Rivera v. Erfe et al

3:21-cv-00316-SVN

2022 | Cited 0 times | D. Connecticut | April 22, 2022

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT ANGEL RIVERA, Plaintiff, v. MUCHA, BRYANT, ADAMS, Defendants.

3:21-CV-316 (SVN)

April 22, 2022 AND MOTIONS TO APPOINT COUNSEL

Sarala V. Nagala, United States District Judge. Plaintiff Angel Rivera has brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by Defendants Lieutenant Mucha, Correction Officer Bryant, and Correction Officer Adams, who are all employed by the Connecticut Department of Correction In addition, Plaintiff has filed two motions requesting an appointment of pro bono counsel. Defendants have moved to dismiss the complaint, contending that it is barred by the applicable statute of limitations. motion to dismiss without prejudice to allow further development of the factual record on the

issues of equitable an appointment of pro bono counsel for the purpose of this further factual development.

I. FACTUAL BACKGROUND er, ECF No. 11, set motion to dismiss, in detail. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

summary, during the relevant time period, Plaintiff was incarcerated at Cheshire Correctional

his clothes pursuant to strip search protocol. Id. at 2. Mucha then ordered Bryant and Adams to place Plaintiff in handcuffs and a black box, the type of restraints used when transporting an inmate to court. Id. Bryant and Adams restrained Plaintiff as instructed without first permitting him to put his clothes on. Id. at 2 3. While applying the restraints, Bryant and Adams came into contact been suffering from anxiety and post-traumatic stress order before this incident, thereafter

experienced nightmares and exacerbated symptoms of his mental illnesses. Id. at 7 8.

January 25, 2021. Id. at 4. On the final pa perjury that he had read the complaint and that the information contained therein was true and

correct, and his signature is dated January 26, 2021. Id. March 10, 2021. Id. at 1. At the time of filing his complaint, Plaintiff had been released from

custody, although he has since been reincarcerated.

two claims pursuant to 42 U.S.C. § 1983: first, that Mucha, Bryant, and Adams violated his Fourth Amendment right of bodily privacy by placing Plaintiff in the transport restraints without permitting him to put his clothes on; and second, that Mucha, Bryant, and Adams sexually abused him in violation of the Eighth Amendment by unnecessarily touching his genitals for an excessive period of time while applying the transport restraints. ECF No. 11 at 7 9; ECF No. 1 at 7. The Court permitted these claims to proceed and dismissed all others, including all claims against ECF No. 11 at 6, 12.

Thereafter, the remaining Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 15. They contend that the three-year limitations period

In opposition, Plaintiff notes that he prepared his complaint before the expiration of the limitations period and essentially urges the Court to conclude, for various reasons including periods of quarantine resulting from COVID-19 and his own his diagnosis with COVID-19, that the period was equitably tolled from then until the date it was filed. See ECF Nos. 18, 31. He also asks the Court to appoint pro bono counsel to help prosecute his claims. ECF Nos. 37, 40.

II. TIMELINESS

A. Legal Standard Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted , 869 F.2d 160, 162 (2d Cir. 1989). To must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 556). Cohen v. S.A.C. Trading Corp., 711

F.3d 353, 359 (2d Cir. 2013) (citation omitted).

contains no explicit statute of limitations. actions brought under § 1983, the courts must borrow a state statute of limitations. . . . The statute to be borrowed is the one that is most appropriate . . . or most analogous . . . so long as it is not Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994)

(citations and internal quotation marks omitted). Courts in this district generally subject § 1983 claims to the three-year limitations period of Connecticut General Statutes § 52-577, which pertains to general tort claims not specifically covered by different limitations provisions. Id. at 134.

Accordingly, -year limitations period provided by § 52-577. See id. (noting that § 52-577 encompasses a variety of injuries to personal interests). As noted, the incident is alleged to have occurred on January 28, 2018. ECF No. 1 at 6. Plaintiff had a complete cause of action on that date, which prompted the limitations period to begin. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (holding that, under federal law, a claim Singleton v. City of New

York, 632 F.2 that point in time when the plaintiff knows or has reason to know of the injury which is the basis

hus, the limitations period expired on January 28, 2021, three years after the date of the alleged incident. Because Plaintiff filed his complaint on March 10, 2021, approximately six weeks after the limitations period expired, his claims are untimely.

