Timmons v. Aventiv Corporation et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
RICHARD TIMMONS,
Plaintiff,
v.
AVENTIV CORPORATION, et al.,
Defendants.
9:25-CV-0663
(ECC/CBF)
APPEARANCES:
RICHARD TIMMONS
Plaintiff, pro se
97-A-5810
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562
ELIZABETH C. COOMBE
United States District Judge
OF COUNSEL:
DECISION AND ORDER
I. 	INTRODUCTION
On May 23, 2025, pro se plaintiff Richard Timmons ("plaintiff") commenced this action
by submitting a complaint pursuant to 42 U.S.C. § 1983 ("Section 1983"), the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq., and the Religious Land Use and
Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc-1 et seq. ("RLUIPA"), with an
application to proceed in forma pauperis ("IFP"). Dkt. No. 1 ("Compl."); Dkt. No. 8 ("IFP
Application"). The complaint asserted claims related to plaintiff's confinement in the custody
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of the New York State Department of Corrections and Community Supervision ("DOCCS").
See generally Compl.
By Decision and Order filed on November 19, 2025 (the "November 2025 Order"), this
Court granted plaintiff's IFP Application and reviewed the sufficiency of the complaint in
accordance with 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Dkt. No. 10. On the
basis of that review, the Court dismissed plaintiff's complaint for failure to state a claim. Id.
In light of plaintiff's pro se status, the Court provided plaintiff with an opportunity to amend his
complaint. Id.
Presently before the Court is plaintiff's amended complaint. Dkt. No. 14 ("Am
Compl.").
II. 	SUFFICIENCY OF AMENDED COMPLAINT
A. Legal Standard
The legal standard governing the dismissal of a pleading for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b) was discussed at length in
the November 2025 Order and will not be restated in this Decision and Order. See Dkt. No.
10 at 2-4.
B. Summary of Amended Complaint1
1 In the November 2025 Order, the Court noted that plaintiff submitted exhibits with the complaint. See Dkt. No.
10 at 4, n.2. The Court considered the documents in the context of the § 1915 review. See id. Plaintiff did not
attach the exhibits to the amended complaint. "Although it is well settled that an amended complaint
supersedes a prior complaint in its entirety, it is clear to the court that plaintiff intended to attach the exhibits to
his amended complaint." Wellington v. Langendorf, No. 12-CV-1019 (FJS/DEP), 2013 WL 3753978, at *3
(N.D.N.Y. July 15, 2013). To require plaintiff to file an amended complaint that includes the original exhibits is,
"an unnecessary procedural hoop that would waste resources and delay resolution of this action." Alexander v.
U.S., No. 13-CV-678, 2013 WL 4014539, at *4 (N.D.Cal. Aug. 5, 2013). Because plaintiff is a pro se plaintiff,
the Court will consider the documents attached to the original complaint as incorporated by reference in the
amended complaint.
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The factual allegations and the claims for relief asserted in the amended complaint are
substantially the same as those in the complaint. Compare Compl. with Am. Compl. Those
allegations and claims were described at length in the November 2025 Order.
C. Analysis
In the November 2025 Order, the Court dismissed the claims against defendants, in
their official capacities, as barred by the Eleventh Amendment and dismissed plaintiff's claims
against all private entities for failure to state a claim. Dkt. No. 10 at 9-11. The Court also
dismissed plaintiff's religious claims, claims related to violations of DOCCS' directives, and
conspiracy claims for failure to state a claim. Id. at 13-17. With respect to plaintiff's
retaliation claims, the Court noted that even assuming the claims were sufficiently plead, the
claims were subject to dismissal as untimely. Id. at 18-19. The Court reasoned:
Under the "prison mailbox rule," the date of filing is deemed to be
the date that the prisoner-plaintiff delivered his complaint to a prison
guard for mailing to the court, which is presumed to be the date that
the complaint was signed. See Houston v. Lack, 487 U.S. 266, 276
(1988); Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001). 	Here, the
complaint was executed on May 15, 2025. 	See Compl. at p. 21.
Thus, in the absence of some basis for tolling or disregarding the
limitations period, any claim that accrued before May 15, 2022, is
subject to dismissal as untimely asserted.
As a result, plaintiff's claims are subject to dismissal as untimely
filed unless plaintiff is able to demonstrate that the limitations period
with respect to any of these claims was tolled, or that any of these
claims are otherwise timely. 	See Abbas v. Dixon, 480 F.3d 363,
640-41 (2d Cir. 2007) (a District Court should not dismiss a
complaint as time-barred without providing a pro se plaintiff with
notice and an opportunity to be heard as to whether there might be
a meritorious tolling argument or other reason why the complaint
might be considered timely.).
Plaintiff alleges that the "violations of monopoly" against Dell,
Aventiv, JPay, and Securus have been "continually implemented."
