Opinion
9:07-cv-1138 (GLS/DEP).
September 30, 2010
Tommy Crosby, Pro Se, 92-A-8525, Wende Correctional Facility, Albany, NY, Attorney for the Plaintiff.
HON. ANDREW M. CUOMO, Assistant Attorney General, DAVID L. COCHRAN, New York State Attorney General, Albany, NY, Attorneys for the Defendants.
MEMORANDUM-DECISION AND ORDER
I. Introduction
Pro se plaintiff Tommy Crosby, an inmate at Wende Correctional Facility, brings this action under 42 U.S.C. § 1983, alleging that his medical providers violated his Eighth and Fourteenth Amendment rights by failing to inform him for nearly ten years that he suffers from hepatitis C and by withholding appropriate treatment for his condition. ( See Compl., Dkt. No. 1.) In addition, Crosby alleges that defendants violated his rights under the Americans with Disabilities Act (ADA), the Rehabilitation Act of 1973, and state tort law. ( See id.) Defendants O'Connell, Magee, Edwards, Nesmith, Paolano, Smith, Genovese, and Wright moved for summary judgment. (Dkt. No. 60.) On February 22, 2010, Magistrate Judge David E. Peebles issued a Report and Recommendation Order (R R) recommending that the court: (1) deny defendants' motion with respect to Crosby's Eighth Amendment deliberate medical indifference claim; (2) deny defendants' motion based on the statute of limitations; (3) dismiss Crosby's state law claims; and (4) dismiss Crosby's claims against defendants Takos and Forte in accordance with Rule 4(m). (Dkt. No. 70.) Pending are the parties' objections to the R R. (Dkt. No. 75, 76.) For the reasons that follow, the R R is adopted in its entirety.
In addition to Lester Wright, the Associate Commissioner and Chief Medical Officer for the New York State Department of Correctional Services (DOCS), defendants include Crosby's medical providers at various facilities: Dr. O'Connell, Physician Assistant Robert Magee, Dr. Robert Takos, and Dr. Thomas Edwards at Attica; Physician Assistant Ted Nesmith, Dr. Albert Paolano, and Dr. William Smith at Great Meadow; and Dr. Anthony Forte and Dr. Maryann Genovese at Shawangunk.
42 U.S.C. § 12101, et seq.
29 U.S.C. § 794, et seq.
II. Standard of Review
Before entering final judgment, this court routinely reviews all report and recommendation orders in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In cases in which no party has filed an objection, or only a vague or general objection has been filed, this court reviews the findings and recommendations of a magistrate judge for clear error. See id.
III. Discussion
A. Eighth Amendment Claim
Judge Peebles found that Crosby's Eighth Amendment claim satisfied both the objective and subjective requirements of a deliberate medical indifference claim. ( See R R at 23, Dkt. No. 70.)The standard for an Eighth Amendment claim based on deliberate indifference includes both an objective and subjective prong. See Wilson v. Seiter, 501 U.S. 294, 298 (1991). To satisfy the objective prong, an alleged deprivation must be "sufficiently serious." See id. This means a condition of urgency that may lead to death, degeneration, or extreme pain. See Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994). Factors to consider include: (1) whether the condition significantly impairs a plaintiff's daily activities; (2) whether the condition has caused a plaintiff severe or chronic pain; (3) worsening of the condition due to lack of treatment; and (4) whether a reasonable doctor or patient would find the injury important and worthy of comment or treatment. See Chance v. Armstrong, 143 F.3d 698, 701-02 (2d Cir. 1998).
The subjective prong requires more than negligence by a defendant. See Hathaway, 37 F.3d at 66. Rather, a defendant must "know[] of and disregard[] an excessive risk to inmate health or safety." Id. (internal quotation marks and citation omitted). For example, a prison official's conscious delay or failure to treat an inmate's serious medical condition "as punishment or for other invalid reasons" would satisfy the subjective prong. See Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000) (internal quotation marks, emphasis, and citations omitted).
Here, as to the objective prong, Crosby outlined the effects of failure to treat hepatitis C, including fibrosis, cirrhosis, and liver cancer. ( See Compl. ¶¶ 35-43, Dkt. No. 1.) Crosby also alleged that throughout the nine years that he was undiagnosed with hepatitis C, he suffered from various symptoms associated with the virus, including decreased appetite, fatigue, abdominal pain, and flu-like symptoms. ( See id. at ¶¶ 53, 60, 67, 71, 76, 79.) In reliance on defendant Dr. Maryann Genovese's declaration, defendants assert that Crosby suffered no life-threatening symptoms of hepatitis C and had not suffered severe pain, deterioration of health, or permanent disability. ( See Defs. Objections at 1-2, Dkt. No. 75.) Nontheless, the seriousness and worsening of Crosby's medical condition remain triable issues of fact.
Regarding the subjective prong, Judge Peebles found that summary judgment was not warranted with respect to defendants' deliberate indifference to Crosby's condition. ( See R R at 22-23, Dkt. No. 70.) Specifically, Judge Peebles noted that defendants fail to counter Crosby's assertions that "[where treatment for hepatitis C] is delayed, it becomes less effective because chronic [h]epatitis C causes increased fibrosis, or scarring, of liver tissue and eventually cirrhosis of the liver." ( Id. at 23 (internal quotation marks and citation omitted).) Moreover, defendants do not dispute that they were aware of Crosby's condition and failed to provide treatment for that specific condition. Defendants also fail to address Crosby's contention that his Hepatitis C remained untreated due to a DOCS medical policy that encouraged withholding treatment to inmates with Hepatitis C to avoid costs. ( See Compl. ¶¶ 104-05, Dkt. No. 1.) Accordingly, questions remain as to the existence of an alleged policy-driven motive for withholding treatment and whether defendants consciously disregarded Crosby's health.
Therefore, the court agrees with Judge Peebles that factual questions remain as to Crosby's Eighth Amendment claim, and therefore denies summary judgment on Crosby's Eighth Amendment claim.
B. Statute of Limitations
Judge Peebles also recommended that the court deny defendants' motion for summary judgment on untimeliness grounds. ( See R R at 26, Dkt. No. 70.) Judge Peebles explained that the timeliness of Crosby's claim cannot be determined without considering whether defendants had fraudulently concealed the cause of action. ( See id. at 25.) Crosby asserts that defendants concealed his condition and therefore the statute of limitations did not begin running until approximately February 2006. ( See Pl. Mem. of Law at 9-11, Dkt. No. 63:2.) In their objections, defendants claim that Crosby was sent written notification of his positive hepatitis C test on November 9, 2004. ( See Defs. Objections at 2, Dkt. No. 75.)