However, his rights

diligently but some extraordinary circumstance prevents him from bringing a timely Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circums Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). hile equitable tolling is warranted only in rare and

exceptional circumstances . . . Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011) (citations and internal quotation marks omitted). -by-

specific circumstances, often hard to predict in advance, could warrant special treatment in an Id. (quoting Holland v. Florida, 560 U.S. 631, 650 (2010)).

pursuit of his claim throughout the period he seeks to toll. . . . If such a showing is not made,

equitable tolling should be denied or at least circumscribed to the period for which diligence and Harper, 648 F.3d at 139 (citations and internal quotation marks omitted); see also Adkins v. Warden, 585 F. S equitably tolled but This standard

does not call Harper, 648 F.3d

at 138 39 (citations and internal quotation marks omitted).

The second element Id. Id. ical

Id. (citing Bolarinwa v. Williams, 593 F.3d 226, 231 32 (2d Cir. 2010) (holding that a mental illness may equitably toll the limitations period to file a federal habeas petition), and Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002) (holding that a mental illness may equitably toll the

limitations period to file a discrimination claim)). However, with respect to a medical condition or other extraordinary circumstance, the litigant must demonstrate that the extraordinary caused Id. at 137 (emphasis added) (citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) equires the [litigant] to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the [litigant], acting with reasonable diligence, could have filed on time notwithstanding . With respect to a medical condition, this requires the litigant to functiBolarinwa, 593 F.3d at 232

(citation and internal quotation marks omitted).

B. Discussion -specific inquiry called for in these circumstances is most and, thus, that . See id. Plaintiff contends [he] filed on March 10, 2021 was due to Covid-19[.] ECF No. 18 at 5. Specifically, Plaintiff

represents that, while released from state custody, he contracted the COVID-19 virus, for a second time, sometime during December of 2020 or January of 2021, around when the limitations period expired. Id.; see also ECF No. 31 at 3 4 -19 and that, sometime during February of 2021, while still feeling unwell from his COVID diagnosis, he

was placed in a housing program that had a COVID outbreak Plaintiff asserts, he was required to quarantine again until early March of 2021.

These contentions raise an inference that, throughout the final weeks of the limitations period and extending several more weeks beyond the expiration of the period, Plaintiff faced a severe obstacle outside his control due to a symptomatic COVID-19 illness that adversely affected his capacity to pursue his rights, or a series of enforced quarantines that prevented him from mailing or delivering his prepared complaint to the courthouse, or both. Such circumstances could fall within the category of mental and physical illnesses that warrant equitable tolling. See Bolarinwa, 593 F.3d at 232.

The issues of whether such circumstances in fact occurred and the extent to which they ions period present factual questions not properly resolved on a motion to dismiss. See , No. 30-CV-4834 (JMF), 2021 WL 3408587, at *3 4 (S.D.N.Y. Aug. 4, 2021) ( Court cannot say as a matter of law that equitable tolling is unavailable because it turns on factual

, 507 F. Supp. 3d a plaintiff raises an equitable tolling argument in response to a motion to dismiss on statute of limitations grounds, the motion to dismiss should be denied unless all assertions of the complaint, as read with required liberality, would not permit the plaintiffs to prove that this statute was tolled

Accordingly, the Court will deny the motion to dismiss to permit further development of the factual record. See Brown the limited record medical condition impaired his ability to file within the limitations period, warranting further

development of the factual record on remand); Bolarinwa, 593 F.3d at 232 (instructing the district -

petiti

Defendants rely on various cases from other federal district courts that found COVID- related issues insufficient to warrant equitable tolling of limitations periods. See, e.g., Hines v. United States, No. 20-CV-10064 (CS), 2021 WL 2456679, at *2 (S.D.N.Y. June 16, 2021) (declining to equitably toll a limitations period, despite pandemic-related restriction on the federal COVID-19 pandemic could conceivably present extraordinary circumstances, [a habeas] petitioner

cannot meet his burden of establishing that a court should apply the doctrine of equitable tolling simply by making a passing reference to the pandemic or the resulting lockdown. internal quotation marks omitted)); United States v. Henry, No. 2:20-cv-1821, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (declining to equitably toll limitations period where the federal

certificate of appealability denied, 2021

WL 3669374 (3d Cir. June 3, 2021).

