Opinion
05 CIV. 6998 (DLC).
October 10, 2006
Frank Barbaro, pro se, for Plaintiff.
Peter M. Skinner, Assistant United States Attorney, New York, NY, for defendants.
OPINION ORDER
Plaintiff Frank Barbaro ("Barbaro") brings this action to recover for injuries he allegedly suffered as a result of the inadequate medical care he received while incarcerated at the Federal Correctional Institution in Otisville, New York ("Otisville"). Defendants move to dismiss the amended complaint for lack of subject matter jurisdiction, insufficient service of process, and failure to state a claim under Rules 12(b)(1), 12(b)(5), and 12(b)(6), respectively, of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted in part and denied in part.
Background
The following facts are taken from the amended complaint. Barbaro is an inmate in the custody of the Federal Bureau of Prisons ("BOP"). Between January 1998 and December 2003, when the events at issue here transpired, Barbaro was incarcerated at Otisville. When plaintiff arrived at Otisville, he was suffering from a number of physical ailments, including herniated discs in his neck and back, and a "regularly dislocating" shoulder. These conditions were related to an automobile accident in which Barbaro was involved before arriving at Otisville, as well as degenerative joint disease. Barbaro provided paperwork to the Otisville medical staff documenting his medical issues.
In particular, Barbaro claims that he informed the medical staff that: (1) the herniated discs in his neck caused "daily pain, stiffness, range of motion deprivation, left arm tingling numbness, left arm muscle atrophy and right pectoral muscle atrophy creating physical deformity, nerve damage, sleep deprivation from pain, anxiety and stress," (2) the herniated discs in his back caused "daily pain, stiffness, debilitating pain extending down left leg creating walking impediment, range of motion deprivation, penile dysfunction, bladder dysfunction, nerve damage, sleep deprivation from pain, anxiety and stress," and (3) the "regularly dislocating" shoulder caused "daily pain, stiffness, impingement, decreasing range of motion, dislocating joint with increased pain, sleep deprivation from pain, limited use of right arm, anxiety and stress."
According to Barbaro, the medical staff failed to provide him with "the medically required and necessary treatment" for the neck, back, and shoulder injuries throughout his time at Otisville. In particular, he alleges that they refused to order magnetic resonance imaging scans ("MRIs") and "other diagnostic studies," evaluation by specialists, and various required surgeries. In addition, they did not offer him physical therapy or medication that would have alleviated his pain, despite the fact that he "reported his injuries to the . . . medical staff each and every week" that he resided at Otisville.
The amended complaint also alleges that members of the Otisville medical staff failed to provide Barbaro with appropriate treatment for a cyst on his foot, and that they prescribed medication that led to a hearing impairment. In his response to defendants' motion, however, Barbaro explicitly withdrew all claims based on these injuries.
Barbaro suggests that he should have been examined by neurosurgeons and orthopedic surgeons from the beginning of his incarceration. His only contact with such specialists during his time at Otisville was a visit with "Dr[.] Pearson," who is described as a "Contract Orthopedic Surgeon" in August 2003. According to Barbaro, Dr. Pearson ordered MRIs, X-rays, "nerve conduction studies," and consultation with a neurosurgeon. The Otisville medical staff, however, refused to provide any such treatment.
Barbaro claims that he filed "over one hundred" complaints with BOP between 1998 and 2003 regarding the medical treatment he was receiving. According to Barbaro, BOP officials' responses to at least some of these complaints contained "fabricated and deceptive facts" aimed at "withhold[ing] and prevent[ing] the medically required and necessary . . . treatment."
Barbaro highlights a handful of such statements in the amended complaint. For example, he claims that in a written response to an administrative appeal filed on May 21, 2003, BOP officials claimed that Barbaro was receiving "community standard" medical care, when they knew this not to be true. He also contends that in a similar written response filed on February 9, 2004, a BOP official stated that Barbaro was diagnosed with a "herniated dis[c]," even though the official "was aware that the Plaintiff's injuries were far more extensive" than that.
