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applying continuing violation doctrine to deliberate indifference claim
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99 Civ. 0977 (RWS)
February 19, 2001
NIXON PEABODY, LLP, Buffalo, NY, By: ALLISON P. GIOIA, ESQ., Attorney for Plaintiff, of Counsel.
HONORABLE ELIOT L. SPITZER, Attorney General of the State of New York New York, NY, By: STACY R. SABATINI, Assistant Attorney General, Attorney for Defendant, of Counsel.
OPINION
Plaintiff Richard Cole ("Cole") has moved for permission to file a Second Amended Complaint, pursuant to Federal Rule of Civil Procedure 15(a), and defendant Felicitas Miraflor, M.D. ("Miraflor") has cross-moved to dismiss the complaint on statute of limitations grounds, pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, the motion by Cole is granted, and the motion by Miraflor is denied.
The Parties
Cole was at all relevant times an inmate under the care and custody of the New York State Department of Corrections ("DOCs"). The facts underlying Cole's claim against Miraflor arose while Cole was incarcerated at Otisville Correctional Facility ("Otisville").
Miraflor was at all relevant times a treating physician of Cole's while he was incarcerated at Otisville.
Prior Proceedings
This action was initiated by the filing of a pro se complaint in the Southern District of New York on October 15, 1998, against Christopher Artuz ("Artuz"), Superintendent of the Green Haven Correctional Facility ("Green Haven") in Stormville, New York, Norman Selwin ("Selwin"), Medical Director at Green Haven, and Jane Doe ("Doe"), a doctor at Otisville (collectively, "Original Defendants"). The complaint alleged deliberate indifference to Cole's medical needs in violation of the Eighth Amendment and 42 U.S.C. § 1983, as well as deprivation of Cole's right to meaningful access to the courts in violation of the Constitution and 42 U.S.C. § 1983.
In this Court's previous opinion in this case, Cole v. Artuz, 97 Civ. 977, 2000 WL 760749, at *1 (S.D.N.Y. June 12, 2000), it is stated that Cole filed his complaint on February 2, 1999. This is the date reflected in the courthouse records. However, in connection with the instant motion Cole has submitted a copy of a pro se complaint with a partially obliterated date-stamp that appears to reflect receipt by the Pro Se Office for the Southern District of New York on October 15, 1998. Cole contends that this is the date he filed his complaint, and Miraflor assumes arguendo that this is the proper date. In addition, although it is the law of this circuit that a prisoner's complaint is deemed filed upon his handing of a complaint to prison officials, see Dory v. Ryan, 999 F.2d 679 (2d Cir. 1993), which would presumably have occurred before October 15, 1998, Cole has not argued for application of an earlier date.
As against Doe, Cole alleged in his pro se complaint that, during the period of his incarceration at Otisville, which began when he was transferred to Otisville in November 1995 and continued until he was transferred from Otisville to Green Haven in or about January, 1997:
Plaintiff informed Jane Doe on repeated occasions that he had a serious back ailment. That having to climb up and jump down from a TOP BUNK was aggravating that injury. Defendant Doe refused to medically excuse plaintiff from having to sleep in a top bunk, verify the ailment or provide appropriate medical treatment.
On or about April 29, 1999, the Original Defendants, represented by the Office of the Attorney General of the State of New York (the "New York Attorney General"), filed a motion to dismiss the complaint. On or about May 11, 1999, the Original Defendants requested that all discovery be stayed pending resolution of the motion to dismiss. The request was granted on May 13, 1999.
On September 3, 1999, Nixon Peabody LLP filed a notice of appearance and has since been acting as counsel for Cole in this action.
On September 14, 1999, counsel for Cole wrote to Assistant Attorney General Stacy Sabatini ("Sabatini"), counsel for the New York Attorney General in this case:
In light of the statements made in defendants' motion to dismiss concerning your representation of "[d]efendants Superintendent Christopher Artuz; Medical Director Norman Selwin, Green Haven Correctional Facility; and Otisville Correctional Facility," I write to request your assistance in identifying the Jane Doe defendant, a doctor or medical professional at Otisville Correctional Facility.
On October 27, 1999, counsel for Cole requested his medical records.
On November 2, 1999, this Court denied the Original Defendants' motion to dismiss and granted Cole twenty days to file an amended complaint. On December 14, 1999, Cole filed an amended complaint. On January 6, 2000, the Original Defendants filed a motion to dismiss the amended complaint.
For unknown reasons, Nixon Peabody did not receive a copy of this Court's November 2, 1999 order until after the twenty days had expired. Notwithstanding this confusion, the Court permitted Cole to serve and file an amended complaint.
Cole's medical records were received by his counsel on March 6, 2000.
In a letter to this Court dated April 11, 2000, counsel for Cole stated that Sabatini had not responded to the September 14, 1999, letter requesting assistance in identifying the Doe defendant.
On June 12, 2000, the Original Defendants' motion to dismiss the amended complaint was granted with respect to Selwin and Artuz, but denied with respect to Doe. See Cole, 2000 WL 760749, at *7.
Also on June 12, 2000, the stay of discovery was lifted. Ultimately, the discovery period was extended through October 12, 2000.
Immediately following receipt of the Court's June 12, 2000 decision and order, Cole's counsel again sought assistance from the New York Attorney General in identifying the Doe defendant. Having received no response, on July 20, 2000, a third- party subpoena was served on the Medical Director of the Otisville Correctional Facility. Sabatini, on behalf of the New York Attorney General, responded to the subpoena.
