Filed: Oct. 11, 2018
Latest Update: Mar. 03, 2020
Summary: 17-3323 Moses v. Westchester County Department of Corrections UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WIT
Summary: 17-3323 Moses v. Westchester County Department of Corrections UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH..
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17‐3323
Moses v. Westchester County Department of Corrections
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION
TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 11th day of October, two thousand eighteen.
4
5 PRESENT: JOHN M. WALKER, JR.,
6 RAYMOND J. LOHIER, JR.,
7 Circuit Judges,
8 WILLIAM H. PAULEY III,*
9 District Judge.
10 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
11 MANUEL MOSES, AS ADMINISTRATOR D.B.N.
12 of the Goods, Chattels and Credits which were of
13 Zoran Teodorovic, Deceased,
14
15 Plaintiff‐Appellant,
16
17 v. 17‐3323‐cv
18
* Judge William H. Pauley III, of the United States District Court for the Southern
District of New York, sitting by designation.
1 WESTCHESTER COUNTY DEPARTMENT OF
2 CORRECTIONS, WESTCHESTER COUNTY, and
3 PAUL M. COTÉ,
4
5 Defendants‐Appellees.
6 ‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐‐
7 FOR PLAINTIFF‐APPELLANT: MANUEL BRAD MOSES, pro se,
8 New York, NY.
9
10 FOR DEFENDANTS‐APPELLEES KIMBERLY A. SANFORD (Urs
11 WESTCHESTER COUNTY Broderick Furrer, Harriton
12 DEPARTMENT OF CORRECTIONS & Furrer, LLP, Armonk, NY;
13 and WESTCHESTER COUNTY: Justin R. Adin, Westchester
14 County Attorney’s Office,
15 White Plains, NY, on the brief)
16 Harriton & Furrer, LLP,
17 Armonk, NY.
18
19 FOR DEFENDANT‐APPELLEE Paul M. Coté, pro se, Mahopac,
20 PAUL M. COTÉ: NY.
21 Appeal from a judgment of the United States District Court for the
22 Southern District of New York (Edgardo Ramos, Judge).
23 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
24 AND DECREED that the judgment of the District Court is AFFIRMED.
25 Appellant Manuel Moses, an attorney proceeding pro se as the
26 administrator for the estate of Zoran Teodorovic, filed this lawsuit under 42
27 U.S.C. § 1983 against the Westchester County Department of Corrections and
2
1 Westchester County (together, the “County Defendants”), and Paul M. Coté, pro
2 se,1 a former corrections officer at the Westchester County Jail, alleging that Coté
3 violated Teodorovic’s constitutional rights by using excessive force that resulted
4 in Teodorovic’s death, and that the County Defendants are liable under Monell v.
5 Department of Social Services., 436 U.S. 658 (1978). The District Court (Ramos,
6 J.) concluded that the complaint was time barred, that no extraordinary
7 circumstances merited equitable tolling, and that Moses’s Monell claim failed on
8 the merits. We assume the parties’ familiarity with the underlying facts and the
9 record of prior proceedings, to which we refer only as necessary to explain our
10 decision to affirm.
11 The statute of limitations for Moses’s Section 1983 claims, which arise in
12 New York, is three years, Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.
13 2009), and those claims accrued when he knew “or ha[d] reason to know of the
14 injury which is the basis of his action,” Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir.
15 2013) (quotation marks omitted). Moses sought to toll the limitations period
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.
3
1 under the New York law doctrine of equitable tolling, which “may be invoked to
2 defeat a statute of limitations defense when the plaintiff was induced by fraud,
3 misrepresentations or deception to refrain from filing a timely action.” Abbas v.
4 Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (quotation marks omitted). But we have
5 recognized that equitable tolling applies in “rare and exceptional circumstances.”
6 Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (quotation marks omitted).
7 The plaintiff “bears the burden of showing that the action was brought within a
8 reasonable period of time after the facts giving rise to the equitable tolling . . .
9 claim have ceased to be operational.” Abbas, 480 F.3d at 642 (quotation marks
10 omitted).
11 We agree with the District Court that Moses’s action was time barred and
12 that the circumstances did not warrant equitable tolling. On summary
13 judgment, Moses presented no record evidence that “fraud, misrepresentations or
14 deception,” id., prevented representatives of Teodorovic’s estate from pursuing a
15 timely claim. The excessive force occurred in 2000; Teodorovic listed Stephanie
16 Bentley, his stepmother, as his emergency contact, and she was informed of
17 Teodorovic’s injuries soon after he sustained them; Bentley wrote Mirka Furst
4
1 (Teodorovic’s sister) about his death in 2002; and as early as 2004 Furst started the
2 process of retaining a lawyer. There was also evidence that the Department of
3 Justice arranged for Furst to travel to Coté’s trial in 2006 and that Teodorovic’s
4 family then hired a lawyer, who attempted to file a late notice of claim in State
5 court in January 2007. Nothing that followed after January 2007 rises to the level
6 of an “extraordinary circumstance[]” justifying equitable tolling. See Jastremski,
7 430 F.3d at 564. When the New York State Court denied the motion to file a late
8 notice of claim, the family’s lawyer opted not to pursue the claims. The lawyer’s
9 strategic choice here does not justify equitable tolling. See South v. Saab Cars
10 USA, Inc., 28 F.3d 9, 12 (2d Cir. 1994). Even if we were to conclude that the
11 statute of limitations started running in April 2007, when the State court denied
12 permission to file a late claim, Moses’s complaint still would not have been timely
13 because it was filed more than three years later, in December 2010. Under these
14 circumstances, we cannot say that the District Court abused its discretion by
15 denying equitable tolling.
16 Because we agree that Moses’s suit was untimely and that the District
17 Court did not abuse its discretion by denying equitable tolling, we need not and
5
1 do not address the District Court’s alternative holding dismissing the Monell
2 claim against the County Defendants on the merits.
3 We have considered all of Moses’s remaining arguments and conclude that
4 they are without merit. For the foregoing reasons, the judgment of the District
5 Court is AFFIRMED.
6 FOR THE COURT:
7 Catherine O’Hagan Wolfe, Clerk of Court
6