While perhaps instructive on the ultimate question of whether Plaintiff can demonstrate that equitable tolling is warranted, these cases do not mandate dismissal at this early stage of the case. In most of these cases, the litigants seeking equitable tolling raised no contention that they personally suffered from a debilitating COVID diagnosis during the relevant time frame or were prevented from complying with the limitations period because of a mandated quarantine. See also,

e.g., Rodriguez v. Hudson Valley Chrysler, No. 20-cv-9646 (NSR), 2021 WL 5910173, at *3 (S.D.N.Y. Dec. 14, 2021) (noting that the Title VII plaintiff received his right-to-sue notice at the

hin the limitations period); Hood v. Cath. Health Sys., Inc., No. 1:20-cv-673, 2020 WL 8371205, at *7 (W.D.N.Y. Sept. 28, 2020) (declining to equitably or the in- in-person work restrictions . . . made it impossible to co cases in which COVID-19 was asserted generally as reason for late filing, further development of

extraordinary circumstance warranting equitable tolling. See id.; Brown, 287 F.3d at 60.

quarantines from December of 2020 to early March of 2021, when he filed his complaint, calls for further factual development. ations that he suffered from other severe mental illnesses throughout the limitations period, which may also inform the question of equitable tolling following clarification and evidentiary support. 1

n this ground, without prejudice to reiterate the affirmative defense of untimeliness after further development of the record. As noted below, the Court will phase discovery and dispositive motions on the issues preliminary to

1 Defendants also assert that, because Plaintiff filed a complaint in February of 2019 with the Connecticut Commission on Human Rights and Opportunities regarding the incident that is the subject of his federal complaint, he was capable of filing his federal suit at that time. That issue can be explored during the period of limited discovery the Court is authorizing.

liability specifically, timeliness and exhaustion of administrative remedies. The Court will then set new discovery and dispositive motion deadlines pertaining to liability, if necessary.

III. APPOINTMENT OF PRO BONO COUNSEL Plaintiff also seeks appointment of pro bono counsel to help prosecute his claims. ECF Nos. 37, 40. Civil litigants generally do not have a constitutional right to the appointment of counsel. Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 69 (2d Cir. 2011). However, federal district courts have discretion to appoint pro bono counsel. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) tation omitted)); 28 U.S.C. § 1915(e)(1) (permitting district court to appoint pro bono counsel for indigent litigant); D. Conn. L.R. 83.10 (explaining the procedures for appointment of pro bono counsel in this district). The Second Circuit has cautioned against Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).

In assessing whether to appoint pro bono counsel Id. at 61; see also Cooper, 877

F.2d at 171. If the claims are sufficiently meritorious, the court should then consider other factors bearing on the ne factual issues of the case, whether conflicting evidence implicating the need for cross-examination

the case, and the complexity of the legal issues involved. See Hodge, 802 F.2d at 61 62.

The Court is convinced that to warrant appointment of pro bono counsel for the purpose of developing the factual record

regarding the circumstances that may support a finding of equitable tolling. In particular, the date

of the complaint strongly supports an inference that Plaintiff had been diligently preparing to file his action and that, but for a COVID diagnosis and/or exposure triggering a quarantine period, he would have filed the complaint within the limitations period. As an indigent person currently incarcerated, Plaintiff has a very limited ability to obtain the medical and housing records necessary to substantiate his claim for equitable tolling. Moreover, the possible severity of any COVID diagnosis Plaintiff received during the relevant time period will likely present complex and specialized medical issues. These factors weigh even stronger in favor of appointing pro bono

The Court recognizes that, before an appointment of pro bono counsel for an indigent litigant is considered, the indigent person generally must demonstrate that he tried, but was unable, to secure counsel. Hodge counsel, ECF Nos. 37 and 40, do not indicate whether he has attempted to secure counsel.

