Brown v. Outhouse

Full title: KARO BROWN, Plaintiff, v. ROBERT OUTHOUSE, Sheriff Cayuga County; C.O…

Court: United States District Court, N.D. New York

Date published: Jun 10, 2009

No. 9:07-cv-1169 (GLS/GHL) (N.D.N.Y. Jun. 10, 2009)

Opinion

No. 9:07-cv-1169 (GLS/GHL).

June 10, 2009

FOR THE PLAINTIFF: Karo Brown, Pro Se, 58105-066, Canaan-US Penitentiary, Inmate Mail/Parcels, Waymart, PA.

FOR THE DEFENDANTS: CHARLES E. SYMONS, ESQ., OFFICE OF FRANK W. MILLER, East Syracuse, NY.

MEMORANDUM-DECISION AND ORDER

GEORGE LOWE, Magistrate JudgePage 2

I. Introduction

The above-captioned matter comes to this court following a Report-Recommendation and Order ("R R") by Magistrate Judge George H. Lowe, filed January 15, 2009. (Dkt. No. 21.) The R R¹ recommended that defendants' motion to dismiss be granted in part and denied in part. Pending are Brown and the defendants' objection² to the R R. (Dkt. Nos. 25, 26.) For the reasons that follow, the R R is adopted in part and rejected in part.

1 The Clerk is directed to append the R R to this decision, and familiarity therewith is presumed.

2 Defendants' only objection involves Brown's untimely objections. Given his pro se status, Brown's tardiness in filing his objections will be excused.

II. Background

Karo Brown, an inmate at Canaan U.S. Penitentiary, brings this action pursuant to 42 U.S.C. § 1983, alleging that the defendants violated his constitutional rights and New York state law when he was: (1) assaulted; (2) denied adequate medical care; and (3) denied due process during a disciplinary hearing. ( See generally Compl.; Dkt. No. 1.) On March 14, 2008, the defendants filed a motion to dismiss³ pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing inter alia that Brown's New York claims are barred by the statute of limitations⁴ and that he failed to allege the defendants' personal involvement in the medical care claim. Brown opposed the motion.

3 Judge Lowe granted the defendants' request to have their motion considered in lieu of an answer. (Dkt. No. 13.) On January 20, 2009, the defendants filed an answer. (Dkt. No. 22.)

4 The defendants also argued Brown's constitutional claims were barred by the statute of limitations. The defendants have since withdrawn this argument. ( See Symons Dec.; Dkt. No. 18.) Accordingly, Judge Lowe's recommendation regarding the timeliness of Brown's constitutional claims is moot.

On January 15, 2009, Judge Lowe recommended dismissal of Brown's complaint with respect to his New York state law claims. Judge Lowe further recommended dismissal of Brown's medical care claim with leave to amend. The court will now review the R R and the objection raised by Brown.

III. Standard of Review

Before entering final judgment, this court routinely reviews all report-recommendations 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. New York State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where 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.

IV. Discussion

A. New York claims

Brown has specifically objected to the R R's recommendation that the New York state law claims be dismissed. Brown argues that his complaint was timely filed as to the New York claims and suggests that he should not be held to the same standard as trained counsel. Furthermore, Brown seeks an opportunity to cure his complaint as to this claim. The court will review this portion of the R R de novo. See Brito v. Phillips, 485 F. Supp.2d 357, 360 (S.D.N.Y. 2007) ("[W]here objections to a report are specific and address only those portions of the proposed findings to which the party objects, district courts should conduct a de novo review of the issues raised by the objections.") (citations, omissions and quotation marks omitted).

Upon de novo review, the court concurs with Judge Lowe's findings that Brown's New York claims were untimely filed. (See R R p. 13.) Accordingly, the court adopts the portion of the R R dismissing Brown's New York state claims and denies Brown's request to amend his complaint.

B. Medical claims

Judge Lowe recommended dismissal of Brown's inadequate medical care claim, with leave to amend, since he failed to allege the defendants' personal involvement. ( See R R at 15-16.) Brown has not specifically objected to this recommendation. Thus, the court will review this portion of the R R for clear error. "When [a] plaintiff proceeds pro se, . . . a court is obliged to construe his pleadings liberally." Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citations omitted).

As the Supreme Court has observed, "a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007) (per curiam) (citations and quotations marks omitted). The "dismissal of a pro se claim as insufficiently pleaded is appropriate only in the most unsustainable of cases." Boykin v. KeyCorp, 521 F.3d 202, 216 (2d Cir. 2008). Thus, a pro se litigant's pleadings must be construed liberally, especially when dealing with alleged civil rights violations. See Weinstein v. Albright, 261 F.3d 127, 131-32 (2d Cir. 2001).