On December 30, 2003, Barbaro was transferred to a BOP medical center that offered "neurosurgical" treatment. On March 31, 2004, Barbaro was examined by a neurosurgeon, who concluded that Barbaro required surgery for his back injury. Barbaro claims that because of the sub-standard care he received during his years at Otisville, his neck, back, and shoulder injuries were "aggravated," and he now suffers from partial paralysis.
Although plaintiff ultimately appears to have received the treatment he desired at the new BOP facility, he claims that the transfer was made in order to shift blame for his injuries.
Barbaro filed this action on August 5, 2005, and amended his complaint on November 1. Barbaro brings a claim for medical malpractice against the Government pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. He brings two types of claims against the individually named defendants, pursuant toBivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for violations of his constitutional rights. First, Barbaro claims that members of the Otisville medical staff deliberately denied him necessary medical treatment in violation of the Eighth Amendment protection against cruel and unusual punishment. Second, he claims that BOP officials violated the Due Process Clause of the Fifth Amendment by fabricating information in their responses to official complaints Barbaro filed regarding his medical treatment. Defendants move to dismiss each of Barbaro's claims.
The motion is brought on behalf of defendants Dr. Kali Sundaram, Dr. Maryann Genovese, Hugo Sanchez ("Sanchez"), Jayne Vander Hey-Wright, Harrell Watts ("Watts"), M.E. Ray ("Ray"), Frederick Menifee ("Menifee"), and the United States of America (collectively, the "moving defendants"). In his amended complaint, Barbaro also names "Dr. Williams" as a defendant. The Office of the United States Attorney for the Southern District of New York, which serves as counsel for the moving defendants, represents that a BOP employee named Dr. Williams used to work at Otisville, but that the BOP has been unable to contact her to determine whether she wishes to be represented in this action by the Department of Justice. The United States Attorney therefore requests that the Court dismiss the claims against Dr. Williamssua sponte.
Discussion
I. FTCA Claim against the United States
On a motion to dismiss pursuant to Rule 12(b)(1), "[t]he plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. System, Inc., 426 F.3d 635, 638 (2d Cir. 2005). In evaluating the complaint, however, the court must "constru[e] all ambiguities and draw all inferences in [the] plaintiff's favor." Id.; see also Scheuer v. Rhodes, 416 U.S. 232, 238 (1974). This is particularly important when a plaintiff is proceeding pro se. In such cases, "a court is obliged to construe [the] pleadings liberally, particularly when they allege civil rights violations." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (citation omitted). "[A] district court may properly dismiss a case for lack of subject matter jurisdiction under Rule 12(b) (1) if it lacks the statutory or constitutional power to adjudicate it." Aurecchione, 426 F.3d at 638 (citation omitted).
The FTCA waives the federal government's sovereign immunity "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b) (1). A court must "look to state substantive law to determine whether the plaintiff has a valid cause of action."Syms v. Olin Corp., 408 F.3d 95, 107 (2d Cir. 2005). The statute of limitations for FTCA claims, however, is established by the act itself: a "tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues." 28 U.S.C. § 2401(b). This limitations period is "strictly construed." Johnson v. Smithsonian Inst., 189 F.3d 180, 189 (2d Cir. 1999) (citing United States v. Kubrick, 444 U.S. 111, 117-18 (1979)).
