Opinion
08 Civ. 00559 (JSR) (KNF).
December 24, 2008
REPORT and RECOMMENDATION
I. INTRODUCTION
On September 24, 2007, James Anderson ("Anderson") commenced this pro se action, brought pursuant to 42 U.S.C. § 1983 ("§ 1983"), alleging Doctors "Romano," Carl "Koenigsmann" ("Koenigsmann"), and "Bernstein" (collectively "defendant-doctors"), all of whom are employed at the Green Haven Correctional Facility ("GHCF") — violated his constitutional rights by exhibiting deliberate indifference to his medical needs. Anderson also names Commissioner Glenn Goord ("Goord") as a defendant.
Anderson's complaint was received by the Pro Se Office on October 1, 2007, and was filed on January 22, 2008. However, "apro se prisoner's § 1983 complaint is deemed filed, for statute of limitations purposes, when it is delivered to prison officials." Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999);see also Houston v. Lack, 487 U.S. 266, 276, 108 S. Ct. 2379, 2385 (1988) (finding that a notice of appeal "was filed at the time petitioner delivered it to the prison authorities for forwarding to the court clerk"). Anderson's complaint contains an affirmation stating the complaint was delivered to prison authorities, to be mailed to the Pro Se Office of this court, on September 24, 2007. As a result, the Court deems Anderson's complaint filed on September 24, 2007.
The caption bears an incorrect spelling of Koenigsmann's name.
Before the Court is Goord's and Koenigsmann's ("the movants") motion for an order dismissing Anderson's complaint, made pursuant to Federal Rule of Civil Procedure 12(b)(6). The movants contend they are entitled to the relief they seek because: (1) Anderson's deliberate indifference to his medical needs claim is untimely, because the claim accrued on July 20, 2004, and his § 1983 complaint was filed more than three years after that date; (2) Anderson's retaliation claim is untimely, because he was transferred from GHCF on September 2, 2004, and more than three years elapsed before he filed his § 1983 complaint; (3) Anderson's retaliation claim is unexhausted; (4) Anderson failed to allege Goord's personal involvement in the alleged constitutional violations; and (5) Goord is shielded from liability by the doctrine of qualified immunity. Goord also moves for an extension of time, nunc pro tunc, to file the motion to dismiss in response to the complaint.
The motion to dismiss states, in a footnote, the argument that Anderson's claims are time-barred, under the statute of limitations, "would apply to [Romano and Bernstein] as well, and the Court has discretion to dismiss the claims against them on th[is] bas[i]s."
The movants' motion is analyzed below.
II. BACKGROUND AND PROCEDURAL HISTORY
In his complaint, the plaintiff alleges that, in 2001, he tested positively for Hepatitis C; however, he was not informed of his test results, nor did he receive any treatment for Hepatitis, until July 20, 2004. The plaintiff states that, on July 20, 2004, he was "advised to submit to treatment for Hepatitis (B)." The plaintiff contends the defendant-doctors: (1) were deliberately negligent; (2) provided an improper diagnosis; (3) failed to provide proper medical care and medication by "covering up their knowledge that [Anderson] tested positive[ly] in 2001 for Hepatitis (C)"; and (4) caused Anderson to endure severe pain, experience "continuous paralysis in [his] arms, chest, back and legs," and lose weight. Additionally, the plaintiff maintains that, because he filed a grievance, he was retaliated against by being transferred, on September 2, 2004, to the Auburn Correctional Facility ("ACF") despite his "Medical Hold" status at GHCF. The plaintiff has asserted he grieved all the claims raised in his § 1983 complaint, and noted that, annexed to his complaint, are copies of his grievance and the resulting decisions. The plaintiff requests compensatory and punitive damages as relief. The plaintiff did not make any allegations, in his complaint, regarding Goord.
As noted above, attached to the plaintiff's complaint is a grievance dated July 20, 2004, the determination reached by GHCF personnel on the grievance and the plaintiff's appeals from that determination. In his grievance, the plaintiff stated he had tested positively for a "life threatening condition" "as early as 2001." The plaintiff stated further that he was "filing this grievance because [he] was given (today) a book and literature that makes [him] aware [of] how serious this problem really is," and because he "was not told how dangerous [his] situation really is." Also attached to the plaintiff's complaint is a hand-written document, created by the plaintiff, which states that, in or around September 2004, he "had been receiving medication," and that, on September 2, 2004, he was transferred to ACF.
On June 20, 2008, the movants filed the instant application, in which Goord requested that he be granted an extension of time,nunc pro tunc, to file this motion for dismissal. Goord noted his response to the complaint was due on or before June 9, 2008. In July 2008, an order was issued by the Court, directing Anderson to file his response to the movants' application, on or before August 25, 2008. Anderson twice moved for extensions of time to file his response; both requests were granted. His final deadline for filing a response was October 31, 2008. Anderson failed to file a timely response.