However, Pl presently experiences severe distress associated with his history of mental illness, post-traumatic stress disorder, and addiction. Given the likely tigation necessary to litigate the seeking out counsel and presenting the case, the Court is convinced that in this case. See id. at 61 62.

Accordingly, the Court will appoint pro bono counsel for the purpose of conducting discovery and briefing pertaining to the issues preliminary to liability. Pro bono counsel shall participate in developing the factual record regarding the circumstances that may support a finding of equitable tolling.

In addition, in an effort to streamline the case during pro bono counsel for both parties shall conduct discovery as to whether Plaintiff has exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). If Defendants believe that there is a sound basis to assert that the matter should be dismissed for failure to exhaust administrative remedies, or because equitable tolling is unavailable after further factual development, Defendants may file a preliminary motion for summary judgment on either or both of those grounds by July 22, 2022. The filing of a preliminary motion for summary judgment on these issues will not preclude the filing of a motion for summary judgment on the merits of the case at a later date, if the case proceeds following resolution of timeliness and exhaustion issues.

Pro bono ary judgment motion brought on exhaustion and timeliness grounds, and shall include filing a response to any summary judgment motion pursued by Defendants on these issues. After resolution of the timeliness and exhaustion issues, the Court will reevaluate whether continued involvement of pro bono counsel is warranted.

IV. CONCLUSION Because Plaintiff plausibly suggests that extraordinary circumstances prevented him from , is denied without prejudice ECF No. 37, is granted for the purpose of conducting preliminary discovery and responding to preliminary dispositive motions as discussed herein. Pla counsel, ECF No. 40, is denied as moot.

In addition, the Court vacates the deadlines set forth in its Initial Review Order, ECF No. 11, and sets the following schedule.

By May 16, 2022, Defendants shall file their answer to the complaint. By May 16, 2022, or within three weeks from the date of pro bono appointment, whichever is later, appointed pro bono counsel shall file a notice

confirming that he or she has met with Plaintiff and conferred with him regarding the next stage of the case. By July 25, 2022, the parties shall complete limited preliminary discovery pertaining to

the issues of (1) equitable tolling and (2) exhaustion of administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). By August 25, 2022, if warranted, Defendants may file a preliminary summary judgment

motion regarding the affirmative defenses of untimeliness/lack of a basis for equitable tolling and exhaustion of administrative remedies, without waiving the ability to file a later summary judgment motion on other defenses shall be filed in accordance with the timeline set forth in Local Rule 7. Following resolution of this preliminary dispositive motion, the Court will set a deadline for the liability phase of discovery and the briefing of such dispositive motions, if necessary. The Court will also consider whether appointment of pro bono counsel remains warranted. In addition, the parties shall file two joint status reports.

o First, by July 5, 2022, the parties shall file a joint status report: (1) informing the

Court of the status of discovery, (2) providing a detailed explanation of discovery yet to be completed, and (3) indicating whether either party desires a referral to a U.S. Magistrate Judge for a settlement conference.

o Second, by August 4, 2022, the parties shall file a joint status report: (1) confirming

that discovery on the preliminary issues of timeliness and exhaustion is complete, (2) indicating whether, and on which grounds, Defendants intend to file a preliminary dispositive motion, (3) indicating whether either party desires a referral to a U.S. Magistrate Judge for a settlement conference, and (4) indicating whether inted pro bono counsel would be willing to continue representing

SO ORDERED at Hartford, Connecticut, this 22nd day of April, 2022.

/s/ Sarala V. Nagala SARALA V. NAGALA UNITED STATES DISTRICT JUDGE

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT ANGEL RIVERA, Plaintiff, v. MUCHA, BRYANT, ADAMS, Defendants.

