Opinion
6:21-CV-6690 EAW
2022-09-12
Victor PERKINS, Plaintiff, v. ROCHESTER GENERAL HOSPITAL, Defendant.
Victor Perkins, Washington, DC, Pro Se. Aimee LaFever Koch, Osborn, Reed & Burke, LLP, Rochester, NY, for Defendant.
Victor Perkins, Washington, DC, Pro Se. Aimee LaFever Koch, Osborn, Reed & Burke, LLP, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, Chief Judge
Pro se plaintiff Victor Perkins ("Plaintiff") brings this action against defendant Rochester General Hospital ("Defendant"), alleging violation of his civil rights pursuant to 42 U.S.C. § 1983, for inadequate medical care he received in connection with an ankle injury, as well as state law claims for intentional infliction of emotional distress ("IIED") and fraud. (Dkt. 1 at 5-7). Presently before the Court is Plaintiff's motion for a default judgment (Dkt. 5) and Defendant's motion to dismiss (Dkt. 8). For the reasons explained below, Plaintiff's motion for a default judgment is denied, and Defendant's motion to dismiss is granted. However, Plaintiff may file an amended complaint consistent with this Decision and Order within 45 days of entry of this Order.
BACKGROUND
The following facts are taken from Plaintiff's complaint (Dkt. 1), which the Court construes broadly. See Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) ("It is well settled that pro se litigants generally are entitled to a liberal construction of their pleadings, which should be read to 'raise the strongest arguments that they suggest.' " (citation omitted)). As required at this stage of the proceedings, the Court treats Plaintiff's allegations as true.
On November 7, 2009, Plaintiff was the victim of an alleged assault by correctional officers at Great Meadow Correctional Facility, during which he sustained a fracture to his left medial malleolus bone in his ankle. (Dkt. 1 at ¶¶ 2, 6). Thereafter, on November 16, 2009, Plaintiff underwent surgery for his injury with Dr. Rubinovich at Rome Memorial Hospital. (Id. at ¶¶ 2, 7). At that time, and on various occasions thereafter, including on April 20, 2016, Plaintiff "was informed that his medial malleolus bone had been repaired during his surgery and that the hardware used to repair the bone were two screws and two washers, when actually [his] medical malleolus bone was removed and the hardware used to replace the bone were two screws, two washers, a plate, and pins." (Id. at ¶ 2; see also id. at ¶¶ 7-9, 11). Plaintiff further alleges that on October 13, 2012, he "pushed down on what appeared to be his medial malleolus bone and said bone began to indent," and at this time he "first discovered his injury." (Id. at ¶ 10).
Thereafter, on April 20, 2016, Plaintiff had an x-ray taken of his left ankle at Rochester General Hospital, at which time Defendant gave him the same "false image" he previously received from Rome Memorial Hospital and Dr. Rubinovich. (Id. at ¶ 12). Plaintiff sent a letter regarding the full extent and/or severity of his injury to Rome Memorial Hospital on April 25, 2016, but in response the hospital sent him the same false image on a disc. (Id. at ¶ 13). Thereafter, Plaintiff complained to Highland Hospital on October 20, 2017; Strong Memorial Hospital on May 18, 2018; and to George Washington University Hospital on May 6, 2020, regarding information he received relating to his ankle injury. (Id. at ¶ 14). Plaintiff alleges that "every medical record, and x-ray image on [his] injury except for exhibit D-2, are false and were made within a deceptive nature to secure unfair and unlawful gain that deprived the plaintiff of his legal right to suit." (Id. at ¶ 16). As a result of these alleged misrepresentations about the nature of his injury, Plaintiff has experienced pain when running and walking, as well as lifting limitations. (Id.).
Plaintiff alleges that Defendant assisted the state, Rome Memorial Hospital, and Dr. Rubinovich in falsifying medical records and x-ray images of his injury. (Id. at ¶ 2). As a result, Defendant "intentionally, wrongfully, and willfully, concealed the full extent and/or severity of [his] injury," thus "denying him adequate medical care" for the injury. (Id. at ¶ 2; see also id. at ¶ 16).
PROCEDURAL HISTORY
Plaintiff filed his complaint on November 12, 2021. (Dkt. 1). On January 13, 2022, Plaintiff moved for Clerk's Entry of Default (Dkt. 3), which the Clerk entered on January 14, 2022 (Dkt. 4). Plaintiff filed a motion for a default judgment on January 19, 2022. (Dkt. 5). The Court set a response deadline of February 18, 2022. (Dkt. 6).