Upon review for clear error, Brown's medical care claim against Outhouse survives. While the complaint is not a model of clarity, Outhouse is clearly accused of failing to provide proper medical attention. ( See Compl. at ¶ 33; Dkt. No. 1.) Thus, the R R's recommendation dismissing Outhouse for failing to allege his personal involvement, is rejected. On the other hand, the medical care claim against Walborn is dismissed with leave to amend, as recommended by Judge Lowe, for failure to allege his personal involvement. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009) (a plaintiff must plead that each Government-official defendant, through the official's own individual actions, violated the Constitution.)

WHEREFORE, for the foregoing reasons, it is hereby

ORDERED that Magistrate Judge Lowe's January 15, 2009 Report-Recommendation and Order is adopted in part and denied in part as follows:

1. Judge Lowe's recommendation regarding Brown's New York state law claims is adopted and these claims are dismissed;

2. Judge Lowe's recommendation regarding the timeliness of Brown's constitutional claims is moot and thus rejected;

3. Judge Lowe's recommendation dismissing Brown's inadequate medical care claim is adopted as to defendant Walborn and rejected as to defendant Outhouse; and it is further

ORDERED Brown's request to amend his complaint in regards to the time barred claims is denied; and it is further

ORDERED defendants' objection to Brown's untimely filed objections is rejected; and it is further

ORDERED that the Clerk provide copies of this Decision and Order to the parties.

IT IS SO ORDERED.

REPORT-RECOMMENDATION

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Gary L. Sharpe, United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Karo Brown alleges that Defendants Robert Outhouse (Cayuga County Sheriff), Correctional Officer Walborn of the Cayuga County Jail, and two or more unnamed officers violated his rights under the United States Constitution and New York state laws by assaulting him, denying him prompt medical care, and conducting a procedurally flawed disciplinary hearing^1a. Currently pending before the Court is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 8.) For the reasons that follow, I recommend that Defendants' motion be granted in part.

I. BACKGROUND

A. Summary of Plaintiff's Complaint

Liberally construed, Plaintiff's complaint alleges as follows:

In 2004, Plaintiff was detained at Cayuga County Jail pending trial on federal charges. (Dkt. No. 1 at ¶ 5.) On November 15, 2004, Plaintiff was removed from the general population and questioned about "possession of salt packets." (Dkt. No. 1 at ¶ 13.) After the questioning, Plaintiff was "assaulted by Correctional Officer Walborn and other unknown Correctional Officers," who shoved Plaintiff into a tray cart, knocked him to the floor, kicked him and beat him with "unknown objects." (Dkt. No. 1 at ¶¶ 12-13, 15.) Plaintiff suffered lacerations to his face and scalp and abrasions to his legs, torso, face, head and shoulders. (Dkt. No. 1 at ¶ 17.)

Plaintiff was then placed in solitary confinement. (Dkt. No. 1 at ¶ 12, 20.) Plaintiff "did not eat any food while he was in solitary confinement because he had requested for medical attention." (Dkt. No. 1 at ¶ 20.) Plaintiff did not receive any medical attention until two or three days later. (Dkt. No. 1 at ¶ 20.)

Sometime after the assault, Plaintiff was "required to appear at a disciplinary hearing without any prior notice of the disciplinary hearing." (Dkt. No. 1 at ¶ 14.) At the hearing, Plaintiff asked to call other prisoners to testify as eyewitnesses, but the hearing officer denied the request. (Dkt. No. 1 at ¶ 22-23.) Plaintiff was then "kept in solitary confinement status for a couple of months." (Dkt. No. 1 at ¶ 23.)

Plaintiff claims that Defendants' conduct violated his rights under the United States Constitution and New York state law. (Dkt. No. 1 at 1.) Plaintiff states that he still suffers great pain and stiffness and believes that he risks permanent disability in his left shoulder if he is not promptly provided with physical therapy. (Dkt. No. 1 at ¶¶ 27, 29.) He requests 10 million dollars in damages. (Dkt. No. 1 at 7.)

B. Summary of Grounds in Support of Defendants' Motion

Defendants move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Dkt. No. 8.) Defendants argue that (1) Plaintiff's New York state law claim for assault and battery is barred by the applicable statute of limitations; (2) Plaintiff's New York state law claim for negligence is barred by the applicable statute of limitations; and (3) Plaintiff's Eighth Amendment claim for denial of medical care fails to state a cause of action because it does not adequately allege that Defendants were personally involved^2a. (Dkt. Nos. 8, 18.)

2a In addition to the arguments discussed in the body of this report-recommendation, Defendants initially moved to dismiss Plaintiff's constitutional claims as time-barred. (Dkt. No. 8-6 at 1, 2.) That argument was based on an incorrect assumption that the complaint was filed more than three years after the alleged incidents occurred. (Dkt. No. 18 at ¶ 3.) In their reply to Plaintiff's opposition to the motion, Defendants withdrew that argument. (Dkt. No. 18 at ¶ 4.)