Although the statute of limitations governing § 1983 claims in New York State is three years, a § 1983 claim does not ordinarily accrue until "the plaintiff knows or has reason to know of the harm." See Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (internal quotation marks and citation omitted). In cases of fraudulent concealment, "where the defendant conceals from the plaintiff the fact that he has a cause of action," New York applies the doctrine of equitable estoppel to preclude defendants from asserting a defense based on the statute of limitations. See Pearl v. City of Long Beach, 296 F.3d 76, 82 (2d Cir. 2002) (internal question marks and citations omitted). In the present case, as Judge Peebles correctly pointed out, questions of fact remain as to whether defendants concealed Crosby's condition from him and whether Crosby had reason to know about the alleged harm before February 2006. Accordingly, the court adopts the portion of the R R denying defendants' motion as to timeliness.
C. ADA and Rehabilitation Act Claims
Regarding the claims brought under the ADA and the Rehabilitation Act, Judge Peebles concluded that defendants' motion did not seek summary judgment on these claims and therefore declined to address their sufficiency. (R R at 10, n. 8, Dkt. No. 70.) In their objections to the R R, defendants assert that liability under the ADA and the Rehabilitation Act does not extend to individuals. ( See Defs. Objections at 3, Dkt. No. 75.) They argue that because the state is not a defendant, the court should dismiss Crosby's claims under each Act. ( Id.) Ordinarily, courts hesitate to consider new arguments or evidence presented in a summary judgment reply brief. See Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1163-64 (10th Cir. 1998). However, because the law may preclude the court from exercising jurisdiction over Crosby's claims, the court will consider defendants' arguments for summary judgment on these grounds. The court agrees with defendants that Crosby is barred from bringing claims against them in their individual capacities. See Andino v. Fischer, 698 F. Supp. 2d 362, 380 (S.D.N.Y. 2010); Herzog v. McLane Northeast, 999 F. Supp 274, 276 (N.D.N.Y. 1998). Still, the ADA and the Rehabilitation Act do not prohibit Crosby from bringing an action for injunctive and declaratory relief against state officers in their official capacities. See Henrietta D. v. Bloomberg, 331 F.3d 261, 287-88 (2d Cir. 2003). However, "an inmate's transfer from a prison facility generally moots claims for declaratory and injunctive relief against officials of that facility." Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citing Young v. Coughlin, 866 F.2d 567, 568 n. 1 (2d Cir. 1989), and Mawhinney v. Henderson, 542 F.2d 1, 2 (2d Cir. 1976)). Aside from defendant Wright, who is the Associate Commissioner and Chief Medical Officer of DOCS, any injunctive or declaratory claims against defendants O'Connell, Magee, Edwards, Nesmith, Paolano, Smith, Genovese, Takos, and Forte would be moot since none of them work at Wende Correctional Facility. Consequently, since he can seek injunctive and declaratory relief only against Wright, Crosby's claims for such relief under the ADA and the Rehabilitation Act against defendants O'Connell, Magee, Edwards, Nesmith, Paolano, Smith, Genovese, Takos, and Forte are dismissed.
D. State Law Claims
E. Rule 4(m)
Cusamano v. Sobek 604 F. Supp. 2d 416482 42 U.S.C. § 1983Fluent v. Salamanca Indian Lease Auth. 847 F. Supp. 10461056Ierardi v. Sisco119 F.3d 183186-87 Baker v. Coughlin 77 F.3d 1214-15see also24Ierardi119 F.3d at 187 4 See See4see also Zapata v. City of New York 502 F.3d 192195See Romandette v. Weetabix Co.807 F.2d 309310See id. See
The 120-day period does not begin to run against a pro se plaintiff until a court renders a decision regarding the plaintiff's in forma pauperis application. See Romand v. Zimmerman, 881 F. Supp. 806, 809-10 (N.D.N.Y. 1995).
IV. Conclusion
WHEREFORE, for the foregoing reasons, it is herebyORDERED that Magistrate Judge David E. Peebles's February 22, 2010 Report and Recommendation (Dkt. No. 70) is ADOPTED in its entirety as follows:
1. Defendants' motion for summary judgment (Dkt. No. 60) is DENIED as to Crosby's Eighth Amendment claim;
2. Crosby's claims under the ADA and the Rehabilitation Act against the defendants in their individual capacities are DISMISSED;
3. Crosby's ADA and Rehabilitation Act claims against defendants O'Connell, Magee, Edwards, Genovese, Paolano, Smith, Nesmith, Takos, and Forte in their official capacities are DISMISSED;
4. Crosby's ADA and Rehabilitation Act claims for monetary damages against defendant Wright in his official capacity are DISMISSED;
5. Defendants' motion for summary judgment is DENIED as to Crosby's ADA and Rehabilitation Act claims for declaratory and injunctive relief against defendant Wright in his official capacity;
6. Crosby's state law claims are DISMISSED; and
7. Crosby's claims against defendants Takos and Forte are DISMISSED pursuant to FED. R. CIV. P. 4(m); and it is furtherORDERED that the Clerk provide copies of this Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
September 30, 2010
Albany, New York
REPORT AND RECOMMENDATION
Plaintiff Tommy Crosby, a New York State prison inmate who is proceeding pro se and in forma pauperis, has commenced this action pursuant to 42 U.S.C. § 1983, complaining of the deprivation of his civil rights. In his complaint, plaintiff alleges that by failing to inform him over a ten year period that he had tested positive for the Hepatitis virus and to medically treat him accordingly over that period, defendants were deliberately indifferent to his serious medical needs, in violation of his protected rights under the Eighth and Fourteenth Amendments to the United States Constitution, the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12,0101 et seq., section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and state law. As relief, plaintiff's complaint seeks recovery of compensatory and punitive damages, as well as affirmative injunctive relief directing that his medical records be explained to him by a qualified physician, that he be evaluated by a gastroenterologist, and that he receive all treatment recommended by that medical specialist.
Plaintiff's complaint also seeks a declaratory judgment directing that his disciplinary records from February 19, 1995 through the end of 2005 be expunged to eliminate all reference to disciplinary determinations. Plaintiff's complaint, however, discloses no connection between his medical indifference claims and this request for relief.
Currently pending before the court is a motion brought by the defendants requesting the entry of summary judgment dismissing plaintiff's complaint. In their motion defendants argue that plaintiff's claims should be dismissed for a variety of reasons, including substantively as lacking in merit, and procedurally as barred by the statute of limitations. Having carefully reviewed the record now before the court, considered in light of the arguments raised by the defendants and in plaintiff's opposition to their motion, I recommend that a portion of defendants' motion be granted, but that it be denied in principal part based upon defendants' failure to carry their initial burden of establishing the lack of any triable issue of fact.
