Hicks v. Moore

12-398-cv
Hicks v. Moore

                 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 “SUMMARY ORDER”).    A PARTY CITING TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 1st day of March, two thousand thirteen.

PRESENT:   RALPH K. WINTER,
           DENNY CHIN,
           CHRISTOPHER F. DRONEY,
                     Circuit Judges.

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DONNELL W. HICKS,
               Plaintiff-Appellant,

                 -v.-                           12-398-cv

PATRICK F. MOORE, THOMAS MURPHY,
MARY PERCESEPE, MICHAEL DUNGAN,
LORRAINE TRACEY, LOUIS MURASSO,
PATRICK HINKLEY, DENNIS LEARY,
ESTATE OF FRED ANDROS,
               Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:       Donnell W. Hicks, pro se,
                               Poughkeepsie, New York.

FOR DEFENDANTS-APPELLEES:      Anna E. Remet, Van DeWater & Van
                               DeWater, LLP, Poughkeepsie, New
                               York.

           Appeal from the United States District Court for the

Southern District of New York (Preska, C.J.).
          UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

          Defendant-appellant Donnell W. Hicks, proceeding pro

se, appeals from the district court's judgment dismissing his

complaint for failure to state a claim for deprivation of rights

under 42 U.S.C. § 1983.   We assume the parties' familiarity with

the underlying facts, the procedural history of the case, and the

issues on appeal.

          We review de novo a district court's sua sponte

dismissal of a complaint pursuant to 28 U.S.C. § 1915(e)(2).

Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir. 2001).   The

complaint need only 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); see also Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009).   Although pro se complaints must meet

the plausibility standard, see Caro v. Weintraub, 618 F.3d 94, 97

(2d Cir. 2010), we also read such complaints with "special

solicitude," Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994) (per
curiam), and "interpret them to raise the strongest arguments

that they suggest," Pabon v. Wright, 459 F.3d 241, 248 (2d Cir.

2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.

1994)).   Furthermore, before dismissing the complaint, the

district court should generally accord a pro se plaintiff an

opportunity to amend his complaint.   See Cuoco v. Moritsugu, 222
F.3d 99, 112 (2d Cir. 2000).




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          Here, the district court acknowledged that Hicks's

section 1983 claim was likely time-barred.    See Wilson v. Garcia,

471 U.S. 261, 275 (1985) (courts borrow state limitations period

for claims under 42 U.S.C. § 1983); N.Y. C.P.L.R. § 214(5)

(three-year statute of limitations for recovering damages in

personal injury).    Nevertheless, the court gave Hicks an

opportunity to amend his complaint to include allegations that

would justify equitably tolling the statute of limitations.      As

amended, the complaint raised fraudulent concealment, delays in

responding to a Freedom of Information Law request made in 2006,

and the continuing-course-of-conduct doctrine to justify

equitable tolling.    Hicks failed, however, to account for the

decade-long delay in filing the complaint since the claim had

first accrued.    Cf. Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.
2000) (a defendant's pro se status is itself insufficient to

merit equitable tolling).    We have independently reviewed the

record and, even liberally construing the amended complaint, we

conclude that the district court properly dismissed Hicks's claim

as time-barred.

          We have considered plaintiff's remaining arguments and

conclude they are without merit.    For the foregoing reasons, we
AFFIRM the order of the district court.

                                FOR THE COURT:
                                Catherine O'Hagan Wolfe, Clerk




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