C. Summary of Plaintiff's Response to Defendants' Arguments

In response to the motion to dismiss, Plaintiff argues that he timely filed his complaint. (Dkt. No. 15.)

II. LEGAL STANDARD GOVERNING MOTIONS TO DISMISS FOR FAILURE TO STATE A CLAIM

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). It has long been understood that a defendant may base such a motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Federal Rule of Civil Procedure 8(a)(2);^3a or (2) a challenge to the legal cognizability of the claim.^4a

3a See 5C Wright Miller, Federal Practice and Procedure § 1363 at 112 (3d ed. 2004) ("A motion to dismiss for failure to state a claim for relief under Rule 12(b)(6) goes to the sufficiency of the pleading under Rule 8(a)(2).") [citations omitted]; Princeton Indus., Inc. v. Rem, 39 B.R. 140, 143 (Bankr. S.D.N.Y. 1984) ("The motion under F.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint as to whether the plaintiff has conformed to F.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement' that the pleader is entitled to relief."); Bush v. Masiello, 55 F.R.D. 72, 74 (S.D.N.Y. 1972) ("This motion under Fed.R.Civ.P. 12(b)(6) tests the formal legal sufficiency of the complaint, determining whether the complaint has conformed to Fed.R.Civ.P. 8(a)(2) which calls for a 'short and plain statement that the pleader is entitled to relief.'").

4a See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("These allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. . . . In addition, they state claims upon which relief could be granted under Title VII and the ADEA."); Wynder v. McMahon, 360 F.3d 73, 80 (2d Cir. 2004) ("There is a critical distinction between the notice requirements of Rule 8(a) and the requirement, under Rule 12(b)(6), that a plaintiff state a claim upon which relief can be granted."); Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002) ("Of course, none of this is to say that a court should hesitate to dismiss a complaint when the plaintiff's allegation . . . fails as a matter of law.") [citation omitted]; Kittay v. Kornstein, 230 F.3d 531, 541 (2d Cir. 2000) (distinguishing between a failure to meet Rule 12[b][6]'s requirement of stating a cognizable claim and Rule 8[a]'s requirement of disclosing sufficient information to put defendant on fair notice); In re Methyl Tertiary Butyl Ether Prods. Liab. Litig., 379 F. Supp.2d 348, 370 (S.D.N.Y. 2005) ("Although Rule 8 does not require plaintiffs to plead a theory of causation, it does not protect a legally insufficient claim [under Rule 12(b)(6)].") [citation omitted]; Util. Metal Research Generac Power Sys., 02-CV-6205, 2004 U.S. Dist. LEXIS 23314, at *4-5 (E.D.N.Y. Nov. 18, 2004) (distinguishing between the legal sufficiency of the cause of action under Rule 12[b][6] and the sufficiency of the complaint under Rule 8[a]); accord, Straker v. Metro Trans. Auth., 331 F. Supp.2d 91, 101-102 (E.D.N.Y. 2004); Tangorre v. Mako's, Inc., 01-CV-4430, 2002 U.S. Dist. LEXIS 1658, at *6-7 (S.D.N.Y. Jan. 30, 2002) (identifying two sorts of arguments made on a Rule 12[b][6] motion — one aimed at the sufficiency of the pleadings under Rule 8[a], and the other aimed at the legal sufficiency of the claims).

Rule 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) [emphasis added]. By requiring this "showing," Rule 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."⁵ The main purpose of this rule is to "facilitate a proper decision on the merits."⁶ A complaint that fails to comply with this rule "presents far too heavy a burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims."⁷

5 Dura Pharm., Inc. v. Broudo, 125 S. Ct. 1627, 1634 (2005) (holding that the complaint failed to meet this test) [citation omitted; emphasis added]; see also Swierkiewicz, 534 U.S. at 512 [citation omitted]; Leathernman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993) [citation omitted].

6 Swierkiewicz, 534 U.S. at 514 (quoting Conley, 355 U.S. at 48); see also Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) ("Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial.") [citation omitted]; Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) ("[T]he principle function of pleadings under the Federal Rules is to give the adverse party fair notice of the claim asserted so as to enable him to answer and prepare for trial.") [citations omitted].

7 Gonzales v. Wing, 167 F.R.D. 352, 355 (N.D.N.Y. 1996) (McAvoy, J.), aff'd, 113 F.3d 1229 (2d Cir. 1997) (unpublished table opinion); accord, Hudson v. Artuz, 95-CV-4768, 1998 WL 832708, at *2 (S.D.N.Y. Nov. 30, 1998), Flores v. Bessereau, 98-CV-0293, 1998 WL 315087, at *1 (N.D.N.Y. June 8, 1998) (Pooler, J.). Consistent with the Second Circuit's application of § 0.23 of the Rules of the U.S. Court of Appeals for the Second Circuit, I cite this unpublished table opinion, not as precedential authority, but merely to show the case's subsequent history. See, e.g., Photopaint Technol., LLC v. Smartlens Corp., 335 F.3d 152, 156 (2d Cir. 2003) (citing, for similar purpose, unpublished table opinion of Gronager v. Gilmore Sec. Co., 104 F.3d 355 [2d Cir. 1996]).