I. BACKGROUND
In light of the procedural posture of the case, the record now before the court has been interpreted in a light most favorable to the plaintiff, as a non-moving party, with all inferences drawn, and ambiguities resolved, in his favor. See Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005).
At the times relevant to his complaint, plaintiff was a prison inmate entrusted to the custody of the New York State Department of Correctional Services ("DOCS"). Plaintiff's claims in this action center upon defendants' alleged failure to properly evaluate and treat his Hepatitis C condition for a period of approximately ten years, during which he was confined in three separate correctional facilities.
Plaintiff was diagnosed in 1995 as suffering from Hepatitis A, B and C. Complaint (Dkt. No. 1) ¶¶ 50-51, Exhs. A and B. The focus of plaintiff's complaint, however, is upon defendants' failure to treat his Hepatitis C condition. Hepatitis C, which courts have described as "a chronic and potentially fatal disease," Ibrahim v. Dist. of Columbia, 463 F.3d 3, 7 (D.C. Cir. 2006), is
"the most common form of postransfusion hepatitis; it can also follow parenteral drug abuse or other intimate personal contact with an infected person. This is a common acute sporadic form of hepatitis, and approximately 50 percent of acutely infected persons develop chronic hepatitis. Although the chronic infection is usually mild and asymptomatic, cirrhosis may occur." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 856 (31st ed. 2007).
In February of 1995, plaintiff was confined in the Attica Correctional Facility ("Attica"). Complaint (Dkt. No. 1) ¶ 45. While at Attica, plaintiff was under the care of various medical personnel, including Dr. O'Connell, Physician Assistant Robert Magee, Dr. Robert Takos, and Dr. Thomas Edwards. Id. ¶¶ 49-65. Plaintiff states that he reported to sick call at Attica "on a regular basis complaining of loss of appetite, nausea, vomiting, migraine headaches, fatigue, abdominal pains, chest abscesses, joint pains, and persistent flu-like symptoms." Id. ¶ 46. Blood tests performed in August, 1995 revealed that plaintiff tested positive for Hepatitis C. Id. ¶ 55 and Exh. B.
In 1995 or 1996, a "very painful inflammation" between plaintiff's left thumb and index finger was surgically removed. Id. ¶¶ 57-58. Although plaintiff contends otherwise, there is no indication in his medical records or elsewhere that the condition was in any way related to Hepattiis C. Genovese Decl. (Dkt. No. 60-4) ¶¶ 7, 9. Plaintiff also required medical treatment in 1996 after developing "very painful abscesses on his chest area" and "very painful blistered skin rashes" between his thighs. Complaint (Dkt. No. 1) ¶¶ 62, 64. Those conditions were diagnosed as resulting from fungal infections. Genovese Decl. (Dkt. No. 60-4) ¶ 11. While in Attica, none of plaintiff's medical providers informed him of the August, 1995 laboratory test results which revealed that he had tested positive for Hepatitis C, nor did he receive any evaluation or treatment for Hepatitis C while at that facility. Complaint (Dkt. No. 1) ¶¶ 46-65, and Exhs. A, B.
Plaintiff was transferred from Attica into the Great Meadow Correctional Facility ("Great Meadow") in October of 1997, and remained at that facility until approximately August of 2001. Complaint (Dkt. No. 1) ¶¶ 66, 74. During that time, plaintiff was under the care of Physician Assistant Ted Nesmith, Dr. Albert Paolano, and Dr. William Smith. Id. ¶ 66. Plaintiff reported to sick call at Great Meadow on numerous occasions, complaining of the same flu-like symptoms he experienced while at Attica. Id. ¶¶ 67-71. Plaintiff also sought medical care at the facility for "very painful blistered skin rashes" between his thighs and migraine headaches. Id. ¶¶ 68-70. Plaintiff's skin rashes were similarly diagnosed by medical personnel as fungal infections. Genovese Decl. (Dkt. No. 60-4) ¶ 11. During the time of his confinement at Great Meadow, Crosby was never informed by his medical providers "that he is suffering from the very potentially fatal disease Hepatitis C," nor did he receive evaluation or treatment for that condition. Complaint (Dkt. No. 1) ¶ 72.
Plaintiff was transferred from Great Meadow into the Shawangunk Correctional Facility ("Shawangunk") in August, 2001. Complaint (Dkt. No. 1) ¶ 74. While there, plaintiff signed up for sick call on a "regular basis", complaining to Dr. Anthony Forte about the same symptoms he had experienced at Attica and at Great Meadow. Id. ¶ 76. Dr. Forte never informed plaintiff that he had Hepatitis C. Id. ¶ 77.
In 2004, shortly after Dr. Forte's death, Dr. Maryann Genovese assumed responsibility for plaintiff's medical care. Complaint (Dkt. No. 1) ¶¶ 77-78. During that time frame plaintiff continued to seek medical treatment, complaining of "migraine headaches, abdominal pain, vomiting, loss of appetite, nausea, fatigue, flu-like symptoms, joint pains, night sweats, and abnormal bowel movements." Id. ¶ 79. Plaintiff also complained to Dr. Genovese that he was not able to "walk, sit, or stand for more than five minutes," had skin rashes on his upper and lower body, and experienced "loud ringing" in his ears. Id. ¶¶ 80-81. Plaintiff was diagnosed with arthritis and high blood pressure in 2004, and as suffering from a fungal infection. Id. ¶ 86; see also Genovese Decl. (Dkt. No. 60-4) ¶ 16. Plaintiff's sinus condition progressed to a point where he was scheduled for sinus surgery in late 2005. Complaint (Dkt. No. 1) ¶¶ 93-95. During the course of those encounters, Dr. Genovese never informed Crosby that he had tested positive for Hepatitis C in 1995. Id.
In October of 2004, plaintiff was summoned to the Shawangunk health care unit for his "five year check-up." Complaint (Dkt. No. 1) ¶ 85. Plaintiff received notification from the medical department on October 22, 2004, to the effect that lab test results showed his "liver numbers" were "slightly elevated," and that Dr. Genovese would check him for Hepatitis. Id. ¶ 88. On November 9, 2004, plaintiff was notified that he had tested positive for the Hepatitis virus. Id. ¶ 89.