III. DISCUSSION
A court may dismiss an action, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief may be granted, if the plaintiff has failed to plead "enough facts to state a claim to relief that is plausible on its face." See Bell Atlantic Corp v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level." Id. at 1965. Where, as here, the plaintiff is proceeding pro se, the court must construe his complaint liberally and "interpret [it] to raise the strongest arguments it suggests." Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
When considering a motion to dismiss, a court must accept all material factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. See Iqbal v. Hasty, 490 F.3d 143, 152 (2d Cir. 2007). Additionally, when assessing a motion pursuant to Fed.R.Civ.P. 12(b)(6), consideration is limited "to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999). "If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff's failure to respond to a Rule 12(b)(6) motion does not warrant dismissal." McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000).
Statute of Limitations for § 1983 Claims
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). The equitable doctrine of tolling a statute of limitations applies "where a plaintiff has been prevented in some extraordinary way from exercising his rights," such that he "could show that it would have been impossible for a reasonably prudent person to learn about his or her cause of action." Pearl v. City of Long Beach, 296 F.3d 76, 85 (2d Cir. 2002) (internal quotations, emphasis, and citations omitted).
A. Deliberate Indifference Claims
Liberally construing the plaintiff's complaint, Anderson claims the defendant-doctors: (a) violated his constitutional rights; (b) were deliberately negligent; (c) provided improper medical care and diagnosis; (d) failed to provide him with medication; and (e) attempted to "cover up" their negligence in failing to inform and treat him for his Hepatitis C condition, from the time he tested positively, in 2001, to the time Anderson was informed of his condition, on July 20, 2004.
For the purpose of calculating the statute of limitations, the Court credits September 24, 2007, as the date Anderson "filed" his complaint — for Anderson affirmed he submitted his complaint to prison authorities for mailing on this date, see Tapia-Ortiz, 171 F.3d at 152 — and July 20, 2004, as the date Anderson first "kn[e]w[] or ha[d] reason to know of the injury which is the basis of his action," Cornwell, 23 F.3d at 703 (internal citations omitted). From July 20, 2004, to September 24, 2007, three years, and sixty-six days elapsed. Therefore, the plaintiff's § 1983 deliberate indifference claim was not filed within the three-year limitations period. See Patterson, 375 F.3d at 225.
It is not entirely clear whether the statute of limitations for a civil rights claim by an incarcerated inmate is tolled while an inmate exhausts his administrative remedies by filing an inmate grievance(s). See e.g. Taylor v. N.Y.S. Dep't of Corr., No. 03 Civ. 1929, 2004 U.S. Dist. LEXIS 25795, at *29-33, 2004 WL 2979910, at *10-11 (S.D.N.Y. Dec. 22, 2004) (acknowledging Thomas v. Capt. Henry, but finding 42 U.S.C. § 1997e(a)'s exhaustion requirement was a "statutory prohibition" that gave rise to tolling, of the three-year statute of limitations applicable to § 1983 claims, for the period during which the plaintiff was exhausting administrative remedies); but see Thomas v. Capt. Henry, No. 02 Civ. 2584, 2002 U.S. Dist. LEXIS 8086, at *4, 2002 WL 922388, at *2 (S.D.N.Y. May 7, 2002) (finding that, in the context of a § 1983 claim arising in New York, "'the pendency of a grievance . . . does not toll the running of the limitations period[]'") (quoting Delaware State College v. Ricks, 449 U.S. 250, 261, 101 S. Ct. 498, 505-06 [considering tolling, in the context of an employment discrimination case, based upon Title VII and 42 U.S.C. § 1981 claims]).
"[D]raw[ing] all reasonable inferences in the plaintiffs favor," Iqbal, 490 F.3d at 152, it appears that dismissal of the plaintiff's § 1983 deliberate indifference claim as untimely would be improper. If the period during which the plaintiff exhausted his administrative remedies tolled the statute of limitations, see Taylor, 2004 U.S. Dist. LEXIS 25795, id. the plaintiff's deliberate indifference claim was filed timely. Based upon the documents appended to the plaintiff's complaint, see Leonard F., 199 F.3d at 107, the plaintiff's grievance is dated July 20, 2004, and the final decision on the plaintiff's grievance is dated September 29, 2004. From July 20, 2004, to September 29, 2004, seventy-one days elapsed. Since, as noted above, the plaintiff's complaint was filed sixty-six days after the statute of limitations expired, tolling the period, during which the plaintiff exhausted his administrative remedies, renders the plaintiff's deliberate indifference claim timely, under the statute of limitations. Therefore, granting the movants' request, for an order dismissing the plaintiff's deliberate indifference claim, is not warranted.
The movants argue the plaintiff's grievance was not filed until July 21, 2004. Even if the Court credits this date, seventy days elapsed during which the plaintiff exhausted his administrative remedies, and tolling this period renders the plaintiff's deliberate indifference claim timely, under the statute of limitations.
