11-322-pr(L)
Melendez v. Wilson



                              UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to summary orders 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 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
Richard C. Lee United States Courthouse, 141 Church Street, in the City of New Haven,
Connecticut, on the 27th day of April, two thousand twelve.


PRESENT:
            GUIDO CALABRESI,
            JOSÉ A. CABRANES,
            DENNY CHIN,
                  Circuit Judges.
_____________________________________
MICHAEL MELENDEZ,

                          Plaintiff-Appellant,

                     v.                                                 11-322-pr(L),
                                                                        11-1699-pr(con)
CHARLES GREINER, et al.,

                          Defendants,

TERRANCE L. WILSON, et al.,

                  Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:                         Michael Melendez, pro se, Collins, NY.

FOR DEFENDANTS -APPELLEES:                       David Lawrence III, Assistant Solicitor General
                                                 (Barbara D. Underwood, Solicitor General, Michael S.
                                                 Belohlavek, Senior Counsel, of counsel), for Eric T.
                                                 Schneiderman, Attorney General of the State of New
                                                 York, New York, NY.
        Appeal from a judgment and order of the United States District Court for the Southern
District of New York (P. Kevin Castel, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment and order of the district court are AFFIRMED.

         Appellant Michael Melendez appeals the District Court’s dismissal of several claims in his 42
U.S.C. § 1983 complaint as time-barred, dismissal of several defendants based on the lack of timely
service, and denial of two Federal Rule of Civil Procedure 60(b) motions for reconsideration. 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 dismissal of a complaint for failure to state a claim upon
which relief can be granted, Fed. R. Civ. P. 12(b)(6), accepting all well-pleaded, factual allegations in
the complaint as true and drawing all inferences in favor of the plaintiff, see, e.g., Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555–56 (2007). To survive a motion to dismiss brought pursuant to
Rule 12(b)(6), the pleadings must contain “enough facts to state a claim to relief that is plausible on
its face.” Id. at 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that a claim will have
“facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged”). A complaint “that
offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do,’ . . . [n]or does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555, 557).

         The denial of a Rule 60(b) motion is reviewed for “abuse of discretion.” See Johnson v. Univ.
of Rochester Med. Ctr., 642 F.3d 121, 125 (2d Cir. 2011); see also Sims v. Blot, 534 F.3d 117, 132 (2d Cir.
2008) (explaining the term of art “abuse of discretion”). A district court abuses its discretion “when
(1) its decision rests on an error of law or a clearly erroneous factual finding; or (2) cannot be found
within the range of permissible decisions.” Johnson, 642 F.3d at 125.

        The applicable statute of limitations for a § 1983 action arising in New York State is three
years. See Shomo v. City of N.Y., 579 F.3d 176, 181 (2d Cir. 2009). Although the question of when a
§ 1983 action accrues is determined by federal law, see Wallace v. Kato, 549 U.S. 384, 388 (2007),
federal courts borrow a state’s “tolling rules,” unless applying the state’s tolling rules would defeat
the goals of the federal statute at issue. See Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007).

         Melendez originally argued in his opposition to the defendants’ motion to dismiss that the
three-year statute of limitations should be tolled based on the New York doctrine of “duress
tolling.” Under the doctrine of duress tolling, the limitations period is tolled where the underlying
tort has duress as an element of the offense, and the tortious conduct “persist[s] as a ‘continuous

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wrong.’” Overall v. Estate of Klotz, 52 F.3d 398, 404-05 (2d Cir. 1995). Melendez also argued that the
defendants should be equitably estopped from asserting a statute of limitations defense based on the
defendants’ alleged ongoing misconduct, which purportedly prevented Melendez from filing suit for
over twelve months.

        An independent review of the record and relevant case law reveals that the District Court
properly found that neither duress tolling nor equitable estoppel serves to preserve Melendez’s
claims. To the extent Melendez appeals the District Court’s dismissal of his claims as time-barred
based on the foregoing arguments, we affirm for substantially the reasons stated by the District
Court in its September 12, 2006 decision. See Melendez v. Wilson, No. 04 Civ. 0073, 2006 WL
2621083 (S.D.N.Y. Sept. 12, 2006). Given our determination that the District Court did not err in
dismissing Melendez’s claims as time-barred, it is not necessary to reach Melendez’s arguments
regarding the propriety of the District Court’s dismissal of several defendants based on the lack of
timely service, because, even assuming arguendo that the District Court had erred in dismissing the
defendants, the defendants’ reinstatement would not change the time-barred nature of Melendez’s
claims. See Abbas, 480 F.3d at 642.

        Melendez’s arguments on appeal, which are substantively identical to the arguments raised in
his two motions for reconsideration before the District Court, are unavailing. Melendez argues that
the three-year statute of limitations should have been tolled during the pendency of various
administrative investigations arising out of his filing of “informal” grievances regarding the events
underlying his claims, and that the purportedly newly-discovered evidence he had presented in
support of this tolling argument warranted reconsideration of the District Court’s September 12,
2006 decision.

         This Court has recently held that the statute of limitations for a § 1983 action “must be
tolled while a prisoner completes the mandatory exhaustion process” set out in 42 U.S.C. § 1997e(a).
Gonzalez v. Hasty, 651 F.3d 318, 323-24 (2d Cir. 2011) (internal citation and quotation marks
omitted). The statute of limitations, however, is only tolled during the period when a prisoner is
“actively exhausting” his administrative remedies. See id. at 322 n.2. The record reflects that
Melendez did not “actively” exhaust his administrative remedies. It follows that the statute of
limitations was not tolled in this case. Moreover, the “newly-discovered evidence” Melendez
provided in support of his second motion for reconsideration does not affect the preceding analysis.
 Accordingly, the District Court did not err in denying Melendez’s second motion for
reconsideration.




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                                       CONCLUSION
       We have considered all of Melendez’s arguments, and find them to be without merit.
Accordingly, the judgment and order of the District Court is AFFIRMED.



                                            FOR THE COURT:
                                            Catherine O’Hagan Wolfe, Clerk




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