Following that positive test result, plaintiff underwent further evaluation for the disease, including consultation with a gastroenterologist in February, 2005. Genovese Decl. (Dkt. No. 60-4) ¶ 24. A liver biopsy recommended by the specialist was performed in March, 2005, and plaintiff was again evaluated by the gastroenterologist in May of 2005. Id. ¶¶ 24-26. According to Dr. Genovese, plaintiff "was treated for hepatitis C on 10/5/06 and 1/12/07," nearly ten years after his diagnosis and two years after his 2004 positive Hepatitis C test results. Genovese Decl. Id. ¶ 29.
The treatment dates provided by Dr. Genovese may in fact be incorrect. Plaintiff indicates that he received Hepatitis treatment in 2005. See Crosby Aff. (Dkt. No. 63-1) ¶ 21; see also Plaintiff's Exhibits (Dkt. No. 63-3) p. 29 (Letter from Legal Aid Society Staff Attorney to Facility Health Services Director at Elmira Correctional Facility, stating that plaintiff "reports that he was on treatment for Hepatitis C from June 2005 through June 2006.")
In December, 2005, plaintiff read an article published in the Village Voice entitled "Rotting Away." Complaint (Dkt. No. 1) ¶ 96. According to Crosby, the article "explained how DOCS medical staff and Chief Medical Officer Lester N. Wright knew that prisoners had been diagnosed with the potentially fatal Hepatitis A, B or C, up to eight, nine, and ten years" back without being informed of the diagnosis or provided treatment for the virus. Id. ¶ 97. The news article prompted plaintiff to request copies of his medical records. In February, 2006, Crosby obtained those records, and from them learned for the first time that he had tested positive for Hepatitis C in 1995. Id. ¶¶ 98-99.
Plaintiff alleges that this "policy" was intended to reduce the costs of Hepatitis C treatment, and was effectuated in part by requiring inmates to complete medically unnecessary alcohol and drug rehabilitation programs prior to undergoing treatment and, in some cases, by limiting access to those programs. Complaint (Dkt. No. 1) ¶¶ 4-8, 104-05. Plaintiff completed such a program while at Shawangunk in 2003. Id. ¶ 8.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on April 2, 2007. Dkt. No. 1. As defendants, plaintiff's complaint names his medical providers at Attica — Dr. O'Connell, Physician Assistant Robert Magee, Dr. Robert Takos, and Dr. Thomas Edwards; his medical providers at Great Meadow-Physician Assistant Ted Nesmith, Dr. Albert Paolano, and Dr. William Smith; and his medical providers at Shawangunk — Dr. Anthony Forte, and Dr. Maryann Genovese. Dr. Lester N. Wright, Associate Commissioner and Chief Medical Officer of the DOCS, is also named as a defendant.
This action was commenced in the Western District of New York, but was ordered transferred to this district on October 26, 2007 by District Judge David Larimer. See Dkt. No. 22. That transfer was sought by the plaintiff, who expressed his hope to consolidate this case with actions pending in the Northern District which also raised Eighth Amendment claims regarding the provision of HCV treatment to DOCS inmates. Plaintiff's Motion to Change Venue (Dkt. No. 6) at p. 1. Plaintiff identified Norris v. Wright, 9:06-CV-0397 (DNH/GHL) and Hilton v. Wright, 9:05-CV-1038 (DNH/DEP), both of which were pending in this district at the time, as two such actions. Since the transfer, however, plaintiff has taken no steps to seek consolidation of this action with any other pending case.
In his complaint, plaintiff claims that defendants 1) failed for nearly ten years to inform him that he suffers from "a very potentially fatal disease;" and 2) withheld evaluation and appropriate treatment for his disease between 1995 and 2005, in violation of his Eighth and Fourteenth Amendment rights. Plaintiff also claims that the defendants' conduct violated his rights guaranteed by the ADA and the Rehabilitation Act, as well as under state tort law.
On March 6, 2009, following the joinder of issue and completion of pretrial discovery, defendants Genovese, Wright, Magee, Edwards, Nesmith, Paolano, Smith and O'Connell moved for summary judgment dismissing plaintiff's complaint. Dkt. No. 60. In their motion, defendants argue that 1) plaintiff's Eighth Amendment claims are substantively deficient, in that the record reveals plaintiff's medical needs were adequately met by DOCS medical personnel; 2) any claims against defendants O'Connell, Magee, Edwards, Nesmith, Paolano, and Smith are barred by the statute of limitations; and 3) plaintiff's state law claims are precluded by New York Correction Law § 24, and should therefore be dismissed. Id. Plaintiff has since submitted papers in opposition to defendants' motion. Dkt. No. 63.
Defendants Takos and Forte have not been served with process and are therefore not involved in the pending motion. As is discussed later in this report, I am recommending the dismissal of plaintiff's claims against those defendants in accordance with Federal Rule of Civil Procedure 4(m). See pp. 30-31, post.
Defendants' motion does not seek summary judgment dismissing plaintiff's claims under the ADA and the Rehabilitation Act. Accordingly, I have not addressed the sufficiency of those claims in this report.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment is governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82 (2d Cir. 2004). A fact is "material", for purposes of this inquiry, if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Jeffreys v. City of New York, 426 F.3d 549, 553 (2d Cir. 2005) (citing Anderson). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510.
A moving party bears the initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Celotex, 477 U.S. at 323 n. 4, 106 S.Ct. at 2553; Security Ins., 391 F.3d at 83. In meeting this burden, the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553 (quoting Fed.R.Civ.P. 56(c)).
In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material issue of fact for trial. Fed.R.Civ.P. 56(e); Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; Anderson, 477 U.S. at 250, 106 S.Ct. at 2511. Though pro se plaintiffs are entitled to special latitude when defending against summary judgment motions, they must establish more than mere "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986); but see Vital v. Interfaith Med. Ctr., 168 F.3d 615, 620-21 (2d Cir. 1999) (noting obligation of court to consider whether pro se plaintiff understood nature of summary judgment process).
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences from the facts, in a light most favorable to the nonmoving party. Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is warranted only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. See Building Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002) (citation omitted); see also Anderson, 477 U.S. at 250, 106 S.Ct. at 2511 (summary judgment is appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Eighth Amendment
Claims that prison officials have intentionally disregarded an inmate's medical needs are encompassed within the Eighth Amendment's prohibition of cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 102, 104, 97 S.Ct. 285, 290, 291 (1976). The Eighth Amendment's prohibition of cruel and unusual punishment encompasses punishments that involve the "unnecessary and wanton infliction of pain" and are incompatible with "the evolving standards of decency that mark the progress of a maturing society." Id.; see also Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078, 1084 (1986) (citing, inter alia, Estelle). While the Eighth Amendment does not mandate comfortable prisons, neither does it tolerate inhumane treatment of those in confinement; thus the conditions of an inmate's confinement are subject to Eighth Amendment scrutiny. Farmer v. Brennan, 511 U.S. 825, 832, 114 S.Ct. 1970, 1976 (1994) (citing Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392, 2400 (1981)).