On February 14, 2022, Defendant filed a motion to dismiss the complaint. (Dkt. 8). The Court issued a scheduling order, setting a response deadline of March 15, 2022. (Dkt. 9). The docket reflects that the scheduling order was mailed to Plaintiff, but he did not file a response in opposition to Defendant's motion to dismiss.
DISCUSSION
I. Motion for Default Judgment
Federal Rule of Civil Procedure 55 sets forth the procedural steps for entry of a default judgment. First, a plaintiff must seek entry of default where a party against whom it seeks affirmative relief has failed to plead or defend in the action. Fed. R. Civ. P. 55(a). Plaintiff has obtained entry of default against Defendant. (Dkt. 4). "Having obtained a default, a plaintiff must next seek a judgment by default under Rule 55(b)." New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005); see also Fed. R. Civ. P. 55(b). "Once found to be in default, a defendant is deemed to have admitted all of the well-pleaded allegations in the complaint pertaining to liability." Philip Morris USA Inc. v. 5 Bros. Grocery Corp., No. 13-CV-2451 (DLI)(SMG), 2014 WL 3887515, at *2 (E.D.N.Y. Aug. 5, 2014) (citation omitted).
"As the Second Circuit has noted, when determining whether to grant a default judgment, the Court is guided by the same factors which apply to a motion to set aside entry of default." Krevat v. Burgers to Go, Inc., No. 13-CV-6258, 2014 WL 4638844, at *5 (E.D.N.Y. Sept. 16, 2014) (citing Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 170-71 (2d Cir. 2001)). The three factors include: (1) "whether the defendant's default was willful"; (2) "whether the defendant has a meritorious defense to plaintiff's claims"; and (3) "the level of prejudice the non-defaulting party would suffer as a result of the denial of the motion for default judgment." Id. "[P]rior to entering default judgment, a district court is required to determine whether the [plaintiff's] allegations establish the [defendant's liability] as a matter of law." City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (internal quotations and citation omitted). Ultimately, "[t]he decision whether to enter default judgment is committed to the district court's discretion." Greathouse v. JHS Sec. Inc., 784 F.3d 105, 116 (2d Cir. 2015).
Defendant contends that Plaintiff failed to properly serve his summons and complaint in accordance with the applicable State or Federal rules. (Dkt. 8-2 at 12). Specifically, Defendant cites to Fed. R. Civ. P. 4(e)—which governs service of individuals, not a business, like Defendant—and argues that the "affidavit" of service submitted by Plaintiff is from a process server in Washington, D.C. and is not notarized, and therefore it has "no evidentiary value." (Id.). Plaintiff has not responded to this argument.
Pursuant to Fed. R. Civ. P. 4(h)(1), which governs service on a corporation, partnership, or association in a judicial district of the United States, any such entity may be served: (A) in the manner prescribed for serving an individual under subsection (e)(1) (which states that service may be accomplished by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made"), or (B) "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or any other agent authorized by appointment or by law to receive service of process and—if the agent is one authorized by statute and the statute so requires—by also mailing a copy of each to the defendant." See Fed. R. Civ. P. 4(h).
Defendant has not provided any authority for the notion that because the affidavit of service submitted by Plaintiff is from a process server in Washington, D.C., and is not notarized, service is rendered ineffective. The docket reflects that Plaintiff returned the executed summons, which includes an "Affidavit of Process Server," demonstrating that Defendant was served on December 7, 2021, by "delivering a conformed copy of the Summons in a Civil Action; Complaint; Civil Cover Sheet; Exhibits to Courtney Fountain as Senior Executive Assistant & Authorized Agent of Rochester General Hospital at 1360 Portland Ave., Rochester, NY 14621." (Dkt. 2). The affidavit also includes a description of the agent served and is signed by the process server under penalty of perjury. (Id.). Accordingly, without additional information or argument by Defendant further explaining how service was improper, the Court will not excuse Defendant's failure to timely respond to the complaint on the basis of improper service. However, considering the three aforementioned factors relevant to assessing the propriety of a default judgment, the Court concludes that granting Plaintiff a default judgment is not warranted.