3:21-CV-316 (SVN)

April 22, 2022 AND MOTIONS TO APPOINT COUNSEL

Sarala V. Nagala, United States District Judge. Plaintiff Angel Rivera has brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights by Defendants Lieutenant Mucha, Correction Officer Bryant, and Correction Officer Adams, who are all employed by the Connecticut Department of Correction In addition, Plaintiff has filed two motions requesting an appointment of pro bono counsel. Defendants have moved to dismiss the complaint, contending that it is barred by the applicable statute of limitations. motion to dismiss without prejudice to allow further development of the factual record on the

issues of equitable an appointment of pro bono counsel for the purpose of this further factual development.

I. FACTUAL BACKGROUND er, ECF No. 11, set motion to dismiss, in detail. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In

summary, during the relevant time period, Plaintiff was incarcerated at Cheshire Correctional

his clothes pursuant to strip search protocol. Id. at 2. Mucha then ordered Bryant and Adams to place Plaintiff in handcuffs and a black box, the type of restraints used when transporting an inmate to court. Id. Bryant and Adams restrained Plaintiff as instructed without first permitting him to put his clothes on. Id. at 2 3. While applying the restraints, Bryant and Adams came into contact been suffering from anxiety and post-traumatic stress order before this incident, thereafter

experienced nightmares and exacerbated symptoms of his mental illnesses. Id. at 7 8.

January 25, 2021. Id. at 4. On the final pa perjury that he had read the complaint and that the information contained therein was true and

correct, and his signature is dated January 26, 2021. Id. March 10, 2021. Id. at 1. At the time of filing his complaint, Plaintiff had been released from

custody, although he has since been reincarcerated.

two claims pursuant to 42 U.S.C. § 1983: first, that Mucha, Bryant, and Adams violated his Fourth Amendment right of bodily privacy by placing Plaintiff in the transport restraints without permitting him to put his clothes on; and second, that Mucha, Bryant, and Adams sexually abused him in violation of the Eighth Amendment by unnecessarily touching his genitals for an excessive period of time while applying the transport restraints. ECF No. 11 at 7 9; ECF No. 1 at 7. The Court permitted these claims to proceed and dismissed all others, including all claims against ECF No. 11 at 6, 12.

Thereafter, the remaining Defendants moved to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 15. They contend that the three-year limitations period

In opposition, Plaintiff notes that he prepared his complaint before the expiration of the limitations period and essentially urges the Court to conclude, for various reasons including periods of quarantine resulting from COVID-19 and his own his diagnosis with COVID-19, that the period was equitably tolled from then until the date it was filed. See ECF Nos. 18, 31. He also asks the Court to appoint pro bono counsel to help prosecute his claims. ECF Nos. 37, 40.

II. TIMELINESS

A. Legal Standard Where the dates in a complaint show that an action is barred by a statute of limitations, a defendant may raise the affirmative defense in a pre-answer motion to dismiss. Such a motion is properly treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted , 869 F.2d 160, 162 (2d Cir. 1989). To must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 556). Cohen v. S.A.C. Trading Corp., 711

F.3d 353, 359 (2d Cir. 2013) (citation omitted).

contains no explicit statute of limitations. actions brought under § 1983, the courts must borrow a state statute of limitations. . . . The statute to be borrowed is the one that is most appropriate . . . or most analogous . . . so long as it is not Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994)

(citations and internal quotation marks omitted). Courts in this district generally subject § 1983 claims to the three-year limitations period of Connecticut General Statutes § 52-577, which pertains to general tort claims not specifically covered by different limitations provisions. Id. at 134.

Accordingly, -year limitations period provided by § 52-577. See id. (noting that § 52-577 encompasses a variety of injuries to personal interests). As noted, the incident is alleged to have occurred on January 28, 2018. ECF No. 1 at 6. Plaintiff had a complete cause of action on that date, which prompted the limitations period to begin. See Wallace v. Kato, 549 U.S. 384, 388 (2007) (holding that, under federal law, a claim Singleton v. City of New

York, 632 F.2 that point in time when the plaintiff knows or has reason to know of the injury which is the basis

hus, the limitations period expired on January 28, 2021, three years after the date of the alleged incident. Because Plaintiff filed his complaint on March 10, 2021, approximately six weeks after the limitations period expired, his claims are untimely.