A claim alleging that prison conditions violate the Eighth Amendment must satisfy both an objective and subjective requirement — the conditions must be "sufficiently serious" from an objective point of view, and plaintiff must demonstrate that prison officials acted subjectively with "deliberate indifference." See Leach v. Dufrain, 103 F. Supp.2d 542, 546 (N.D.N.Y. 2000) (Kahn, J.) (citing Wilson v. Seiter, 501 U.S. 294, 297-98, 111 S.Ct. 2321, 2323-24 (1991)); Waldo v. Goord, No. 97-CV-1385, 1998 WL 713809, at *2 (N.D.N.Y. Oct. 1, 1998) (Kahn, J. Homer, M.J.); see also, generally, Wilson, 501 U.S. 294, 111 S.Ct. 2321. Deliberate indifference exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach, 103 F. Supp.2d at 546 ( citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo, 1998 WL 713809, at *2 (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979).
Copies of all unreported decisions cited in this document have been appended for the convenience of the pro se plaintiff.
1. Serious Medical Need
In order to meet the objective prong of the governing Eighth Amendment test in a medical indifference case, a plaintiff must first allege a deprivation involving a medical need which is, in objective terms, "'sufficiently serious.'" Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994) (quoting Wilson, 501 U.S. at 298, 111 S.Ct. at 2324), cert. denied sub nom., Foote v. Hathaway, 513 U.S. 1154, 115 S.Ct. 1108 (1995). A medical need is serious for constitutional purposes if it presents "'a condition of urgency' that may result in 'degeneration' or 'extreme pain'." Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (citations omitted). A serious medical need can also exist where "'failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain'"; since medical conditions vary in severity, a decision to leave a condition untreated may or may not raise constitutional concerns, depending on the facts. Harrison v. Barkley, 219 F.3d 132, 136-37 (2d Cir. 2000) (quoting, inter alia, Chance, 143 F.3d at 702). Relevant factors informing this determination include whether the plaintiff suffers from an injury that a "'reasonable doctor or patient would find important and worthy of comment or treatment'", a condition that "'significantly affects'" a prisoner's daily activities, or "'the existence of chronic and substantial pain.'" Chance, 143 F.3d at 702 (citation omitted); LaFave v. Clinton County, No. CIV. 9:00CV774, 2002 WL 31309244, at *3 (N.D.N.Y. Apr. 3, 2002) (Sharpe, M.J.) (citation omitted).
It is not altogether clear from defendants' motion papers whether they contend that no reasonable factfinder could conclude plaintiff suffered from a serious medical need at the relevant times. In their analysis of plaintiff's Eighth Amendment claim, defendants point to the declaration of Dr. Maryann Genovese, which summarily chronicles the medical treatment which Crosby has received from the DOCS over the years, and states in conclusory fashion that "it is clear that plaintiff received appropriate and proper medical care and his medical needs were properly treated", adding that "[a]dditionally, the plaintiff's care was, at all times, competent and professional." Defendants' Memorandum (Dkt. No. 60-6) at p. 4. Defendants go on to state that assuming for the sake of argument plaintiff can satisfy the objective prong by establishing the existence of a serious medical need, his complaint nonetheless fails to reflect subjective culpability on the part of the defendants. Id.
Plaintiff, with considerable justification, reads defendants' motion papers to concede that the objective prong has been established for purposes of the present motion. Plaintiff's Memorandum (Dkt. No. 63-2) at p. 7.
I do not interpret plaintiff's complaint as quarreling with the treatment which he received for his various other medical conditions over time. Instead, plaintiff's complaint appears to challenge the failure on the part of DOCS medical personnel to inform him that as early as 1995 he tested positive for the Hepatitis C virus and, more importantly, to treat him appropriately for that condition. Plaintiff has provided excerpts from his medical records upon which he relies to substantiate his claim that he tested positive for Hepatitis C in 1995. A "Medilabs" report dated February 25, 1995 includes a handwritten note which appears to say "Need Hep C report VDRL". Complaint (Dkt. No. 1) Exh. A. A "Medilabs" report dated August 22, 1995 indicates a positive test result for Hepatitis C. Id. Exh. B. A patient referral form dated April 16, 1996 identifies Hepatitis C as part of plaintiff's "Significant Past Medical/Surgical History." Crosby Aff. (Dkt. No. 63-3) Exh. 1.
Defendants' motion appears to rest entirely upon Dr. Genovese's conclusions, offered without citation to plaintiff's medical records, that "there were no symptoms of life threatening hepatitis C;" "plaintiff was able to function and carry out the routine activities of daily life, including exercising;" and "plaintiff had not been suffering severe pain, deterioration of his health or a permanent disability." Genovese Decl. (Dkt. No. 60-4) ¶¶ 4, 5, 28. Defendants have not submitted a complete set of plaintiff's DOCS medical records, nor have they identified any other portion of the record which provides the factual basis for these conclusions. A reasonable factfinder could well conclude that in light of its known debilitating affects, Hepatitis C constitutes a serious medical need warranting treatment.
Notably missing from this recitation is an assessment of plaintiff's medical conditions with reference to the third Chance factor — whether the condition(s) is one which a "reasonable doctor or patient would find important and worthy of comment or treatment." See Chance, 143 F.3d at 702.
Numerous courts have recognized Hepatitis C as a "serious medical condition" for purposes of Eighth Amendment deliberate indifference analysis. See, e.g. Motta v. Wright, 9:06-CV-1047, 2009 WL 1437589, at *15 (N.D.N.Y. May 20, 2009) ("No one disputes that [Hepatitis C] is a 'serious medical condition.'"); Muniz v. Goord, 9:04-CV-0479, 2007 WL 2027912, at *8, n. 38 (N.D.N.Y. July 11, 2007) ("the bulk of district court decisions addressing the issue finds that Hepatitis C is a serious medical need.") (citing cases).
Upon careful review of the record now before the court, I find that defendants have not met their initial burden on summary judgment to demonstrate that there is no genuine issue of material fact to be decided with respect to whether plaintiff's medical condition, and specifically his Hepatitis C, presented a serious medical need in a constitutional sense at the relevant times.
