Joe v. FDNY et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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WILLIE L. JOE,
Plaintiff,
-against-
FIRE DEPARTMENT OF NEW YORK et al.,
Defendants.
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MEMORANDUM & ORDER
24-CV-1205(EK)(SDE)
ERIC KOMITEE, United States District Judge:
Plaintiff Willie Joe filed this action in February
2024, invoking the Court’s diversity jurisdiction under
28 U.S.C. § 1332. 	Compl. ECF No. 1. 	The Court granted his pro
se request to proceed in forma pauperis, but dismissed the
action as time-barred. 	The Court granted plaintiff leave to
file an amended complaint to establish compliance with — or a
basis to equitably toll — the statute of limitations.
Plaintiff has now filed an amended complaint. 	Am.
Compl., ECF No. 8. 	For the reasons stated below, the amended
complaint must be dismissed again on statute-of-limitations
grounds, this time with prejudice.
Background
Plaintiff alleges that on November 1, 2013, an
ambulance hit him while he was crossing a street in Brooklyn.
Compl. 5-6. 	He sued the Fire Department of New York, the City
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of New York, Kevin Simpkin (the driver of the ambulance), and a
Jane Doe (the driver of the car that struck the ambulance). 	In
its prior order, the Court observed that plaintiff’s claim
accrued on November 1, 2013 — the date of the accident. 	Mem. &
Order 4, ECF No. 7. 	Applying New York law, the court explained
that the statute of limitations was thus set to run out on
October 31, 2016, long before plaintiff filed this action. 	Id.
In support of tolling the statute of limitations, the
amended complaint now points to the actions of a lawyer
plaintiff had previously retained to seek redress for the same
injuries. 	Am. Compl. 1. 	Four years after that lawyer filed a
case in state court, a defendant showed his attorney “the video
of the accident,” after which the attorney “said that he was
going to court to have [plaintiff’s] case dismissed.” 	Id. 	His
counsel told the plaintiff “that [he] did not have a case.” 	Id.
Plaintiff also alleges that the doctor who treated him would not
testify in court. 	Id. 	Plaintiff also alleges that since 2019,
he has taken “this case to Appellate court [and] supreme court,”
though he does not explain how. 	Id. at 2 	He also reports that
he filed a complaint against his lawyer. 	Id.
Attached to the amended complaint is the stipulation
of discontinuance with prejudice from the state-court lawsuit.
Id. at 4.
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Standard of Review
A district court must dismiss an in forma pauperis
action that “(i) is frivolous or malicious; (ii) fails to state
a claim on which relief may be granted; or (iii) seeks monetary
relief against a defendant who is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B).
A complaint must 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).1 	A claim is plausible “when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” 	Matson v. Bd. of Educ., 631 F.3d 57,
63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)).
Pro se complaints are “held to less stringent
standards” than pleadings drafted by attorneys, and the Court
will read a pro se complaint liberally and interpret it to raise
the strongest arguments it suggests. 	Erickson v. Pardus, 551
U.S. 89, 94 (2007); Sealed Plaintiff v. Sealed Defendant, 537
F.3d 185, 191 (2d Cir. 2008). 	Still, a pro se plaintiff is not
exempt from “compliance with relevant rules of procedural and
1 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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substantive law.” 	Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
1983).
“Dismissal [under Section 1915] is . . . appropriate
where the existence of an affirmative defense, such as the
statute of limitations, is plain from the plaintiff’s pleading.”
Pratts v. Coombe, 59 F. App’x 392, 393 (2d Cir. 2003); see also
Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995) (dismissal under
Section 1915 appropriate where complaint was “facially time-
barred” and there were “no applicable tolling provisions”).
Discussion
“Under New York law, the doctrine[] of equitable
tolling . . . may be invoked . . . 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). 	“Due diligence on the part of the plaintiff in
bringing an action . . . is an essential element of equitable
relief.” 	Id.
Plaintiff has not articulated a valid basis to
equitably toll the statute of limitations. 	“The dismissal with
prejudice of a lawsuit does not toll the statute of
limitations.” 	Harmon v. Patrolman’s Benev. Ass’n of City of New
York, 199 F. App’x 46, 48 (2d Cir. 2006). 	In Harmon, the Second
Circuit affirmed a district court’s decision not to apply
equitable tolling after a plaintiff sought to bring a lawsuit
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identical to one that had been dismissed several years prior.
Id. 	Additionally, in Moses v. Westchester Cnty. Dep’t of Corr.,
the Second Circuit affirmed a district court’s decision not to
apply equitable tolling after a plaintiff’s lawyer ”opted not to
pursue the claims.” 	739 F. App’x 66, 68 (2d Cir. 2018).
Similarly, the failure to find an attorney who will file a case
is not a basis for tolling. 	Qui Yun Li v. Holder, 352 F. App’x
574, 575-76 (2d Cir. 2009). 	Under these principles, equitable
tolling is inapplicable here.
Plaintiff also alleges he has pursued this case since
2019. 	He references “tak[ing] this case to” appellate courts,
but does not describe how he did so. 	Am. Compl. 2. 	His
argument is also not plausible, as the stipulation to
discontinue his state-court lawsuit with prejudice is dated
November 26, 2018. 	Id. at 4. 	(That stipulation also makes it
highly likely this claim would be barred by res judicata.) 	We
thus cannot conclude that plaintiff has proceeded with the
requisite due diligence.
Plaintiff also references the COVID-19 pandemic,
during which, “the court was closed for 1+ yrs.” 	Id. at 2. 	But
the COVID-19 pandemic struck more than three years after the
statute of limitations expired in this case. 	Additionally,
plaintiff claims that the New York state courts, which first
heard his case were “racis[t] and biased” because they lacked
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African-American judges. 	Id. at 3. 	But such a conclusory
allegation does not entitle him to equitable tolling.
Conclusion
Accordingly, the amended complaint is dismissed with
prejudice for failure to state a claim. 	28 U.S.C. §
1915(e)(2)(B). 	In light of its duty to liberally construe pro
se complaints, the Court has considered whether to grant
plaintiff leave to further amend his complaint but concluded
that further amendment would be futile. 	See Johnson v. Univ. of
Rochester Med. Ctr., 642 F.3d 121, 124–25 (2d Cir. 2011).
The Clerk of Court is respectfully directed to close
this action and mail a copy of this Order to plaintiff, noting
the mailing on the docket. 	The Court certifies pursuant to 28
U.S.C. § 1915(a)(3) that any appeal would not be taken in good
faith and, therefore, in forma pauperis status is denied for the
purpose of any appeal. 	See Coppedge v. United States, 369
U.S.438, 444-45 (1962).
SO ORDERED.
ERIC KOMITEE
United States District Judge
Dated: 	December 22, 2025
Brooklyn, New York
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