The Supreme Court has long characterized this pleading requirement under Rule 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement.⁸ However, it is well established that even this liberal notice pleading standard "has its limits."⁹ As a result, several Supreme Court and Second Circuit decisions exist, holding that a pleading has failed to meet this liberal notice pleading standard.¹⁰

8 See, e.g., Swierkiewicz, 534 U.S. at 513-514 (noting that "Rule 8(a)(2)'s simplified pleading standard applies to all civil actions, with limited exceptions [including] averments of fraud or mistake.").

9 2 Moore's Federal Practice § 12.34[1][b] at 12-61 (3d ed. 2003).

10 See, e.g., Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964-1974 (2007) (pleading did not meet Rule 8[a][2]'s liberal requirement); accord, Dura Pharm., 125 S. Ct. at 1634-1635, Christopher v. Harbury, 536 U.S. 403, 416-422 (2002), Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 234-235 (2d Cir. 2004), Gmurzynska v. Hutton, 355 F.3d 206, 208-209 (2d Cir. 2004). Several unpublished decisions exist from the Second Circuit affirming the Rule 8(a)(2) dismissal of a complaint after Swierkiewicz. See, e.g., Salvador v. Adirondack Park Agency of the State of N.Y., No. 01-7539, 2002 WL 741835, at *5 (2d Cir. Apr. 26, 2002) (affirming pre- Swierkiewicz decision from Northern District of New York interpreting Rule 8[a][2]). Although these decisions are not themselves precedential authority, see Rules of the U.S. Court of Appeals for the Second Circuit, § 0.23, they appear to acknowledge the continued precedential effect, after Swierkiewicz, of certain cases from within the Second Circuit interpreting Rule 8(a)(2). See Khan v. Ashcroft, 352 F.3d 521, 525 (2d Cir. 2003) (relying on summary affirmances because "they clearly acknowledge the continued precedential effect" of Domond v. INS, 244 F.3d 81 [2d Cir. 2001], after that case was "implicitly overruled by the Supreme Court" in INS v. St. Cyr, 533 U.S. 289 [2001]).

Most notably, in the recent decision of Bell Atlantic Corporation v. Twombly, the Supreme Court, in reversing an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1, "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 127 S. Ct. 1955, 1968-69 (2007).¹¹ Rather than turning on the conceivability of an actionable claim, the Court clarified, the Fed.R.Civ.P. 8 "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74.

11 The Court in Bell Atlantic further explained: "The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been adequately stated, it may be supported by showing any set of facts consistent with the allegations in the complaint. . . . Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival." Bell Atlantic, 127 S. Ct. at 1969.

More specifically, the Court reasoned that, by requiring that a pleading "show[] that the pleader is entitled to relief," Rule 8(a)(2) requires that the pleading give the defendant "fair notice" of (1) the nature of the claim and (2) the "grounds" on which the claim rests. Id. at 1965, n. 3 [citation omitted]. While this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. at 1965 [citations omitted]. What this means, on a practical level, is that there must be "plausible grounds to infer [actionable conduct]," or, in other words, "enough fact to raise a reasonable expectation that discovery will reveal evidence of [actionable conduct]." Id.

As have other Circuits, the Second Circuit has repeatedly recognized that the clarified plausibility standard that was articulated by the Supreme Court in Bell Atlantic governs all claims, not merely antitrust claims brought under 15 U.S.C. § 1 (as were the claims in Bell Atlantic).¹² The Second Circuit has also recognized that this plausibility standard governs claims brought even by pro se litigants (although the plausibility of those claims is be assessed generously, in light of the special solicitude normally afforded pro se litigants).¹³

12 See, e.g., Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (in civil rights action, stating that "To survive a motion to dismiss, a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'") [citation omitted]; Goldstein v. Pataki, 07-CV-2537, 2008 U.S. App. LEXIS 2241, at *14 (2d Cir. Feb. 1, 2008) (in civil rights action, stating that " Bell Atlantic requires . . . that the complaint's '[f]actual allegations be enough to raise a right to relief above the speculative level. . . .'") [internal citation omitted]; ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98, n. 2 (2d Cir. 2007) ("We have declined to read Bell Atlantic's flexible 'plausibility standard' as relating only to antitrust cases.") [citation omitted]; Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007) (in prisoner civil rights action, stating, "[W]e believe the [Supreme] Court [in Bell Atlantic Corp. v. Twombly] is . . . requiring a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible.") [emphasis in original].