2. Deliberate Indifference
In addition to establishing the existence of a serious medical need, to prevail on an Eighth Amendment claim a plaintiff must also establish indifference to that condition on the part of one or more of the defendants. Leach, 103 F. Supp.2d at 546. Deliberate indifference, in a constitutional sense, exists if an official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he [or she] must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. at 1979; Leach, 103 F. Supp.2d at 546 (citing Farmer, 511 U.S. at 837, 114 S.Ct. at 1979); Waldo, 1998 WL 713809, at *2 (same).
A physician's mere negligence in treating or failing to treat a prisoner's medical condition does not implicate the Eighth Amendment and is not properly the subject of a § 1983 action. Estelle, 429 U.S. at 105-06, 97 S.Ct. at 292; Chance, 143 F.3d at 703. "Medical malpractice does not become a constitutional violation merely because the victim is a prisoner." Estelle, 429 U.S. at 106, 97 S.Ct. at 292. Thus, a physician who "delay[s] . . . treatment based on a bad diagnosis or erroneous calculus of risks and costs" does not exhibit the mental state necessary for deliberate indifference. Harrison, 219 F.3d at 139. Likewise, an inmate who disagrees with the physician over the appropriate course of treatment has no claim under § 1983 if the treatment provided is "adequate." Chance, 143 F.3d at 703. However, if prison officials consciously delay or otherwise fail to treat an inmate's serious medical condition "as punishment or for other invalid reasons," such conduct constitutes deliberate indifference. Harrison, 219 F.3d at 138; Kearsey v. Williams, 2005 WL 2125874, at *5 (S.D.N.Y. Sep. 1, 2005).
By their motion, defendants ask the court to find that no genuine issue of material fact exists with respect to their subjective assessment of and response to plaintiff's medical needs. Once again, however, defendants have not identified to the court the portions of the record which they believe demonstrate that summary judgment is warranted. Defendants' Memorandum (Dkt. No. 60-6) at p. 6. Rather, defendants simply assert that "[a]gainst this backdrop there could be no finding that any defendant acted with any wanton disregard to the plaintiff's health." Id.
The "backdrop" of which I am aware does not admit of that conclusion. It is undisputed that while plaintiff was diagnosed with Hepatitis C in 1995, and thereafter claims to have complained on a regular basis of symptoms consistent with that virus, and despite the availability of treatment for that disease, including through use of Pegylated Interferon, either alone or in combination with Ribavirin, he was not treated for the disease until some ten years later. Plaintiff's claim that no Hepatitis C evaluation or treatment was provided for a period of approximately ten years following his diagnosis in 1995 is also unanswered by any of the defendants. Plaintiff alleges, and defendants do not dispute in their motion papers, that "[where treatment for Hepatitis C] is delayed, it becomes less effective because chronic Hepatitis C causes increased fibrosis, or scarring, of liver tissue and eventually cirrhosis of the liver." Complaint (Dkt. No. 1) ¶ 39. Defendants have also chosen not to address plaintiff's claim that his Hepatitis C was ignored because DOCS medical policy promulgated under the direction of defendant Wright, encouraging or even requiring that the costs of providing inmates with Hepatitis C treatment be avoided.
The limited record now before the court reveals a sharp contrast between plaintiff's contention regarding his reporting of symptomology consistent with Hepatitis C to prison officials at the three facilities at which he was confined during the relevant times, and defendants' position. In her declaration Dr. Genovese states that plaintiff's medical records show "no complaints of loss of appetite, nausea, vomiting, migraine headaches, fatigue, abdominal pains or persistent flu symptoms." Genovese Decl. (Dkt. No. 60-4) ¶ 8. Conspicuously lacking from defendants' motion papers, however, are medical records which would permit the court to make an independent review and substantiate this statement. In sharp contrast, plaintiff has alleged in his complaint that he complained of such symptoms on a regular basis at all three facilities. See, e.g., Complaint (Dkt. No. 1) ¶¶ 46, 53, 60, 67, 70, 71, 76, and 79; see also Crosby Aff. (Dkt. No. 63-1) ¶¶ 8, 10, 12, 14, 15.
The fact that Dr. Genovese considers plaintiff to have been "asymptomatic" for Hepatitis C does not address the question of why this diagnosis was not itself sufficient to warrant evaluation. Significantly, plaintiff was evaluated and treated for Hepatitis C following the October, 2004, positive test result, even though defendants do not appear to claim that he was "symptomatic" for Hepatitis C at that time.
Simply stated, defendants have not identified record evidence which demonstrates that there is no genuine dispute of material fact to be decided with respect to whether defendants knew of and disregarded an excessive risk to plaintiff's health. See Farmer, 511 U.S. at 837, 114 S.Ct. at 1979. I therefore recommend a finding that defendants have also failed to meet their initial burden on summary judgment with respect to the subjective prong of the Eighth Amendment analysis. Celotex, 477 U.S. at 323, 106 S.Ct. at 2553.
In sum, because defendants have not met their burden on summary judgment with respect to either prong of the Eighth Amendment analysis, I recommend that defendants' motion for summary judgment dismissing plaintiff's Eighth Amendment claims be denied.
C. Statute of Limitations
In the pending motion, defendants O'Connell, Magee, Edwards, Paolano, Smith and Nesmith also seek summary judgment dismissing plaintiff's claims against them as time-barred. Defendants' Memorandum (Dkt. No. 60-6) at p. 5. The moving defendants were responsible for plaintiff's health care while he was confined at Attica, and later at Great Meadow, all prior to August, 2001. Defendants argue that "those defendants who only had or could have only had some involvement in plaintiff's medical care prior to April 2, 2004 should be dismissed since the claims against them are time-barred." Id.
Plaintiff's complaint, which was filed in the Western District of New York on April 2, 2007, is undated. Dkt. Nos 1, 24. While not relevant to the present motion, the court notes that plaintiff is entitled to the benefit of the "mailbox" rule, according to which plaintiff would be deemed to have filed this action when he gave his original complaint to prison officials for mailing. See Houston v. Lack, 487 U.S. 266, 276, 108 S.Ct. 2379, 2385 (1988) (A pro se inmate's papers are deemed filed when the inmate gives the papers to prison officials for mailing).
Plaintiff opposes the requested dismissal. Relying on his claim that defendants "concealed" his Hepatitis C diagnosis from him, Crosby argues that his claim did not accrue, and the statute of limitations therefore did not start to run, until approximately February, 2006, when he first learned that he had tested positive for Hepatitis C in 1995. Plaintiff's Memorandum (Dkt. No. 63-2) at pp. 9-11.
The statute of limitations governing § 1983 claims arising in New York is three years. See Owens v. Okure, 488 U.S. 235, 251, 109 S.Ct. 573, 582 (1989); see also Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004). "Under federal law, which governs the [actual] accrual of claims brought under § 1983 . . ., a claim generally accrues once the plaintiff knows or has reason to know of the injury which is the basis of his action." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir. 1994) (internal quotations and citations omitted).