Regarding the willfulness factor, Defendant appears to have not responded to the complaint because it believed that service was not proper (see Dkt. 8 at 12), and it timely responded to Plaintiff's motion for a default judgment, including by filing a motion to dismiss the complaint. In addition, as further explained below, and as outlined in its motion to dismiss, Defendant has meritorious defenses to Plaintiff's claims. Finally, given the early stage of the case, the Court does not find, nor has Plaintiff articulated, that he would be prejudiced from the denial of his motion. Accordingly, Plaintiff's motion for a default judgment is denied, and the Court will evaluate Defendant's motion to dismiss.
II. Motion to Dismiss
Defendant argues that Plaintiff's claims must be dismissed for the following reasons: (1) Plaintiff's § 1983 claim is barred by the statute of limitations; (2) Plaintiff's § 1983 claim must be dismissed because Defendant is not a "state actor"; (3) Plaintiff's IIED claim is untimely; (4) Plaintiff has failed to plausibly allege a claim for fraud; and (5) insufficient service of process. (Dkt. 8-2 at 8-12).
"In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010). A court should consider the motion by "accepting all factual allegations as true and drawing all reasonable inferences in favor of the plaintiff." Trs. of Upstate N.Y. Eng'rs Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566 (2d Cir. 2016). To withstand dismissal, a plaintiff must set forth "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim has 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." Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (internal quotations and citations omitted). "To state a plausible claim, the complaint's '[f]actual allegations must be enough to raise a right to relief above the speculative level.' " Nielsen v. AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014) (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). While the Court is "obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights violations," McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), even pleadings submitted pro se must satisfy the plausibility standard set forth in Iqbal and Twombly, see Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) ("Even after Twombly, though, we remain obligated to construe a pro se complaint liberally.").
A. Plaintiff's § 1983 Claim
1. Statute of Limitations
"In section 1983 actions, the applicable limitations period is found in the 'general or residual state statute of limitations for personal injury actions . . . .' " Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (alterations omitted) (quoting Owens v. Okure, 488 U.S. 235, 249-50, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989)). A § 1983 action filed in New York is subject to a three-year statute of limitations. Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Such a claim "ordinarily 'accrues when the plaintiff knows or has reason to know of the harm.' " Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (quoting Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994)).
Plaintiff has asserted a claim that Defendant was deliberately indifferent to his medical needs, and that he was denied adequate medical treatment with respect to the treatment of his ankle. Although Plaintiff identifies several occasions on which he was allegedly denied adequate medical treatment by various actors, he claims Defendant denied him adequate care by falsifying his medical records on April 20, 2016, when he had an x-ray taken of his ankle. (Dkt. 1 at ¶¶ 2, 12). Further, Plaintiff alleges that he was previously aware of the fact that his medical records were false—in other words, that his medial malleolus bone had been removed, and records and providers who suggested otherwise were not telling the truth—as far back as 2012. (Id. at ¶¶ 9-11). Specifically, Plaintiff alleges that on September 5, 2012, while he was housed at Southport Correctional Facility, he "received a medical document from Rome Memorial Hospital, stating that screws, washers, a plate and pins were placed in his left ankle," which "contradict[ed] the 11/16/2009 operative report" from his surgery performed by Dr. Rubinovich at Rome Memorial Hospital. (Id. at ¶ 9). Accordingly, by his own allegations, Plaintiff had knowledge of his injury on April 20, 2016, when Defendant allegedly provided him a false image of his ankle, and therefore his claim accrued at that time. However, Plaintiff did not file his complaint until November 12, 2021, more than five years after April 2016, and well beyond the three-year statute of limitations.
Plaintiff suggests in his complaint that "where there is a series of continuing wrongs, the statute of limitations will be tolled to the last date on which a wrongful act is committed," and that "the last date on which the plaintiff's injury was falsified was 5/6/2020," which he contends makes "said action against the defendant timely." (Dkt. 1 at ¶ 15). Plaintiff is referring to the fact that he complained of his knee injury at George Washington University Hospital on May 6, 2020. (Id. at ¶ 14). "To assert a continuing violation for statute of limitations purposes, the plaintiff must allege both the existence of an ongoing policy of [deliberate indifference to his or her serious medical needs] and some non-time-barred acts taken in the furtherance of that policy." Shomo, 579 F.3d at 182 (quotations and citation omitted). "This test screens out Eighth Amendment claims that challenge discrete acts of unconstitutional conduct or that fail to allege acts within the relevant statutory period that are traceable to a policy of deliberate indifference." Id.
