United States District Court, D. Delaware
NIGEL C. SYKES, Plaintiff,
SEASONS PIZZA, et al., Defendants.
REPORT AND RECOMMENDATION
SHERRY R. FALLON, Magistrate Judge.
Presently before the court in this action alleging assault and excessive force claims under 42 U.S.C. § 1983 are the following motions: (1) a motion to dismiss for failure to state a claim filed by Officers Don Maiorano and Stephen Johnson (together, the "Officer defendants"), and the Town of Newport (D.I. 24); (2) a motion to dismiss for failure to state a claim filed by defendants Adbeikader Bedhief, Mauricio Carrera, Misail Madariga, John McGidden, Taofiq Raha, and Seasons Pizza (collectively, the "Seasons Pizza defendants") (D.I. 41); and (3) a motion to appoint counsel filed by plaintiff Nigel C. Sykes ("Sykes" or "plaintiff") (D.I. 44). For the following reasons, I recommend that the court (1) grant the motion to dismiss filed by the Officer defendants; (2) grant the Seasons Pizza defendants' motion to dismiss; and (3) deny plaintiff's motion to appoint counsel as moot.
On November 30, 2010, plaintiff committed an armed robbery at the Seasons Pizza located in Stanton, Delaware. (D.I. 17 at 1) Plaintiff alleges that he entered the restaurant through the rear door and displayed a revolver hand gun when he encountered delivery driver Misail Madariga. ( Id. ) Defendant Madariga handed plaintiff $140.00 and two delivery receipts. ( Id. ) As plaintiff was making his way to the front of the restaurant, he was grabbed from behind by defendant Adbeikader Bedhief. ( Id. ) A struggle ensued, and the Seasons Pizza defendants gained control of plaintiffs hand gun. ( Id. ) After obtaining control of the gun, the Seasons Pizza defendants began kicking, punching, and pouring hot soup on plaintiff, rendering plaintiff unconscious. ( Id. )
Officers from the Newport Police Department arrived at the scene to find plaintiff unconscious on the floor. ( Id. ) When plaintiff regained consciousness, he found that his hands had been handcuffed behind his back, and he was tasered three times while handcuffed. ( Id. at 1-2) As the police officers escorted plaintiff from the restaurant to the police cruiser, officer Stephen Johnson punched plaintiff in the stomach twice and slammed plaintiffs head against the trunk of the police cruiser. ( Id. )
Throughout the course of his arrest, plaintiff requested medical attention from the paramedics at the scene, but his requests were repeatedly denied. ( Id. ) Plaintiff was taken to the police barracks in Bear, Delaware, where he was detained for approximately eight hours before being taken to Christiana Hospital to receive medical treatment. ( Id. ) Plaintiff claims that he continues to suffer bruises, headaches, contusions, and bums from the encounter. ( Id. ) Plaintiff emphasizes that he did not resist arrest at any point during the course of these events. ( Id. )
Plaintiff, proceeding prose, filed an action on February 17, 2011 (the "2011 action"), asserting causes of action for civil rights violations under 42 U.S.C. § 1983 and for assault against the Delaware State Police and Seasons Pizza, and seeking to recover damages for injuries he sustained during the course of the armed robbery on November 30, 2010. (C.A. No. 11-147-SLR, D.I. 3) On May 9, 2011, the court issued a memorandum and order dismissing the complaint as frivolous, but granting plaintiff leave to amend the complaint within thirty days. ( Id. at D.I. 7) On June 2, 2011, Plaintiff filed an amended complaint against the Delaware State Police, but did not include claims against Seasons Pizza. ( Id. at D.I. 8)
On June 17, 2011, the court entered an order requiring the Delaware State Police to identify the police officers involved in the November 30, 2010 occurrence within forty-five days after service of the complaint. ( Id. at D.I. 9) On October 25, 2011, the court issued an order dismissing the case without prejudice because plaintiff failed to complete service on the defendants within 120 days as required by Federal Rule of Civil Procedure 4(m). ( Id. at D.I. 10) Plaintiff subsequently filed a motion for reconsideration, which was granted, giving plaintiff an additional thirty days to complete service. ( Id. at D.I. 12; D.I. 13) However, plaintiff failed to serve the defendants within the specified time period, and on January 18, 2012, the court again dismissed plaintiff's case without prejudice pursuant to Rule 4(m). ( Id. at D.I. 16)
Plaintiff filed a second motion for reconsideration on July 10, 2012, which was denied. (Id. at D.I. 18) On December 7, 2012, plaintiff filed a motion to reopen the case, which was also denied. ( Id. at D.I. 22; D.I. 25) Plaintiff then moved for reconsideration of the court's order denying his motion to reopen the case on March 26, 2013, which was denied. ( Id. at D.I. 26; D.I. 27) Plaintiff again moved for reconsideration of the court's order denying his motion to reopen the case on May 6, 2013, and the court denied the motion, indicating that future motions for reconsideration to reopen the case would be docketed but not considered. (D.I. 28; D.I. 29)
Plaintiff filed a new complaint commencing the instant action on July 5, 2013. The pleading states the same assertions as in the original complaint. Plaintiff demands monetary damages against the Delaware State Police Department and Seasons Pizza for the injuries he sustained during the course of the armed robbery on November 30, 2010. (D.I. 1) Plaintiff subsequently amended the complaint on December 2, 2013. (D.I. 12) On January 17, 2014, the court dismissed the amended complaint for failure to state a claim and granted plaintiff thirty days to file an amended complaint. (D.I. 13; D.I. 14)
Plaintiff filed an amended complaint on February 5, 2014, alleging claims for assault and excessive force against the Seasons Pizza defendants, the Officer defendants, the Newport Police Department, and Officer Mark Wahner. (D.I. 15) The court entered a deficiency notice the following day because plaintiff failed to sign the amended pleading in violation of Federal Rule of Civil Procedure 5 and D. Del. Local Rule 5.1(a). (D.I. 16) Plaintiff corrected the deficiency and refiled the amended complaint on February 18, 2014. (D.I. 17) This court issued a memorandum and order on April 23, 2014, dismissing all claims against Officer Mark Wahner and the Newport Police Department as frivolous pursuant to 28 U.S.C. § 1915, but permitting plaintiff to proceed with claims against the Seasons Pizza defendants and the Officer defendants. (D.I. 18; D.I. 19) The Officer defendants and the Seasons Pizza defendants subsequently filed their respective motions to dismiss pursuant to Rule 12(b)(6), alleging that plaintiffs claims are barred by the statute of limitations. (D.I. 24; D.I. 41)
II. LEGAL STANDARD
Rule 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint and view them in the light most favorable ...