B); Chavis v. Chappius, 618
F.3d 162, 170 (2d Cir. 2010) (“A pro se complaint should not
[be] dismiss[ed] without [the Court] granting leave to amend at
least once when a liberal reading of the complaint gives any
indication that a valid claim might be stated.”).
Plaintiff is granted until September 14, 2024 to file
an Amended Complaint to set forth facts sufficient to establish
compliance with (or toll) the statute of limitations.
Plaintiff is advised that the Amended Complaint must
comply with Rule 8 of the Federal Rules of Civil Procedure. The
rule requires that plaintiff provide a short, plain statement of
a claim against each named defendant and facts sufficient to
allow each defendant to understand plaintiff’s complaints. See
Twombly v. Bell, 425 F.3d 99, 106 (2d Cir. 2005).
Plaintiff is also advised that the Amended Complaint
will completely replace the original Complaint, must be
captioned, “Amended Complaint,” and must bear the same docket
number as this Memorandum and Order: 24-CV-1205 (EK)(RML). No
summons shall issue at this time and all further proceedings
shall be stayed. If plaintiff fails to amend the Complaint by
July 10, 2024, as directed by this Order, or cure the
deficiencies discussed herein, judgment of dismissal shall be
entered.
The Clerk of Court is directed to mail a copy of this
Memorandum and Order to plaintiff and to note the mailing on the
docket. For free, limited-scope legal assistance, plaintiff may
wish to consult the City Bar Justice Center’s Federal Pro Se
Legal Assistance Project in Brooklyn by calling (212) 382-4729.
The Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3), that any appeal would not be taken in good faith
and, therefore, in forma pauperis status is denied for the
purpose of any appeal. Coppedge v. United States, 369 U.S.438,
444-45 (1962).
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United State s District Judge
D ated: August 15, 2024
Brooklyn, New Yo rk