Here, Plaintiff has failed to articulate the existence of an ongoing policy, and there are no allegations connecting any alleged conduct taken by George Washington University Hospital, to conduct allegedly taken by Rochester General Hospital. Rather, Plaintiff appears to allege discrete instances—each involving different medical facilities between 2012 and 2020—in which he allegedly received false information about the status of his ankle. Accordingly, Plaintiff has failed to plausibly allege any connection between the alleged conduct taken by Defendant and the conduct allegedly taken by George Washington University, such that he could articulate a continuing violation that would toll the statute of limitations until May 2020. See, e.g., Perkins v. Rome Mem'l Hosp., No. 6:20-CV-0196 (NAM/ATB), 2021 WL 1549987, at *3 (N.D.N.Y. Apr. 19, 2021) (dismissing Plaintiff's § 1983 claim against Rome Memorial Hospital, which arose from alleged injury in 2009, as barred by three-year statute of limitations, and finding that statute of limitations was not tolled by "continuing wrong" doctrine, because alleged wrong identified by plaintiff has having occurred on May 6, 2020 "was not committed by Defendants"). Accordingly, Plaintiff's § 1983 claim based on inadequate medical treatment and deliberate indifference is dismissed as untimely.
2. Defendant is not a "State Actor"
Even if Plaintiff's claim was timely, it may also be dismissed because he has failed to plead that Defendant is a state actor within the meaning of the statute. "An action under § 1983 has two elements: the defendant must (1) act under 'color of state law' to (2) deprive the plaintiff of a statutory or constitutional right." Kennedy v. New York, 167 F. Supp. 3d 451, 460 (W.D.N.Y. 2016) (citing Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004)). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.' " United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., AFL-CIO, 941 F.2d 1292, 1295 (2d Cir. 1991). As such, "[s]ection 1983 addresses only those injuries caused by state actors or those acting under color of state law." Spear v. Town of W. Hartford, 954 F.2d 63, 68 (2d Cir. 1992).
For the purposes of section 1983, the actions of a nominally private entity are attributable to the state when: (1) the entity acts pursuant to the "coercive power" of the state or is "controlled" by the state ("the compulsion test"); (2) when the state provides "significant encouragement" to the entity, the entity is a "willful participant in joint activity with the [s]tate," or the entity's functions are "entwined" with state policies ("the joint action test" or "close nexus test"); or (3) when the entity "has been delegated a public function by the [s]tate" ("the public function test").Sybalski v. Indep. Grp. Home Living Program, Inc., 546 F.3d 255, 257 (2d Cir. 2008) (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 296, 121 S.Ct. 924, 148 L.Ed.2d 807 (2001)).
Plaintiff makes the conclusory allegation that Defendant's actions in falsifying his medical records were done "at the behest of the state." (See Dkt. 1 at ¶ 2). However, he provides no further allegations to support a plausible inference that Defendant is a private entity acting under color of state law, or that Defendant had any connection to the state. See Perkins, 2021 WL 1549987, at *4 (finding that Plaintiff's claim against Rome Memorial Hospital and Dr. Rubinovich failed to identify relationship between the defendants and a state actor; although Plaintiff had alleged that the defendants' actions "were at the state's direct benefit and at their specific behest," explaining that these "conclusory allegations do not suggest any agreement between Defendants and Great Meadow Correctional Facility, beyond a simple contract to provide medical services"); see also Ciambriello v. Cnty. of Nassau, 292 F.3d 307, 324 (2d Cir. 2002) ("A merely conclusory allegation that a private entity acted in concert with a state actor does not suffice to state a § 1983 claim against the private entity."). Accordingly, Plaintiff's claim's § 1983 claim is dismissed for this reason as well.
B. Plaintiff's State Law Claims
The Court next turns to Plaintiff's state law claims for IIED and fraud. Plaintiff's IIED claim is subject to a one-year statute of limitations. Forbes v. Merrill Lynch, Fenner & Smith, Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) ("It is well established under New York law that a claim of intentional infliction of emotional distress has a one-year statute of limitations." (citation omitted)); see also Mariani v. Consol. Edison Co. of N.Y., Inc., 982 F. Supp. 267, 273 (S.D.N.Y. 1997) ("It is well established that the one-year statute of limitations set forth in CPLR § 215(3) for intentional torts is applicable to claims for intentional infliction of emotional distress."), aff'd, 172 F.3d 38 (2d Cir. 1998). As explained above, Plaintiff's claim against Defendant is based on conduct which allegedly occurred in April 2016, and Plaintiff filed this action in November 2021. Accordingly, as it is currently pleaded, Plaintiff's IIED claim is also time-barred.