13 See, e.g., Jacobs v. Mostow, 281 F. App'x 85, 87 (2d Cir. March 27, 2008) (in pro se action, stating, "To survive a motion to dismiss, a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'") [citation omitted] (summary order, cited in accordance with Local Rule 32.1[c][1]); Boykin v. KeyCorp., 521 F.3d 202, 215-16 (2d Cir. 2008) (finding that borrower's pro se complaint sufficiently presented a " plausible claim of disparate treatment," under Fair Housing Act, to give lenders fair notice of her discrimination claim based on lenders' denial of her home equity loan application) [emphasis added].

It should be emphasized that Rule 8's plausibly standard, explained in Bell Atlantic, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which the Court stated, "Specific facts are not necessary" to successfully state a claim under Rule 8(a)(2). Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [citation omitted]. That statement was merely an abbreviation of the often-repeated point of law-first offered in Conley and repeated in Bell Atlantic-that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Bell Atlantic, 127 S. Ct. 1965, n. 3 (citing Conley v. Gibson, 355 U.S. 41, 47). That statement in no way meant that all pleadings may achieve the requirement of giving a defendant "fair notice" of the nature of the claim and the "grounds" on which the claim rests without ever having to allege any facts whatsoever.¹⁴ There must still be enough facts alleged to raise a right to relief above the speculative level to a plausible level, so that the defendant may know what the claims are and the grounds on which they rest (in order to shape a defense).

14 For example, in Erickson, a district court had dismissed a pro se prisoner's civil rights complaint because, although the complaint was otherwise factually specific as to how the prisoner's hepatis C medication had been wrongfully terminated by prison officials for a period of approximately 18 months, the complaint (according to the district court) failed to allege facts plausibly suggesting that the termination caused the prisoner "substantial harm." 127 S. Ct. at 2199. The Supreme Court vacated and remanded the case because (1) under Fed.R.Civ.P. 8 and Bell Atlantic, all that is required is "a short and plain statement of the claim" sufficient to "give the defendant fair notice" of the claim and "the grounds upon which it rests," and (2) the plaintiff had alleged that the termination of his hepatitis C medication for 18 months was "endangering [his] life" and that he was "still in need of treatment for [the] disease." Id. at 2200. While Erickson does not elaborate much further on its rationale, a careful reading of the decision (and the dissent by Justice Thomas) reveals a point that is perhaps so obvious that it did not need mentioning in the short decision: a claim of deliberate indifference to a serious medical need under the Eighth Amendment involves two elements, i.e., the existence of a sufficiently serious medical need possessed by the plaintiff, and the existence of a deliberately indifferent mental state possessed by prison officials with regard to that sufficiently serious medical need. The Erickson decision had to do with only the first element, not the second element. Id. at 2199-2200. In particular, the decision was merely recognizing that an allegation by a plaintiff that, during the relevant time period, he suffered from hepatis C is, in and of itself, a factual allegation plausibly suggesting that he possessed a sufficiently serious medical need; the plaintiff need not also allege that he suffered an independent and "substantial injury" as a result of the termination of his hepatis C medication. Id. This point of law is hardly a novel one. For example, numerous decisions, from district courts within the Second Circuit alone, have found that suffering from hepatitis C constitutes having a serious medical need for purposes of the Eighth Amendment. See, e.g., Rose v. Alvees, 01-CV-0648, 2004 WL 2026481, at *6 (W.D.N.Y. Sept. 9, 2004); Verley v. Goord, 02-CV-1182, 2004 WL 526740, at *10 n. 11 (S.D.N.Y. Jan. 23, 2004); Johnson v. Wright, 234 F. Supp.2d 352, 360 (S.D.N.Y. 2002); McKenna v. Wright, 01-CV-6571, 2002 WL 338375, at *6 (S.D.N.Y. March 4, 2002); Carbonell v. Goord, 99-CV-3208, 2000 WL 760751, at *9 (S.D.N.Y. June 13, 2000).

Having said all of that, it should also be emphasized that, "[i]n reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."¹⁵ "This standard is applied with even greater force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se."¹⁶ In other words, while all pleadings are to be construed liberally under Rule 8(e), pro se civil rights pleadings are to be construed with an extra degree of liberality.¹⁷

15 Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (affirming grant of motion to dismiss) [citation omitted]; Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994).

16 Hernandez, 18 F.3d at 136 [citation omitted]; Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003) [citations omitted]; Vital v. Interfaith Med. Ctr., 168 F.3d 615, 619 (2d Cir. 1999) [citation omitted].