In the wake of the Supreme Court's recent decisions inEberhart v. United States, ___ U.S. ___, 126 S. Ct. 403 (2005) (per curiam), and Kontrick v. Ryan, 540 U.S. 443 (2004), circuit courts have been forced to revisit their previous holdings regarding which statutes of limitations are jurisdictional in nature. Although the Second Circuit has not explicitly addressed the effect of Eberhart and Kontrick on the categorization of the FTCA's two-year limitations period, the Federal Circuit recently reaffirmed the "well established" proposition that "statutes of limitations for causes of action against the United States, being conditions of the waiver of sovereign immunity, are jurisdictional in nature." John R. Sand Gravel Co. v. United States, ___ F.3d ___, 2006 WL 2267100, at *7 (Fed. Cir. Aug. 9, 2006) (citation omitted). This is consistent with prior decisions of the Second Circuit. See, e.g., Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) ("It is, of course, 'axiomatic' under the principle of sovereign immunity that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction." (Citation omitted.)). Defendants' motion to dismiss the FTCA claim will therefore be treated as a Rule 12(b) (1) motion regarding subject matter jurisdiction. This categorization does not, however, affect the outcome, since the analysis of the two-year limitations period would be the same even if the motion were brought under Rule 12(b)(6) for failure to state a claim.
"Ordinarily, a plaintiff's FTCA claim accrues at the time of injury." Kronisch v. United States, 150 F.3d 112, 121 (2d Cir. 1998). If, however, a plaintiff
would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted, . . . accrual may be postponed until the plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause.Corcoran v. New York Power Authority, 202 F.3d 530, 544 (2d Cir. 1999) (citation omitted). Such discovery does not require that the plaintiff have complete knowledge of "each and every relevant fact of [the] injury or even that the injury implicates a cognizable legal claim." Id. (citation omitted). He simply needs to know "the basic facts of the injury, i.e., knowledge of the injury's existence and knowledge of its cause or of the person or entity that inflicted it." Id. (citation omitted).
Barbaro first filed his administrative tort claim on March 1, 2004. Therefore, to the extent his FTCA claim accrued before March 1, 2002, it would be untimely under the two-year FTCA statute of limitations, and this Court would lack jurisdiction to address it. There can be no question that Barbaro was aware that he was not receiving the treatment that he believed was necessary as early as his first few months at Otisville. Indeed, Barbaro notes that he filed more than one hundred complaints about his care between 1998 and 2003. Furthermore, he states that he informed the medical staff "in each and every week of each and every year that his neck, back and shoulder injury required examination by a Neuro Surgeon [sic] and an Orthopedic Surgeon." (Emphasis supplied.) The BOP's failure to provide him with precisely these examinations is the basis of Barbaro's FTCA claim here. Therefore, it is beyond reasonable dispute that Barbaro knew the "critical facts of injury and causation" well before March 1, 2002.
The date of this filing is not clear on the face of the amended complaint. It appears in defendants' motion papers, however, and Barbaro does not contest it.
Barbaro attempts to get around this procedural bar by invoking the "continuous treatment doctrine," which recognizes that "where the plaintiff is in the continuing care of the negligent actor for the same injury out of which the FTCA cause of action arose, the statute of limitations may be tolled under certain circumstances until the end of treatment." Ulrich v. Veterans Admin. Hosp., 853 F.2d 1078, 1080 (2d Cir. 1988) (emphasis supplied). Although the Second Circuit has not provided an exhaustive list of circumstances under which a plaintiff might avail himself of the doctrine, it has discussed the two rationales that justify it: first, "that it is not reasonable to expect a patient who is in the continuing care of a doctor to discover that the doctor's acts may be the cause of his injuries"; and second, that it would be "absurd to expect a patient being treated by a doctor or hospital to interrupt corrective treatment by instituting suit against either while under their continuing care." Id. at 1080-81.
Neither rationale is implicated here. As noted above, Barbaro demonstrated repeatedly that he was aware of the alleged deficiency of the treatment he was receiving. Furthermore, his near constant complaints to prison officials about his treatment show that Barbaro was not afraid of taking issue with his doctors' decisions while in their care. Therefore, the continuous treatment doctrine does not apply here, and any claim based on events that occurred prior to March 1, 2002 is untimely and could not be addressed by the Court.
