MOSES v. WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS (2018)

SUMMARY ORDER

Appellant Manuel Moses, an attorney proceeding pro se as the administrator for the estate of Zoran Teodorovic, filed this lawsuit under 42 U.S.C. § 1983 against the Westchester County Department of Corrections and Westchester County (together, the “County Defendants”), and Paul M. Coté, pro se,¹ a former corrections officer at the Westchester County Jail, alleging that Coté violated Teodorovic's constitutional rights by using excessive force that resulted in Teodorovic's death, and that the County Defendants are liable under Monell v. Department of Social Services., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The District Court (Ramos, J.) concluded that the complaint was time barred, that no extraordinary circumstances merited equitable tolling, and that Moses's Monell claim failed on the merits. We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, to which we refer only as necessary to explain our decision to affirm.

The statute of limitations for Moses's Section 1983 claims, which arise in New York, is three years, Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009), and those claims accrued when he knew “or ha[d] reason to know of the injury which is the basis of his action,” Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013) (quotation marks omitted). Moses sought to toll the limitations period under the New York law doctrine of equitable tolling, which “may be invoked to defeat a statute of limitations defense when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action.” Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quotation marks omitted). But we have recognized that equitable tolling applies in “rare and exceptional circumstances.” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quotation marks omitted). The plaintiff “bears the burden of showing that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling ․ claim have ceased to be operational.” Abbas, 480 F.3d at 642 (quotation marks omitted).

We agree with the District Court that Moses's action was time barred and that the circumstances did not warrant equitable tolling. On summary judgment, Moses presented no record evidence that “fraud, misrepresentations or deception,” id., prevented representatives of Teodorovic's estate from pursuing a timely claim. The excessive force occurred in 2000; Teodorovic listed Stephanie Bentley, his stepmother, as his emergency contact, and she was informed of Teodorovic's injuries soon after he sustained them; Bentley wrote Mirka Furst (Teodorovic's sister) about his death in 2002; and as early as 2004 Furst started the process of retaining a lawyer. There was also evidence that the Department of Justice arranged for Furst to travel to Coté’s trial in 2006 and that Teodorovic's family then hired a lawyer, who attempted to file a late notice of claim in State court in January 2007. Nothing that followed after January 2007 rises to the level of an “extraordinary circumstance[ ]” justifying equitable tolling. See Jastremski, 430 F.3d at 564. When the New York State Court denied the motion to file a late notice of claim, the family's lawyer opted not to pursue the claims. The lawyer's strategic choice here does not justify equitable tolling. See South v. Saab Cars USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994). Even if we were to conclude that the statute of limitations started running in April 2007, when the State court denied permission to file a late claim, Moses's complaint still would not have been timely because it was filed more than three years later, in December 2010. Under these circumstances, we cannot say that the District Court abused its discretion by denying equitable tolling.

Because we agree that Moses's suit was untimely and that the District Court did not abuse its discretion by denying equitable tolling, we need not and do not address the District Court's alternative holding dismissing the Monell claim against the County Defendants on the merits.

We have considered all of Moses's remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is AFFIRMED.

FOOTNOTES

1.   Although Coté did not appear or submit briefs on appeal, we construe the argument of the County Defendants as to the timeliness of the lawsuit in this case to apply equally to Coté.