17 See, supra, note 3 of this Report-Recommendation.

For example, the mandate to read the papers of pro se litigants generously makes it appropriate to consider a plaintiff's papers in opposition to a defendant's motion to dismiss as effectively amending the allegations of the plaintiff's complaint, to the extent that those factual assertions are consistent with the allegations of the plaintiff's complaint.¹⁸ Moreover, "courts must construe pro se pleadings broadly, and interpret them to raise the strongest arguments that they suggest."¹⁹ Furthermore, when addressing a pro se complaint, generally a district court "should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated."²⁰ Of course, an opportunity to amend is not required where the plaintiff has already amended his complaint.²¹ In addition, an opportunity to amend is not required where "the problem with [plaintiff's] causes of action is substantive" such that "[b]etter pleading will not cure it."²²

18 "Generally, a court may not look outside the pleadings when reviewing a Rule 12(b)(6) motion to dismiss. However, the mandate to read the papers of pro se litigants generously makes it appropriate to consider plaintiff's additional materials, such as his opposition memorandum." Gadson v. Goord, 96-CV-7544, 1997 WL 714878, at *1, n. 2 (S.D.N.Y. Nov. 17, 1997) (citing, inter alia, Gil v. Mooney, 824 F.2d 192, 195 [2d Cir. 1987] [considering plaintiff's response affidavit on motion to dismiss]). Stated another way, "in cases where a pro se plaintiff is faced with a motion to dismiss, it is appropriate for the court to consider materials outside the complaint to the extent they 'are consistent with the allegations in the complaint.'" Donhauser v. Goord, 314 F. Supp.2d 119, 212 (N.D.N.Y. 2004) (considering factual allegations contained in plaintiff's opposition papers) [citations omitted], vacated in part on other grounds, 317 F. Supp.2d 160 (N.D.N.Y. 2004). This authority is premised, not only on case law, but on Rule 15 of the Federal Rules of Civil Procedure, which permits a plaintiff, as a matter of right, to amend his complaint once at any time before the service of a responsive pleading-which a motion to dismiss is not. See Washington v. James, 782 F.2d 1134, 1138-39 (2d Cir. 1986) (considering subsequent affidavit as amending pro se complaint, on motion to dismiss) [citations omitted].

19 Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (finding that plaintiff's conclusory allegations of a due process violation were insufficient) [internal quotation and citation omitted].

20 Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) [internal quotation and citation omitted]; see also Fed.R.Civ.P. 15(a) (leave to amend "shall be freely given when justice so requires").

21 Yang v. New York City Trans. Auth., 01-CV-3933, 2002 WL 31399119, at *2 (E.D.N.Y. Oct. 24, 2002) (denying leave to amend where plaintiff had already amended complaint once); Advanced Marine Tech. v. Burnham Sec., Inc., 16 F.Supp. 2d 375, 384 (S.D.N.Y. 1998) (denying leave to amend where plaintiff had already amended complaint once).

22 Cuoco, 222 F.3d at 112 (finding that repleading would be futile) [citation omitted]; see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.") (affirming, in part, dismissal of claim with prejudice) [citation omitted]; see, e.g., See Rhodes v. Hoy, 05-CV-0836, 2007 WL 1343649, at *3, 7 (N.D.N.Y. May 5, 2007) (Scullin, J., adopting Report-Recommendation of Peebles, M.J.) (denying pro se plaintiff opportunity to amend before dismissing his complaint because the error in his complaint-the fact that plaintiff enjoyed no constitutional right of access to DOCS' established grievance process-was substantive and not formal in nature, rendering repleading futile); Thabault v. Sorrell, 07-CV-0166, 2008 WL 3582743, at *2 (D. Vt. Aug. 13, 2008) (denying pro se plaintiff opportunity to amend before dismissing his complaint because the errors in his complaint-lack of subject-matter jurisdiction and lack of standing-were substantive and not formal in nature, rendering repleading futile) [citations omitted]; Hylton v. All Island Cob Co., 05-CV-2355, 2005 WL 1541049, at *2 (E.D.N.Y. June 29, 2005) (denying pro se plaintiff opportunity to amend before dismissing his complaint arising under 42 U.S.C. § 1983 because the errors in his complaint-which included the fact that plaintiff alleged no violation of either the Constitution or laws of the United States, but only negligence-were substantive and not formal in nature, rendering repleading futile); Sundwall v. Leuba, 00-CV-1309, 2001 WL 58834, at *11 (D. Conn. Jan. 23, 2001) (denying pro se plaintiff opportunity to amend before dismissing his complaint arising under 42 U.S.C. § 1983 because the error in his complaint-the fact that the defendants were protected from liability by Eleventh Amendment immunity-was substantive and not formal in nature, rendering repleading futile).