See Compl. at ¶ 130. While plaintiff alleges that his due process
claims, "may have continued to the present," "continuing damages
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are not sufficient to show a continuing violation, which “may only be
predicated on continuing unlawful acts and not on the continuing
effects of earlier unlawful conduct[.]" Walker, 2023 WL 11867001,
at *14 (internal quotation marks and citation omitted). Here, plaintiff
does not allege any "wrongful acts" within the statutory time period
and thus, the continuing violation doctrine does not apply. See id.
Plaintiff also claims that his removal from Earned Housing and
transfer to Sing Sing C.F. occurred by July 2021, making the
"earliest date for tolling the time to file this complaint on July 16,
2021." 	Compl. at ¶¶ 131-132. 	The Court disagrees. 	Rather, the
claims are based on a discrete event that was completed before
May 2022. 	See Sierra v. Zerniak, No. 9:22-CV-0711 (BKS/TWD),
2023 WL 12106591, at *4 (N.D.N.Y. Jan. 31, 2023) (noting that
plaintiff's claims accrued on the date he was transferred).
Equitable tolling is available in "rare and exceptional" cases where
extraordinary 	circumstances 	prevented 	a 	party 	from 	timely
performing a required act," and "the party acted with reasonable
diligence throughout the period" to be tolled. Walker v. Jastremski,
430 F.3d 560, 564 (2d Cir. 2005). As the Second Circuit recognized
in Abbas, New York law recognizes the equitable tolling doctrine
where a plaintiff demonstrates that he was induced by fraud,
misrepresentations, or deception to refrain from timely commencing
an action, and that he acted with due diligence throughout the
period to be tolled. Abbas, 480 F.3d at 642; see also Gonzalez, 651
F.3d at 322 ("Equitable tolling is an extraordinary measure that
applies only when plaintiff is prevented from filing despite exercising
that level of diligence which could reasonably be expected in the
circumstances."). "[E]quitable tolling is [also] applicable to the time
period 	during 	which 	a 	prisoner-plaintiff 	is 	exhausting 	his
administrative remedies pursuant to the PLRA." 	Gonzalez, 651
F.3d at 323. The plaintiff bears the burden of establishing equitable
tolling. 	Abbas, 480 F.3d at 642. Here, plaintiff does not invoke
equitable tolling, nor does he "articulate[ ] any acts by defendants
that prevented [him] from timely commencing suit." Id. at 642.
Dkt. No. 10 at 20-22.
The Court has reviewed the amended complaint and finds that plaintiff has failed to
remedy the pleading deficiencies or statute of limitations issues identified in the November
2025 Order. Indeed, with respect to the timeliness issue, plaintiff states in a conclusory
manner, without factual support, that "tolling be equitable." See Am. Compl. at ¶¶ 130-132.
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As a result, the Court finds that plaintiff has not alleged facts in the amended complaint
which plausibly suggests that he is entitled to relief. For the reasons set forth in the
November 2025 Order, this action is dismissed. See 28 U.S.C. § 1915(e)(2)(B)(ii) and 28
U.S.C. § 1915A(b)(1).
Ordinarily, a court should not dismiss a complaint filed by a pro se litigant without
granting leave to amend at least once "when a liberal reading of the complaint gives any
indication that a valid claim might be stated." Branum v. Clark, 927 F.2d 698, 704–05 (2d
Cir.1991); see also Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so
requires.").
An opportunity to amend is not required, however, where "the problem with [the
plaintiff's] causes of action is substantive" such that "better pleading will not cure it." Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P.,
949 F.2d 42, 48 (2d Cir.1991) ("Of course, where a plaintiff is unable to allege any fact
sufficient to support its claim, a complaint should be dismissed with prejudice."). Stated
differently, "[w]here it appears that granting leave to amend is unlikely to be productive, . . . it
is not an abuse of discretion to deny leave to amend." Ruffolo v. Oppenheimer & Co., 987
F.2d 129, 131 (2d Cir.1993); accord, Brown v. Peters, No. 95–CV–1641, 1997 WL 599355, at
*1 (N.D.N.Y. Sept. 22, 1997).
In this instance, plaintiff has already been provided one opportunity to amend his
complaint. The deficiencies with his original complaint, identified by the court in the
November 2025 Order, have not been cured with the amended complaint. Accordingly, the
Court finds that any further amendment would be futile.
III. 	CONCLUSION
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WHEREFORE, it is hereby
ORDERED that the amended complaint (Dkt. No. 14) is DISMISSED without
prejudice in accordance with 28 U.S.C. § 1915(e)(2)(B)(ii) and 28 U.S.C. § 1915A(b)(1); and
it is further
ORDERED that the Clerk shall enter judgment accordingly; and it is further
ORDERED that the Clerk shall serve a copy of this Decision and Order on plaintiff by
in accordance with the Local Rules of Practice.
Dated: April 7, 2026
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