Barbaro's claim that defendants "concealed" from him the fact that he required "[d]ecompression surgery" on his back does not alter this conclusion. Throughout his time at Otisville, Barbaro complained that his injuries required treatment by both an orthopedic surgeon and a neurosurgeon. Given that a plaintiff "need not know each and every relevant fact of his injury" in order for a claim to accrue, Corcoran, 202 F.3d at 544, the fact that Barbaro lacked knowledge of the specific type of surgery he needed does not entitle him to have the statute of limitations for his FTCA claim tolled.
To the extent that Barbaro's claim is based on events that occurred after March 1, 2002, however, it is not barred by the FTCA's two-year statute of limitations. According to the amended complaint, BOP personnel continued to deny Barbaro necessary medical treatment until he was transferred to another facility in December 2003. In other words, defendants' alleged tortious acts continued into the limitations period.
Defendants err when they argue that Barbaro's claim is precluded altogether simply because he cannot invoke the continuous treatment doctrine. The cases cited by defendants address scenarios in which a patient suffered an injury because of an error in his medical treatment or diagnosis. See, e.g., McCoy v. United States, 264 F.3d 792, 793 (8th Cir. 2001) (plaintiff not entitled to invoke the continuous treatment doctrine when he knew prior to the limitations period that defendant's failure to diagnose vascular disease had resulted in the amputation of his leg); DeGirolamo v. United States, 518 F.Supp. 778, 780 (E.D.N.Y. 1981) (plaintiff not entitled to toll statute of limitations beyond point at which he learned that knee pain was caused by cartilage that had not been properly removed during surgery). In such situations, the claim accrues at the time the error was made or at the time the patient became aware of the injury and its cause. Corcoran, 202 F.3d at 544. In either case, it accrues only once. Here, however, Barbaro does not complain of a single error, but rather of a series of repeated refusals to provide him with the necessary treatment. Each time Barbaro requested and was denied treatment, then, his claim accrued anew. As a result, his inability to invoke the continuous treatment doctrine does not prevent him from bringing a claim for the acts that occurred within the limitations period. The motion to dismiss the FTCA claim will therefore be denied.
II. Bivens Claims Against the Individual Defendants
Dismissal of a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is proper "only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations" set forth therein.Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (citation omitted). Under the pleading standard set forth in Rule 8(a) of the Federal Rules of Civil Procedure, a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "[A] plaintiff is required only to give a defendant fair notice of what the claim is and the grounds upon which it rests." Leibowitz v. Cornell Univ., 445 F.3d 586, 591 (2d Cir. 2006). In addition, "[i]t is well-established that when a plaintiff proceeds pro se . . . a court is obliged to construe his pleadings liberally, particularly when they allege civil rights violations."Hemphill, 380 F.3d at 687 (citation omitted).
A. Eighth Amendment Claims
Barbaro alleges that certain individual defendants acted with "deliberate indifference" in denying him appropriate medical treatment, in violation of his Eighth Amendment rights. These claims arise from essentially the same factual allegations as the FTCA claim addressed above. For Bivens claims such as these, "[w]hile state law supplies the statute of limitations period, federal law determines when a federal claim accrues." Kronisch, 150 F.3d at 123 (citation omitted). When they arise in New York,Bivens claims are subject to a three-year statute of limitations. Ish Yerushalayim v. United States, 374 F.3d 89, 91 (2d Cir. 2004) (per curiam). Therefore, Barbaro's claims would be time-barred to the extent they accrued before August 5, 2002 — three years prior to the filing of his complaint in this action.
As discussed above, Barbaro was aware of the injuries he was suffering as a result of the alleged deficiencies in his medical care well in advance of this cut-off date. To the extent the continuous treatment doctrine is even applicable outside the context of professional malpractice, see, e.g., West v. City of New York, No. 88 Civ. 1801 (CSH), 1992 WL 249966, at *5 (S.D.N.Y. Sept. 22, 1992) (questioning applicability of continuous treatment doctrine to "deliberate indifference" claims), Barbaro is not entitled to use it here for the same reasons he cannot avail himself of the doctrine in connection with his FTCA claim. Barbaro also argues that the statute of limitations on his Eighth Amendment claims should be tolled under the Supreme Court's decision in Hardin v. Straub, 490 U.S. 536, 538 (1989), which gives effect to state-law tolling provisions in the context of federal civil rights claims. Barbaro does not, however, identify which New York tolling provision he seeks to invoke, and the Court is not aware of any that would be applicable here.