Plaintiff has also failed to plausibly allege a claim for fraud. "Under New York law, to state a cause of action for fraud, a plaintiff must allege a representation of material fact, the falsity of the representation, knowledge by the party making the representation that it was false when made, justifiable reliance by the plaintiff and resulting injury." Lerner v. Fleet Bank, N.A., 459 F.3d 273, 291 (2d Cir. 2006) (quotations, citation, and alteration omitted). Further, pursuant to Rule 9(b) of the Federal Rules of Civil Procedure, Plaintiff is required to plead his fraud claim with particularity. See Fed. R. Civ. P. 9(b). To comply with Rule 9(b), Plaintiff must "(1) specify the statements that the plaintiff contends were fraudulent, (2) identify the speaker, (3) state where and when the statements were made, and (4) explain why the statements were fraudulent." Lerner, 459 F.3d at 290 (citation omitted).
Plaintiff alleges that on April 2016, Defendant made a representation about Plaintiff's injury which it knew was false, and that Plaintiff relied on this representation. (See Dkt. 1 at ¶ 28). Plaintiff's allegation that he relied on the false representation is conclusory, and it is also contradicted by his allegations that he was aware of the fact that his medical records were false as far back as 2012. (Id. at ¶¶ 9-11). Further, Plaintiff's general allegations that the information provided to him by Defendant was false fall far short of Rule 9(b)'s particularly requirement. For those reasons, Plaintiff has failed to state a claim for fraud.
"Under New York law, the statute of limitations for common law fraud is six years from accrual or two years from actual or imputed discovery." In re Bear Stearns Cos., Inc. Securities, Derivative, and ERISA Litig., 995 F. Supp. 2d 291, 309-10 (S.D.N.Y. 2014), aff'd, 829 F.3d 173 (2d Cir. 2016); see also Perkins, 2021 WL 1549987, at *3 (noting that Plaintiff's fraud claim was subject to two-year statute of limitations). Although Defendant does not raise the issue, Plaintiff's fraud claim also is arguably barred by the two-year statute of limitations, given that Plaintiff alleges he was aware of the falsity of the documents provided by Defendant in April 2016, and therefore his fraud claim would have expired two years later, in April 2018.
III. Leave to Amend
Generally, the Court will afford a pro se plaintiff an opportunity to amend or to be heard prior to dismissal "unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would succeed in stating a claim." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007) (internal quotation marks omitted); Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) (pro se plaintiffs, whether proceeding in forma pauperis or those who have paid the filing fee, should be permitted to at least once amend their complaint when it "gives any indication that a valid claim might be stated"). However, leave to amend pleadings is properly denied where amendment would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.").
Although skeptical that Plaintiff will be able to correct the deficiencies identified herein, the Court will err on the side of caution and afford Plaintiff an opportunity to amend his claims. As explained above, Plaintiff must provide additional, non-conclusory allegations demonstrating how his claims are timely and how Defendant is a state actor within the meaning of § 1983. Accordingly, Plaintiff may file an amended complaint consistent with this Decision and Order within 45 days of entry of this Order. Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in the action, and thus it "renders [the original complaint] of no legal effect." Int'l Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). Therefore, Plaintiff's amended complaint must include all necessary allegations so that it may stand alone as the sole complaint in the action.
CONCLUSION
For the foregoing reasons, Plaintiff's motion for a default judgment (Dkt. 5) is denied, and Defendant's motion to dismiss (Dkt. 8) is granted. Plaintiff's claims are dismissed without prejudice, and he is granted leave to file an amended complaint consistent with this Decision and Order within 45 days of entry. The Clerk of Court is directed to send to Plaintiff with this Order a copy of the complaint, a blank § 1983 complaint form, and the instructions for preparing an amended complaint. If Plaintiff fails to file an amended complaint within 45 days as directed above, the complaint is dismissed with prejudice, and the Clerk of Court is directed to close this case without further order.
SO ORDERED.