Although the doctrine is not mentioned in defendants' motion papers, I find that the timeliness of plaintiff's claims against the moving defendants cannot be determined without consideration of the "concept of fraudulent concealment of a cause of action." See Pearl v. City of Long Branch, 296 F.3d 76, 80 (2d Cir. 2002). While this long-standing doctrine admits of differing articulations, as either a matter related to accrual of a cause of action or a form of equitable relief from a limitations bar, see id., 296 F.3d at 83, federal courts have applied the fraudulent concealment doctrine to numerous federal causes of action. See, e.g., Pearl, 296 F.3d at 83-84 (police brutality); Pinaud v. County of Suffolk, 52 F.3d 1139, 1157-58 (2d Cir. 1995) (false arrest and malicious prosecution); Cerbone v. International Ladies' Garment Workers' Union, 768 F.2d 45, 48-49 (2d Cir. 1985) (age discrimination); Keating v. Carey, 706 F.2d 377, 381-82 (2d Cir. 1983) (discrimination based on political affiliation); Barrett v. United States, 689 F.2d 324, 327-30 (2d Cir. 1982) (Federal Tort Claims Act).
The significance of this distinction, which is not relevant to the present motion, is that where the fraudulent concealment is understood to postpone the accrual of a cause of action, it is properly a matter of federal law, whereas if it is considered an example of equitable estoppel, it is one of the state tolling rules that federal courts borrow in section 1983 cases. Pearl, 296 F.3d at 83-84.
Defendants have not presented any evidence regarding the applicability of the fraudulent concealment in this case, nor have they discussed relevant case law. Accordingly, I recommend that defendants' motion for summary judgment dismissing plaintiff's claims against O'Connell, Magee, Edwards, Paolano, Smith and Nesmith as time-barred be denied, based upon the existence of disputed issues of fact surrounding when plaintiff had reason to know of his injury, and whether defendants should be precluded under the fraudulent concealment doctrine from asserting a defense based on the statute of limitations.
D. Violation of State Law
Defendants claim that they are entitled to summary judgment dismissing those of plaintiff's claims arising under state law. Defendants maintain that such claims are neither cognizable under 42 U.S.C. § 1983, nor are they maintainable in light of the restrictions imposed by N.Y. Correction Law § 24. Defendants' Memorandum (Dkt. No. 60-6) at pp. 4-7.
While not broken out as separate causes of action, the state law claims intended by plaintiff to be included in his complaint appear to include both negligence and intentional torts of an unspecified nature. See, e.g., Complaint (Dkt. No. 1) ¶ 3.
To state a valid claim under section 1983, "a plaintiff must allege that (1) the challenged conduct was attributable at least in part to a person who was acting under color of state law and (2) the conduct deprived the plaintiff of a right guaranteed under the Constitution of the United States." Snider v. Dylag, 188 F.3d 51, 53 (2d Cir. 1999) (citing Dwares v. City of New York, 985 F.2d 94, 98 (2d Cir. 1993)). "A violation of a state law or regulation, in and of itself, does not give rise to liability under 42 U.S.C. § 1983." Cusamano v. Sobek, 604 F. Supp.2d 416, 482 (N.D.N.Y. 2009) (Suddaby, J.) (collecting cases).
Plaintiff's complaint includes numerous allegations that the defendants' conduct with respect to his medical care constituted "gross negligence" in violation of his constitutional rights. Complaint (Dkt. No. 1) ¶¶ 106-07, 109-10. Insofar as plaintiff's complaint seeks to assert state law negligence claims pursuant to section 1983, those clams are not cognizable, and I therefore recommend that they be dismissed. Cusamano, 604 F. Supp.2d at 482.
Plaintiff claims that defendants committed "intentional and gross negligence" when they (i) directed him to undergo two "painful" surgeries to "remove the inflammation caused by the potentially fatal disease Hepatitis C," (ii) misdiagnosed him with high blood pressure, (iii) prescribed anti-inflammatory medication "when he was suffering from Hepatitis C," and (iv) failed to provide him with Hepatitis C treatment. Complaint (Dkt. No. 1) ¶¶ 106-07, 109-10.
Although not properly brought under section 1983, plaintiff's negligence claims are appropriately asserted as pendent state law claims over which the court could exercise supplemental jurisdiction under 28 U.S.C. § 1367. When viewed in this light, however, plaintiff's claims implicate a state law provision by which New York has immunized DOCS employees from suits requiring them to personally answer state law claims for damages based on activities falling within the scope of the statute, providing that
1. [n]o civil action shall be brought in any court of the state, except by the attorney general on behalf of the state, against any officer or employee of [the DOCS], in his personal capacity, for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties by such officer or employee.
2. Any claim for damages arising out of any act done or the failure to perform any act within the scope of the employment and in the discharge of the duties of any officer or employee of DOCS shall be brought and maintained in the court of claims as a claim against the state.
N.Y. Correct. Law § 24; see also lerardi v. Sisco, 119 F.3d 183, 186-87 (2d Cir. 1997). Section 24 thus precludes claims against corrections officers brought against them in any court in their personal capacities arising out of the discharge of their duties. Baker v. Coughlin, 77 F.3d 12, 14-15 (2d Cir. 1996).
The immunity afforded under section 24 is not absolute; actions taken by corrections workers occurring during the course of their employment but wholly outside of their scope of employment, for example, lack the protection of that section. The circumstances presented in lerardi, for example, involving a claim of sexual harassment made by a special education teacher employed by DOCS against a corrections officer assigned to the same facility, serve aptly to illustrate the type of situation in which section 24 would not afford protection. lerardi, 119 F.3d at 188-89.
In Haywood v. Drown, ___ U.S. ___, 129 S.Ct. 2108 (2009), the Supreme Court recently held this provision unconstitutional to the extent it precludes inmates from pursuing § 1983 actions. In the wake of Haywood, one court in this district has observed that "[a] claim brought pursuant to a state law does not implicate the Supremacy Clause, and therefore, the Haywood decision does not affect the question of whether this Court has proper jurisdiction to hear [a] pendent state law claim." May v. Donneli, 9:06-cv-437, 2009 WL 3049613, at *5 (N.D.N.Y. Sept. 18, 2009) (Sharpe, J. Treece, M.J.). In that case, because the acts of the corrections officers, which were alleged to have violated New York Correction Law § 610, clearly fell within the scope of their employment, the court found that it lacked jurisdiction to hear such pendent state law claims. See id.