Although Barbaro therefore cannot bring a claim based on events that happened before August 5, 2002, there is no reason he cannot bring a claim based on events that happened after that date, since those events fell within the limitations period. The motion to dismiss the Eighth Amendment claims is therefore denied.
B. Fifth Amendment Claims
Barbaro claims that his Fifth Amendment due process rights were violated when BOP officials denied at least some of the one hundred written requests and complaints he made regarding his treatment. Barbaro's allegations in connection with this claim are extremely vague. Although he complains that BOP officials made false statements in connection with their denials of his requests, it appears that his true objection pertains to the outcome — i.e., the continued refusal to provide Barbaro with the treatment he claimed to require — rather than to the factual findings on which the BOP's decisions rested. These claims are substantially the same as Barbaro's Eighth Amendment claims and will be dismissed as duplicative. See Conn v. Gabbert, 526 U.S. 286, 293 (1999) ("[W]here another provision of the Constitution provides an explicit textual source of constitutional protection, a court must assess a plaintiff's claims under that explicit provision and not the more generalized notion of 'substantive due process.'" (Citation omitted.)).
C. Personal Involvement of the Individual Defendants
Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to Bivens liability. Barbera v. Smith, 836 F.2d 96, 99 (2d Cir. 1987). As with any element of the claim, the plaintiff's allegations need do no more than simply provide "fair notice" to the defendants of the basis of the action. Swierkiewicz, 534 U.S. at 514. As the Second Circuit observed,
[h]owever unlikely it may appear to a court from a plaintiff's complaint that he will ultimately be able to prove an alleged fact . . ., the court may not go beyond FRCP 8(a) (2) to require the plaintiff to supplement his pleadings with additional facts that support his allegation.Phelps v. Kapnolas, 308 F.3d 180, 186-87 (2d Cir. 2002).
Defendants argue that Barbaro's allegations regarding defendants Watts, Menifee, and Ray are insufficient to state a claim against them. Barbaro asserts that Watts, Menifee, and Ray "fabricated" and "falsified" their responses to his complaints in order to deny him appropriate medical care. Such actions would constitute sufficient personal involvement in the alleged violations of Barbaro's rights for Watts, Menifee, and Ray to remain defendants in this action.
Menifee is not named in the caption of the amended complaint, but Barbaro refers to him as a "defendant" throughout the document. Recognizing that plaintiff appeared "to be attempting to state claims against Mr. Menifee in the body of his complaint," the defendants brought this motion on behalf of Menifee, as well.
Barbaro's only allegation regarding Sanchez, however, is that he "documented the Plaintiff's shoulder injury." This is not enough to provide Sanchez with fair notice of the basis for the claims against him. Ordinarily, the plaintiff would be given leave to amend to cure the deficiency in his pleading. Because the defendants clearly identified the deficiency in Barbaro's pleading of his claim against Sanchez, and Barbaro's opposition to the motion did not suggest that he could cure the defect, the charges against Sanchez will therefore be dismissed. Conclusion
The Court reserves judgment on defendants' argument that none of the individual defendants (with the exception of Watts) was properly served with the amended complaint.
For the foregoing reasons, the motion to dismiss the amended complaint is granted with respect to the Fifth Amendment claim against all defendants and the Eighth Amendment claim against Sanchez. The motion is denied with respect to the FTCA claim against the United States and the Eighth Amendment claim against the remaining defendants. This action is referred to Magistrate Judge Katz for all further pretrial proceedings. All correspondence and requests should be sent to the attention of Judge Katz.
SO ORDERED.