However, his rights

diligently but some extraordinary circumstance prevents him from bringing a timely Lozano v. Montoya Alvarez, 572 U.S. 1, 10 (2014). equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his

rights diligently, and (2) that some extraordinary circums Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). hile equitable tolling is warranted only in rare and

exceptional circumstances . . . Harper v. Ercole, 648 F.3d 132, 136 (2d Cir. 2011) (citations and internal quotation marks omitted). -by-

specific circumstances, often hard to predict in advance, could warrant special treatment in an Id. (quoting Holland v. Florida, 560 U.S. 631, 650 (2010)).

pursuit of his claim throughout the period he seeks to toll. . . . If such a showing is not made,

equitable tolling should be denied or at least circumscribed to the period for which diligence and Harper, 648 F.3d at 139 (citations and internal quotation marks omitted); see also Adkins v. Warden, 585 F. S equitably tolled but This standard

does not call Harper, 648 F.3d

at 138 39 (citations and internal quotation marks omitted).

The second element Id. Id. ical

Id. (citing Bolarinwa v. Williams, 593 F.3d 226, 231 32 (2d Cir. 2010) (holding that a mental illness may equitably toll the limitations period to file a federal habeas petition), and Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d Cir. 2002) (holding that a mental illness may equitably toll the

limitations period to file a discrimination claim)). However, with respect to a medical condition or other extraordinary circumstance, the litigant must demonstrate that the extraordinary caused Id. at 137 (emphasis added) (citing Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) equires the [litigant] to demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of his filing, a demonstration that cannot be made if the [litigant], acting with reasonable diligence, could have filed on time notwithstanding . With respect to a medical condition, this requires the litigant to functiBolarinwa, 593 F.3d at 232

(citation and internal quotation marks omitted).

B. Discussion -specific inquiry called for in these circumstances is most and, thus, that . See id. Plaintiff contends [he] filed on March 10, 2021 was due to Covid-19[.] ECF No. 18 at 5. Specifically, Plaintiff

represents that, while released from state custody, he contracted the COVID-19 virus, for a second time, sometime during December of 2020 or January of 2021, around when the limitations period expired. Id.; see also ECF No. 31 at 3 4 -19 and that, sometime during February of 2021, while still feeling unwell from his COVID diagnosis, he

was placed in a housing program that had a COVID outbreak Plaintiff asserts, he was required to quarantine again until early March of 2021.

These contentions raise an inference that, throughout the final weeks of the limitations period and extending several more weeks beyond the expiration of the period, Plaintiff faced a severe obstacle outside his control due to a symptomatic COVID-19 illness that adversely affected his capacity to pursue his rights, or a series of enforced quarantines that prevented him from mailing or delivering his prepared complaint to the courthouse, or both. Such circumstances could fall within the category of mental and physical illnesses that warrant equitable tolling. See Bolarinwa, 593 F.3d at 232.

The issues of whether such circumstances in fact occurred and the extent to which they ions period present factual questions not properly resolved on a motion to dismiss. See , No. 30-CV-4834 (JMF), 2021 WL 3408587, at *3 4 (S.D.N.Y. Aug. 4, 2021) ( Court cannot say as a matter of law that equitable tolling is unavailable because it turns on factual

, 507 F. Supp. 3d a plaintiff raises an equitable tolling argument in response to a motion to dismiss on statute of limitations grounds, the motion to dismiss should be denied unless all assertions of the complaint, as read with required liberality, would not permit the plaintiffs to prove that this statute was tolled

Accordingly, the Court will deny the motion to dismiss to permit further development of the factual record. See Brown the limited record medical condition impaired his ability to file within the limitations period, warranting further

development of the factual record on remand); Bolarinwa, 593 F.3d at 232 (instructing the district -

petiti

Defendants rely on various cases from other federal district courts that found COVID- related issues insufficient to warrant equitable tolling of limitations periods. See, e.g., Hines v. United States, No. 20-CV-10064 (CS), 2021 WL 2456679, at *2 (S.D.N.Y. June 16, 2021) (declining to equitably toll a limitations period, despite pandemic-related restriction on the federal COVID-19 pandemic could conceivably present extraordinary circumstances, [a habeas] petitioner

cannot meet his burden of establishing that a court should apply the doctrine of equitable tolling simply by making a passing reference to the pandemic or the resulting lockdown. internal quotation marks omitted)); United States v. Henry, No. 2:20-cv-1821, 2020 WL 7332657, at *4 (W.D. Pa. Dec. 14, 2020) (declining to equitably toll limitations period where the federal

certificate of appealability denied, 2021

WL 3669374 (3d Cir. June 3, 2021).