However, while this special leniency may somewhat loosen the procedural rules governing the form of pleadings (as the Second Circuit very recently observed), ²³ it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Rules 8, 10 and 12.²⁴ Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Rules 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.²⁵ Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended."²⁶

23 Sealed Plaintiff v. Sealed Defendant # 1, No. 06-1590, 2008 WL 3294864, at *5 (2d Cir. Aug. 12, 2008) ("[The obligation to construe the pleadings of pro se litigants liberally] entails, at the very least, a permissive application of the rules governing the form of pleadings.") [internal quotation marks and citation omitted]; see also Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) ("[R]easonable allowances to protect pro se litigants from inadvertent forfeiture of important rights because of their lack of legal training . . . should not be impaired by harsh application of technical rules.") [citation omitted].

24 See Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972) (extra liberal pleading standard set forth in Haines v. Kerner, 404 U.S. 519 [1972], did not save pro se complaint from dismissal for failing to comply with Fed.R.Civ.P. 8]); accord, Shoemaker v. State of Cal., 101 F.3d 108 (2d Cir. 1996) (citing Prezzi v. Schelter, 469 F.2d 691) [unpublished disposition cited only to acknowledge the continued precedential effect of Prezzi v. Schelter, 469 F.2d 691, within the Second Circuit]; accord, Praseuth v. Werbe, 99 F.3d 402 (2d Cir. 1995).

25 See McNeil v. U.S., 508 U.S. 106, 113 (1993) ("While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed . . . we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel."); Faretta v. California, 422 U.S. 806, 834, n. 46 (1975) ("The right of self-representation is not a license . . . not to comply with relevant rules of procedural and substantive law."); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) ( pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law") [citation omitted]; Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) ( pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law") [citation omitted]; cf. Phillips v. Girdich, 408 F.3d 124, 128, 130 (2d Cir. 2005) (acknowledging that pro se plaintiff's complaint could be dismissed for failing to comply with Rules 8 and 10 if his mistakes either "undermine the purpose of notice pleading []or prejudice the adverse party").

26 Stinson v. Sheriff's Dep't of Sullivan Cty., 499 F. Supp. 259, 262 n. 9 (S.D.N.Y. 1980).

III. ANALYSIS

A. Plaintiff's Assault and Battery Claim Is Barred By The Applicable Statute of Limitations

Plaintiff alleges that Defendants committed "the tort of assault and battery." (Dkt. No. 1 at 1.) Defendants argue that this claim is barred by the applicable statute of limitations. (Dkt. Nos. 8-6 at 1-2 and 18-2 at 1.) Defendants are correct. Defendants cite the one-year statute of limitations in New York Civil Practice Law and Rules § 215(3). However, a slightly longer statute of limitations applies. New York General Municipal Law §§ 50-i and 50-e require plaintiffs suing counties or their employees to file a notice of claim within ninety days and commence the action within one year and ninety days of the events giving rise to the claim. Lieber v. Village of Spring Valley, 40 F. Supp. 2d 525, 533 (S.D.N.Y. 1999) (collecting cases). Here, however, even if Plaintiff had complied with the notice of claim requirements and was entitled to the longer statute of limitations, his assault and battery claim would be barred. The complaint alleges that Plaintiff was assaulted on November 18, 2004. (Dkt. No. 1 at ¶ 14.) Plaintiff did not file his complaint until November 2, 2007. (Dkt. No. 1.) Therefore, I recommend that Plaintiff's New York state law cause of action for assault and battery be dismissed.

B. Plaintiff's Negligence Claim Is Barred By The Applicable Statute of Limitations

Plaintiff alleges that Defendants committed "the tort of . . . negligence." (Dkt. No. 1 at 1.) Defendants argue that this claim is barred by the applicable statute of limitations. (Dkt. Nos. 8-6 at 2 and 18-2 at 1-2.) Defendants are correct. The one year and ninety day statute of limitations for actions against county employees, discussed above, also applies to negligence actions. Baker v. Dorfman, 239 F.3d 415, 419 (2d Cir. 2000). Plaintiff did not file his complaint within one year and ninety days of the events he describes in the complaint. Therefore, I recommend that Plaintiff's New York state law cause of action for negligence be dismissed.

C. Plaintiff Has Not Adequately Alleged That Defendants Were Personally Involved In The Denial of Medical Care

Defendants argue that Plaintiff has not stated a cause of action for denial of medical care against them because the complaint does not adequately allege that Defendants were personally involved with any deprivation. (Dkt. Nos. 8-6 at 2-3 and 18-2 at 2-5.) Defendants are correct.

"'[P]ersonal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (quoting Moffitt v. Town of Brookfield, 950 F.2d 880, 885 [2d Cir. 1991]).²⁷ In order to prevail on a cause of action under 42 U.S.C. § 1983 against an individual, a plaintiff must show some tangible connection between the alleged unlawful conduct and the defendant.²⁸ If the defendant is a supervisory official, a mere "linkage" to the unlawful conduct through "the prison chain of command" (i.e., under the doctrine of respondeat superior) is insufficient to show his or her personal involvement in that unlawful conduct.²⁹ In other words, supervisory officials may not be held liable merely because they held a position of authority.³⁰ Rather, supervisory personnel may be considered "personally involved" only if they (1) directly participated in the violation, (2) failed to remedy that violation after learning of it through a report or appeal, (3) created, or allowed to continue, a policy or custom under which the violation occurred, (4) had been grossly negligent in managing subordinates who caused the violation, or (5) exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring.³¹

27 Accord, McKinnon v. Patterson, 568 F.2d 930, 934 (2d Cir. 1977), cert. denied, 434 U.S. 1087 (1978); Gill v. Mooney, 824 F2d 192, 196 (2d Cir. 1987).