B. Retaliation Claim
Insofar as Anderson contends his September 2, 2004 transfer from GHCF to ACF was retaliatory, this claim is untimely. Assuming, arguendo, Anderson first learned of his transfer on the date of his transfer, September 2, 2004, see Cornwell, 23 F.3d at 703, three years and 22 days elapsed between the time he learned of this claim and September 24, 2007, the date on which his § 1983 complaint is deemed filed.
A prisoner's ability to initiate a § 1983 action is constrained by 42 U.S.C. § 1997e, as amended by the Prisoner Litigation Reform Act. 42 U.S.C. § 1997e(a) provides, in relevant part, that:
No action shall be brought with respect to prison conditions under section 1983 . . . or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
"[A] prisoner must exhaust his or her administrative remedies prior to filing a claim under § 1983." Richardson v. Goord, 347 F.3d 431, 434 (2d Cir. 2003). While the plaintiff's deliberate indifference claim appears to be timely, based upon the tolling of the period during which he pursued his administrative remedies, the plaintiff's complaint does not indicate he filed a grievance regarding his retaliation claim. As a result, no basis is apparent, from the face of the complaint, to warrant tolling. The plaintiff's retaliation claim is both time-barred and unexhausted, and granting the movants relief on this claim, pursuant to Fed.R.Civ.P. 12(b)(6), is proper.
C. Commissioner Goord
Motion for an Extension to File a Response
"A defendant must serve an answer . . . within 20 days after being served with the summons and complaint." Fed.R.Civ.P. 12(a)(1)(A)(i). "When an act may or must be done within a specified time, the court may, for good cause, extend the time: . . . on motion made after the time has expired if the party failed to act because of excusable neglect." Fed.R.Civ.P. 6(b)(1)(B). In assessing excusable neglect, a court should consider: (1) the danger of prejudice to the opposing party; (2) the length of the delay, and its potential impact on the judicial proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. See Tancredi v. Metro. Life Ins. Co., 378 F.3d 220, 228 (2d Cir. 2004). "Excusable neglect" is an "elastic concept," id. (internal quotations omitted), and "mere inadvertence, without more, can in some circumstances be enough to constitute 'excusable neglect' justifying relief under Rule 6(b)[(1)(B)]," Raymond v. Int'l Bus. Machines Corp., 148 F.3d 63, 66 (2d Cir. 1998) (emphasis in original). Here, Goord's motion to dismiss was filed nine days after his responsive pleading was due. The danger of prejudice to the plaintiff, based on this delay, and the length of the delay, are slight, and this delay is unlikely to have any impact on the judicial proceedings. See Tancredi, 378 F.3d at 228. Goord's motion does not make clear why the delay occurred; nor does it demonstrate that he is acting in good faith. See id. However, since "'excusable neglect' may extend to inadvertent delays," Raymond, 148 F.3d at 66, and the delay in this case is short, no prejudice is apparent, and the plaintiff has not challenged this delay, in the circumstance of the case at bar, these factors militate in favor of granting Goord's request to file the motion to dismissnunc pro tunc.
Personal Involvement
"It is well settled in this Circuit that personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983." Johnson v. Newburgh Enlarged School District, 239 F.3d 246, 254 (2d Cir. 2001) (quoting Colon v. Coughlin, 58 F.3d 865, 873 [2d Cir. 1995]) (internal quotations omitted). In order to demonstrate personal involvement by a supervisory defendant, a plaintiff may present evidence showing:
(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring.Colon, 58 F.3d at 873.
Anderson's complaint does not contain any allegations relating to Goord; nor does it appear that Goord reviewed the grievance attached to Anderson's complaint. Since Anderson has not demonstrated Goord's personal involvement in the alleged constitutional deprivations, granting the motion to dismiss, as to Goord, would be reasonable and appropriate. See e.g., Hernandez v. Goord, 312 F. Supp. 2d 537, 547 (S.D.N.Y. 2004) (dismissing the complaint against Goord since the "[p]laintiff fails to allege any specific claim of personal involvement against Goord; indeed, he does not mention him at all in the body of the complaint but for including his name in a lengthy list of defendants"). Inasmuch as Anderson's failure to allege Goord's personal involvement in the alleged constitutional violations provides a sufficient basis for dismissing his complaint, pursuant to Fed.R.Civ.P. 12(b)(6), the Court need not address the additional argument, that Goord is shielded from liability by the doctrine of qualified immunity.
IV. RECOMMENDATION
For the reasons set forth above, it is recommended that: (1) Goord's motion for an extension of time to file the motion to dismiss, nunc pro tunc, be granted; and (2) the movants' application for an order dismissing the complaint, for failure to state a claim, Docket Entry No. 6, be: (a) denied with respect to the plaintiff's deliberate indifference claim against Koenigsmann, and (b) granted in relation to all claims asserted against Goord.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Jed S. Rakoff, 500 Pearl Street, Room 1340, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Rakoff. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).