While perhaps instructive on the ultimate question of whether Plaintiff can demonstrate that equitable tolling is warranted, these cases do not mandate dismissal at this early stage of the case. In most of these cases, the litigants seeking equitable tolling raised no contention that they personally suffered from a debilitating COVID diagnosis during the relevant time frame or were prevented from complying with the limitations period because of a mandated quarantine. See also,

e.g., Rodriguez v. Hudson Valley Chrysler, No. 20-cv-9646 (NSR), 2021 WL 5910173, at *3 (S.D.N.Y. Dec. 14, 2021) (noting that the Title VII plaintiff received his right-to-sue notice at the

hin the limitations period); Hood v. Cath. Health Sys., Inc., No. 1:20-cv-673, 2020 WL 8371205, at *7 (W.D.N.Y. Sept. 28, 2020) (declining to equitably or the in- in-person work restrictions . . . made it impossible to co cases in which COVID-19 was asserted generally as reason for late filing, further development of

extraordinary circumstance warranting equitable tolling. See id.; Brown, 287 F.3d at 60.

quarantines from December of 2020 to early March of 2021, when he filed his complaint, calls for further factual development. ations that he suffered from other severe mental illnesses throughout the limitations period, which may also inform the question of equitable tolling following clarification and evidentiary support. 1

n this ground, without prejudice to reiterate the affirmative defense of untimeliness after further development of the record. As noted below, the Court will phase discovery and dispositive motions on the issues preliminary to

1 Defendants also assert that, because Plaintiff filed a complaint in February of 2019 with the Connecticut Commission on Human Rights and Opportunities regarding the incident that is the subject of his federal complaint, he was capable of filing his federal suit at that time. That issue can be explored during the period of limited discovery the Court is authorizing.

liability specifically, timeliness and exhaustion of administrative remedies. The Court will then set new discovery and dispositive motion deadlines pertaining to liability, if necessary.

III. APPOINTMENT OF PRO BONO COUNSEL Plaintiff also seeks appointment of pro bono counsel to help prosecute his claims. ECF Nos. 37, 40. Civil litigants generally do not have a constitutional right to the appointment of counsel. Leftridge v. Conn. State Trooper Officer No. 1283, 640 F.3d 62, 68 69 (2d Cir. 2011). However, federal district courts have discretion to appoint pro bono counsel. Hodge v. Police Officers, 802 F.2d 58, 60 (2d Cir. 1986) tation omitted)); 28 U.S.C. § 1915(e)(1) (permitting district court to appoint pro bono counsel for indigent litigant); D. Conn. L.R. 83.10 (explaining the procedures for appointment of pro bono counsel in this district). The Second Circuit has cautioned against Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989).

In assessing whether to appoint pro bono counsel Id. at 61; see also Cooper, 877

F.2d at 171. If the claims are sufficiently meritorious, the court should then consider other factors bearing on the ne factual issues of the case, whether conflicting evidence implicating the need for cross-examination

the case, and the complexity of the legal issues involved. See Hodge, 802 F.2d at 61 62.

The Court is convinced that to warrant appointment of pro bono counsel for the purpose of developing the factual record

regarding the circumstances that may support a finding of equitable tolling. In particular, the date

of the complaint strongly supports an inference that Plaintiff had been diligently preparing to file his action and that, but for a COVID diagnosis and/or exposure triggering a quarantine period, he would have filed the complaint within the limitations period. As an indigent person currently incarcerated, Plaintiff has a very limited ability to obtain the medical and housing records necessary to substantiate his claim for equitable tolling. Moreover, the possible severity of any COVID diagnosis Plaintiff received during the relevant time period will likely present complex and specialized medical issues. These factors weigh even stronger in favor of appointing pro bono

The Court recognizes that, before an appointment of pro bono counsel for an indigent litigant is considered, the indigent person generally must demonstrate that he tried, but was unable, to secure counsel. Hodge counsel, ECF Nos. 37 and 40, do not indicate whether he has attempted to secure counsel.