28 Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986).

29 Polk County v. Dodson, 454 U.S. 312, 325 (1981); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003); Wright, 21 F.3d at 501; Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985).

30 Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996).

31 Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (adding fifth prong); Wright, 21 F.3d at 501 (adding fifth prong); Williams v. Smith, 781 F.2d 319, 323-324 (2d Cir. 1986) (setting forth four prongs).

Here, the complaint does not include any allegations linking Defendant Walborn to the alleged denial of medical care. Rather, the allegations against Defendant Walborn involve only the assault. Therefore, I recommend that the Eighth Amendment cause of action against Defendant Walborn for denial of medical care be dismissed with leave to amend.

Regarding Defendant Outhouse, the complaint alleges merely that he is "responsible for arranging the placement of pretrial and convicted federal prisoners" and "for medical care generally and for arranging for specialized medical care in/outside the prison." (Dkt. No. 1 at ¶¶ 25-26.) The complaint does not allege that Defendant Outhouse directly participated in the violation, failed to remedy that violation after learning of it through a report or appeal, created, or allowed to continue, a policy or custom under which the violation occurred, was grossly negligent in managing subordinates who caused the violation, or exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that the violation was occurring. Therefore, I recommend that the Eighth Amendment cause of action against Defendant Outhouse for denial of medical care be dismissed with leave to amend.

ACCORDINGLY, it is

RECOMMENDED that Defendants' motion to dismiss for failure to state a claim (Dkt. No. 8) be GRANTED IN PART. It is recommended that (1) Plaintiff's New York state law causes of action for assault and battery and negligence be dismissed as barred by the statute of limitations; (2) Plaintiff's Eighth Amendment denial of medical care claim be dismissed with leave to amend for failure to allege Defendants' personal involvement; and (3) the motion be DENIED to the extent that it sought dismissal of Plaintiff's constitutional claims as barred by the statute of limitations.

ANY OBJECTIONS to this Report-Recommendation must be filed with the Clerk of this Court within TEN (10) WORKING DAYS, PLUS THREE (3) CALENDAR DAYS from the date of this Report-Recommendation (unless the third calendar day is a legal holiday, in which case add a fourth calendar day). See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); N.D.N.Y. L.R. 72.1(c); Fed.R.Civ.P. 6(a)(2), (d).

BE ADVISED that the District Court, on de novo review, will ordinarily refuse to consider arguments, case law and/or evidentiary material that could have been, but was not, presented to the Magistrate Judge in the first instance. ³² BE ALSO ADVISED that the failure to file timely objections to this Report-Recommendation will PRECLUDE LATER APPELLATE REVIEW of any Order of judgment that will be entered. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of H.H.S., 892 F.2d 15 [2d Cir. 1989]).

32 See, e.g., Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) ("In objecting to a magistrate's report before the district court, a party has no right to present further testimony when it offers no justification for not offering the testimony at the hearing before the magistrate.") [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40 n. 3 (2d Cir. 1990) (district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff "offered no justification for not offering the testimony at the hearing before the magistrate"); Alexander v. Evans, 88-CV-5309, 1993 WL 427409, at *18 n. 8 (S.D.N.Y. Sept. 30, 1993) (declining to consider affidavit of expert witness that was not before magistrate) [citation omitted]; s ee also Murr v. U.S., 200 F.3d 895, 902, n. 1 (6^th Cir. 2000) ("Petitioner's failure to raise this claim before the magistrate constitutes waiver."); Marshall v. Chater, 75 F.3d 1421, 1426 (10^th Cir. 1996) ("Issues raised for the first time in objections to the magistrate judge's recommendations are deemed waived.") [citations omitted]; Cupit v. Whitley, 28 F.3d 532, 535 (5^th Cir. 1994) ("By waiting until after the magistrate judge had issued its findings and recommendations [to raise its procedural default argument] . . . Respondent has waived procedural default . . . objection[].") [citations omitted]; Greenhow v. Sec'y of Health Human Servs., 863 F.2d 633, 638-39 (9^th Cir. 1988) ("[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act."), overruled on other grounds by U.S. v. Hardesty, 977 F.2d 1347 (9^th Cir. 1992); Patterson-Leitch Co. Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990-91 (1^st Cir. 1988) ("[A]n unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.") [citation omitted].