In this case plaintiff's pendent state law claims, alleging negligence and intentional torts in violation of New York common law, indisputably arise from actions taken by the defendants in their roles as DOCS employees. These types of claims have consistently been treated as giving rise to immunity from suit for pendent state law claims against DOCS personnel in their individual capacities, whether in state or federal court. See, e.g. Baker, 77 F.3d at 15-16 (plaintiff's pendent state law claims for intentional tort, negligence and malpractice were barred by § 24); Tafari v. Stein, No. 01CV0841, 2008 WL 1991039, at *8 (W.D.N.Y. May 5, 2008) (negligence claims against DOCS medical providers barred by § 24); Ruffin v. Deperio, 97 F. Supp.2d 346, 356 (W.D.N.Y. 2000) (granting defendants' motion for summary judgment on pendent state law claims for negligence and medical malpractice).
Because plaintiff's state law claims for negligence brought against each of the individual defendants in their personal capacity are neither cognizable under section 1983 nor permissible under section 24, I recommend that they be dismissed.
E. Status of Unserved Defendants
Defendants Takos and Forte, though named in plaintiff's complaint, have not been served with process and therefore are not yet parties to this action. I note, moreover, that according to plaintiff's complaint Dr. Forte died in approximately 2004, prior to the commencement of this action. Complaint (Dkt. No. 1) ¶ 77.
By order filed May 30, 2007, District Judge Charles J. Siragusa of the Western District directed that summonses be issued and served on the defendants by the U.S. Marshals Service. Dkt. No. 7. In that order, Judge Siragusa noted that Dr. Forte was deceased and acknowledged the court's "obligation to assist an incarcerated pro se litigant to obtain discovery necessary to identify an unidentified individual defendant in order to avoid dismissal." Id. at p. 2-3. Acknowledgment of service forms forwarded by the United States Marshal's Service to defendants Forte and Takos were returned unexecuted in June and July of 2007. Dkt. Nos. 8, 12. Shortly thereafter, plaintiff requested assistance from the Western District with service on those defendants. Dkt. Nos. 14, 16.
Upon transfer of this action to the Northern District of New York in October of 2007, those defendants remained unserved. By letter dated December 5, 2007, the clerk of the court requested the Office of DOCS Counsel to provide information it might have which could assist in locating Dr. Takos or in identifying Dr. Forte's legal representative. Dkt. No. 31. That inquiry was unproductive. Dkt. No. 36. At no time subsequent to the transfer of this action to the Northern District in October of 2007 has plaintiff communicated with the court regarding his desire to pursue this action against defendants Forte and Takos.
At the time of transfer, defendants Smith and O'Connell were also unserved. Those two defendants subsequently returned completed acknowledgment of service forms. Dkt. Nos. 38, 39.
Because Dr. Forte died prior to being served with the summons and complaint, he was never a party to this action and the procedure set forth in Rule 25 of the Federal Rules of Civil Procedure was not available as a means to add Forte's legal representative or successor as a party. See, e.g. Mizukami v. Buras, 419 F.2d 1319, 1320 (5th Cir. 1969); Davis v. Cawell, 94 F.R.D. 306, 307 (D.Del. 1982); Chorneyv. Callahan, 135 F.Supp. 35, 36 (D.Mass. 1955); 6 James Wm Moore, et al., MOORE'S FEDERAL PRACTICE § 25.10[1] (3d ed. 1997). Plaintiff could, however, have filed a motion seeking leave to file an amended complaint naming Dr. Forte's legal representative as a defendant in the action.
Rule 4(m) of the Federal Rules of Civil Procedure authorizes dismissal of an action without prejudice where a summons and complaint is not served within 120 days after filing of the complaint, absent a showing of good cause. Fed.R.Civ.P. 4(m). Rule 4(m) authorizes dismissal upon motion or sua sponte, provided that the court first gives notice to the plaintiff. Id.; Shusterv. Nassau Cty., No. 96 Civ. 3635, 1999 WL 9847, at *1 (S.D.N.Y. Jan. 11, 1999). The 120-day period for service of a summons and complaint by a plaintiff under Fed.R.Civ.P. 4(m) applies to pro se plaintiffs as well as those represented by counsel. Shuster, 1999 WL 9847, at *1; Romand v. Zimmerman, 881 F. Supp. 806, 809 (N.D.N.Y. 1995) (McAvoy, C.J.). In this regard, courts have generally recognized that the time period does not properly begin to run against a plaintiff proceeding in forma pauperis until the application has been acted upon. See Romand, 881 F. Supp. at 809-10.
Based upon the foregoing, and because the record does not indicate that plaintiff requested the assistance of this court in obtaining jurisdiction over Dr. Takos and/or Dr. Forte's legal representative, and in light of the fact that more than two years have elapsed since plaintiff commenced this action and was granted in forma pauperis status, I recommend dismissal of plaintiff's claims against those defendants in accordance with Rule 4(m).
The issuance of this report and recommendation will provide notice to plaintiff of the recommended dismissal of his claims against the unserved defendants, and afford him an opportunity to argue in his objections to the assigned district judge that in his view dismissal is not appropriate, and if so why.
IV. SUMMARY AND RECOMMENDATION
Having concluded that defendants have not met their initial burden to demonstrate that no genuine issues of material fact exist which respect to plaintiff's Eighth Amendment medical indifference claim, I therefore recommend that their motion for summary judgment seeking dismissal of that claim on the merits be denied. I also recommend that the motion be denied insofar as defendants O'Connell, Magee, Edwards, Paolano, Smith and Nesmith contend that plaintiff's claims against them are time-barred. Because allegations of state common law violations do not state a claim under section 1983, and when viewed as pendent tort claims they are precluded by New York Correction Law § 24, I recommend dismissal of all of plaintiff's claims that are premised upon violation of state law. Finally, I recommend that plaintiff's claims against defendants Takos and Forte be dismissed in accordance with Rule 4(m).
It is therefore hereby respectfully
RECOMMENDED that defendants' motion for summary judgment (Dkt. No. 60) be GRANTED, in part, and that plaintiff's state law claims against defendants be dismissed, but that the motion be DENIED in all other respects; and it is further
RECOMMENDED, that plaintiff's claims against defendants Takos and Forte be dismissed sua sponte, in accordance with Federal Rule of Civil Procedure Rule 4(m).
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the parties have fourteen days within which to file written objections to the foregoing report. Objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
The Clerk of the Court is directed to serve a copy of this report and recommendation upon the parties in accordance with the court's local rules.
Dated: February 22, 2010
Syracuse, NY