However, Pl presently experiences severe distress associated with his history of mental illness, post-traumatic stress disorder, and addiction. Given the likely tigation necessary to litigate the seeking out counsel and presenting the case, the Court is convinced that in this case. See id. at 61 62.

Accordingly, the Court will appoint pro bono counsel for the purpose of conducting discovery and briefing pertaining to the issues preliminary to liability. Pro bono counsel shall participate in developing the factual record regarding the circumstances that may support a finding of equitable tolling.

In addition, in an effort to streamline the case during pro bono counsel for both parties shall conduct discovery as to whether Plaintiff has exhausted his administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). If Defendants believe that there is a sound basis to assert that the matter should be dismissed for failure to exhaust administrative remedies, or because equitable tolling is unavailable after further factual development, Defendants may file a preliminary motion for summary judgment on either or both of those grounds by July 22, 2022. The filing of a preliminary motion for summary judgment on these issues will not preclude the filing of a motion for summary judgment on the merits of the case at a later date, if the case proceeds following resolution of timeliness and exhaustion issues.

Pro bono ary judgment motion brought on exhaustion and timeliness grounds, and shall include filing a response to any summary judgment motion pursued by Defendants on these issues. After resolution of the timeliness and exhaustion issues, the Court will reevaluate whether continued involvement of pro bono counsel is warranted.

IV. CONCLUSION Because Plaintiff plausibly suggests that extraordinary circumstances prevented him from , is denied without prejudice ECF No. 37, is granted for the purpose of conducting preliminary discovery and responding to preliminary dispositive motions as discussed herein. Pla counsel, ECF No. 40, is denied as moot.

In addition, the Court vacates the deadlines set forth in its Initial Review Order, ECF No. 11, and sets the following schedule.

By May 16, 2022, Defendants shall file their answer to the complaint. By May 16, 2022, or within three weeks from the date of pro bono appointment, whichever is later, appointed pro bono counsel shall file a notice

confirming that he or she has met with Plaintiff and conferred with him regarding the next stage of the case. By July 25, 2022, the parties shall complete limited preliminary discovery pertaining to

the issues of (1) equitable tolling and (2) exhaustion of administrative remedies under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). By August 25, 2022, if warranted, Defendants may file a preliminary summary judgment

motion regarding the affirmative defenses of untimeliness/lack of a basis for equitable tolling and exhaustion of administrative remedies, without waiving the ability to file a later summary judgment motion on other defenses shall be filed in accordance with the timeline set forth in Local Rule 7. Following resolution of this preliminary dispositive motion, the Court will set a deadline for the liability phase of discovery and the briefing of such dispositive motions, if necessary. The Court will also consider whether appointment of pro bono counsel remains warranted. In addition, the parties shall file two joint status reports.

o First, by July 5, 2022, the parties shall file a joint status report: (1) informing the

Court of the status of discovery, (2) providing a detailed explanation of discovery yet to be completed, and (3) indicating whether either party desires a referral to a U.S. Magistrate Judge for a settlement conference.

o Second, by August 4, 2022, the parties shall file a joint status report: (1) confirming

that discovery on the preliminary issues of timeliness and exhaustion is complete, (2) indicating whether, and on which grounds, Defendants intend to file a preliminary dispositive motion, (3) indicating whether either party desires a referral to a U.S. Magistrate Judge for a settlement conference, and (4) indicating whether inted pro bono counsel would be willing to continue representing

SO ORDERED at Hartford, Connecticut, this 22nd day of April, 2022.

/s/ Sarala V. Nagala SARALA V. NAGALA UNITED STATES DISTRICT JUDGE

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