386 F.Supp.2d 53 (2005) | Cited 8 times | D. Connecticut | August 31, 2005


Plaintiff Anthony Barile ("Barile") brings this civil rightsaction pro se, pursuant to 28 U.S.C. § 1915. He alleges thatdefendant Rodrigues used excessive force in effecting Barile'sarrest. Pending is defendants' motion to dismiss. For the reasonsthat follow, defendants' motion is granted.

I. Standard of Review

When considering a Rule 12(b) motion to dismiss, the courtaccepts as true all factual allegations in the complaint anddraws inferences from these allegations in the light mostfavorable to the plaintiff. See Scheuer v. Rhodes,416 U.S. 232, 236 (1974); Flores v. Southern Peru Copper Corp.,343 F.3d 140, 143 (2d Cir. 2003). Dismissal is inappropriate unless itappears beyond doubt that plaintiff can prove no set of facts insupport of his claim which would entitle him to relief. SeeDavis v. Monroe County Bd. of Educ., 526 U.S. 629, 654 (1999);Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). "`[T]he issueis not whether a plaintiff will ultimately prevail but whetherthe claimant is entitled to offer evidence to support theclaims.'" York v. Association of Bar of City of New York, 286 F.3d 122,125 (2d Cir.) (quoting Scheuer, 416 U.S. at 236), cert.denied, 537 U.S. 1089 (2002). In other words, "`the office of amotion to dismiss is merely to assess the legal feasibility ofthe complaint, not to assay the weight of the evidence whichmight be offered in support thereof.'" Eternity Global MasterFund Ltd. v. Morgan Guar. Trust Co. of New York, 375 F.3d 168,176 (2d Cir. 2004) (quoting Geisler v. Petrocelli,616 F.2d 636, 639 (2d Cir. 1980)). However, "[c]onclusory allegations orlegal conclusions masquerading as factual conclusions will notsuffice to prevent a motion to dismiss" from being granted.Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2dCir. 2002) (internal quotation marks and citation omitted).

II. Facts

For the purposes of deciding this motion, the court assumesthat the following allegations contained in the complaint aretrue.

On December 21, 1996, Barile was walking through the DutchPoint Housing Project in Hartford, Connecticut. Barile ran whentwo persons began chasing him. Once he realized that the personswere police officers, Barile stopped running and complied withthe officers' order that he lie, face down, on the ground. Whilehe was on the ground, defendant Rodrigues hit him in the headwith a hand-held radio. Defendant Rodrigues ordered Barile to tell the doctors at the hospital that he injured himself in a"fall."

Subsequently, Barile made a complaint to the Internal AffairsDivision and an investigator was assigned to verify Barile'sclaim. On June 11, 1997, a private attorney informed Barile thatthe law firm had filed a Notice of Intent to sue the City ofHartford.

On April 13, 2004, the Civilian Police Board held a hearing onthe Internal Affairs complaint and sustained the complaint by avote of 4-1. Although the results were forwarded to the thenacting police chief, Barile has received no communicationregarding his complaint.

On July 17, 2004, Barile read a newspaper article indicatingthat the Honorable Ellen Bree Burns, U.S.D.J., had ruled on aconsent decree that would result in the review and, hopefully,resolution of the backlog of complaints against the HartfordPolice Department. Barile commenced this action by complaintdated July 20, 2004.

III. Discussion

Defendants move to dismiss on the ground that the complaint istime-barred.

The limitations period for filing a section 1983 action isthree years. See Lounsbury v. Jeffries, 25 F.3d 131, 134 (2dCir. 1994) (holding that, in Connecticut, the general three-year personal injury statute of limitations set forth in ConnecticutGeneral Statutes § 52-577 is the appropriate limitations periodfor civil rights actions asserted under 42 U.S.C. § 1983). Barilealleges that defendant Rodrigues used excessive force against himon December 21, 1996. Thus, Barile had until December 21, 1999,to file his complaint.

When considering a case filed by a prisoner, the courtsconsider a complaint to have been filed as of the date the inmategives the complaint to prison officials to be mailed to thecourt. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993)(holding that a pro se prisoner complaint is deemed filed asof the date the prisoner gives the complaint to prison officialsto be forwarded to the court) (citing Houston v. Lack,487 U.S. 266, 270 (1988)).

Barile signed his complaint on July 20, 2004. Thus, Barilecould not have given the complaint to prison officials formailing before that date. Even applying the prison mailbox rule,Barile filed his complaint over 4½ years too late. The filing ofa Notice of Intent to sue by plaintiff's counsel did not operateto toll the statute of limitations.

In opposition to the motion to dismiss, Barile states that, onJune 12, 2004, the Honorable Ellen Bree Burns, U.S.D.J., issued aconsent decree requiring that the City of Hartford and theHartford Police Department "clean up all old unresolved issues of police misconduct dating back to 1997." Barile has notidentified the case in which the consent decree was issued and anexamination of the court docket reveals no case pending during2004 that was assigned to Judge Burns with either the City ofHartford or the Hartford Police Department as a party. In anyevent, the existence of a consent decree would not extend thelimitations period to commence an action seeking redress for theDecember 1996 events.1 Thus, defendants' motion todismiss is granted on the ground that the action is time-barred.

IV. Conclusion

Defendants' motion to dismiss [doc. #12] is GRANTED. TheClerk is directed to enter judgment in favor of defendants andclose this case.


Back to top