On July 25, 2000, counsel for Cole provided Cole's medical records from Otisville to the New York Attorney General, and on July 28, 2000, the New York Attorney General provided the names of the medical personnel who were among those individuals who treated Cole during his period of incarceration at Otisville. On August 28, 2000, in response to a request from Cole's counsel, Otisville provided pictures and descriptions of two Otisville medical professionals.
On or about September 14, 2000, a Second Amended Complaint was served identifying the Doe defendant as Miraflor and alleging deliberate indifference by Miraflor to Cole's serious medical needs, in violation of the Eighth Amendment. The specific factual allegations against Miraflor are identical to those made against Doe in the original pro se complaint, and continue to allege unconstitutional conduct for the period spanning November 1995 through in or about January 1997.
On September 25, 2000, Miraflor filed the instant motion to dismiss the Second Amended Complaint on statute of limitations grounds. In a letter dated September 26, 2000, Cole requested permission to file the Second Amended Complaint, which letter was treated as a motion. Oral argument was heard on November 8, 2000, at which time the matter was marked fully submitted.
Discussion
I. The Governing Legal Standards
A. The Standard Under Rule 12(b)(6)
On a Rule 12(b)(6) motion to dismiss, the factual allegations of the complaint are presumed to be true and all factual inferences must be drawn in the plaintiffs' favor and against the defendants. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989); Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985).
Rule 12(b)(6) imposes a substantial burden of proof upon the moving party. A court may not dismiss a complaint unless the movant demonstrates if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J., Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (citation omitted); Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. The Applicable Statute Of Limitations
There is no federal statute of limitations for § 1983 actions. Accordingly, a federal court must "borrow" the limitations period from the most appropriate or analogous state statue. See Board of Regents v. Tomanio, 446 U.S. 478, 483-84 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975). New York's three-year period for personal injury actions § 1983 actions in New York State. See Owens v. Okure, 488 U.S. 235, 249 (1989) (holding that New York's three-year statute of limitations for general personal injury actions applies to constitutional torts claims under § 1983); N.Y. C.P.L.R. § 214(5).
The date of accrual of a § 1983 claim, however, is governed by federal law. See Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992). Such claims accrue when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980).
II. Cole's Naming Of Miraflor Does Not Relate Back
Cole's claim accrued when he knew or had reason to know of his injury. Miraflor contends that this occurred when he was transferred to Otisville in November 1995, at which time he notified the Otisville medical staff that he had back pain and, according to the Second Amended Complaint, was denied proper care by Miraflor. The New York Attorney General contends that Cole's claim is time-barred because, based on a November 1995 accrual date, the three-year statute of limitations against Miraflor ran out in November 1998, yet Cole failed to name her until September 2000.
Cole contends that his Second Amended Complaint identifying Miraflor "relates back" to his original pro se complaint and, therefore, is timely under Federal Rule of Civil Procedure 15(c).
For purposes of his relation back argument, Cole agrees arguendo that his claim accrued in November 1995. However, as discussed below, he also raises an alternative, tolling argument.
Rule 15(c) provides that an amendment changing the name of a defendant relates back to the original pleading if the claims against the new party arise out of the same conduct or occurrence set forth in the original pleading, and, within 120 days of filing the original complaint, the new defendant (1) had received such notice of the action that he will not be prejudiced in maintaining his defense on the merits, Fed.R.Civ.P. 15(c)(3)(A), and (2) knew or should have known that, but for a mistake concerning the identity of the proper party the action would have been brought against him, Fed.R.Civ.P. 15(c)(3)(B). See, e.g., Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996).
According to Miraflor, Cole's Second Amended Complaint does not relate back because Cole's inability to discover Miraflor's name before the running of the limitations period is not a "mistake," as that term was defined by the Second Circuit in Barrow v. Wethersfield Police Dep't, 66 F.3d 466 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1996).
In Barrow, the Second Circuit held that a "mistake" in identifying a defendant occurs for purposes of Rule 15(c) when it is the result of "misnomer or misidentification," or when a plaintiff omits the individual defendant altogether in the erroneous belief that suing a government department will suffice. 66 F.3d at 469. However, the court stated, "the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Id. at 470. The relation back doctrine did not apply in Barrow because, after having been directed by the court to name the individual officers whom he accused of violating his rights under § 1983, the plaintiff, after the deadline set by the court, filed an amended complaint in which he identified these defendants only as John Doe, and then amended his complaint to name the actual officers almost two years after the state of limitations had run. See id. at 476. Under these circumstances, the court held, there was no "mistake" within the meaning of Rule 15(c). See id. The Barrow rule was recently reaffirmed by the Second Circuit in Malesko v. Correctional Servs. Corp., 229 F.3d 274, (2d Cir. 2000) ("A plaintiff is not considered to have made . . . a 'mistake" [within meaning of Rule 15(c)], however, if the plaintiff knew that he was required to name an individual as a defendant but did not do so because he did not know the individual's identity.") (citing Barrow, 66 F.3d at 470).
In Byrd v. Abate, 964 F. Supp. 140, 145-46 (S.D.N Y 1997), this Court distinguished Barrow, and applied the relation back doctrine to a plaintiff who initially sued John Doe defendants and then later, after the statute of limitations had run, named the actual defendants. It was noted that in Barrow the plaintiff disregarded an explicit direction from the court to obtain the officers' identities. See id. at 145. By contrast, in Byrd, the plaintiff "made a series of efforts to obtain the identity of the individual officer without prompting, and well before the end of the limitations period." Id. (Byrd's counsel first requested officer's name from Corporation Counsel for the City of New York nine months before statute of limitations expired). These circumstances warranted the conclusion that a "mistake" had been made for purposes of Rule 15(c) and, indeed, "[t]o hold that Rule 15(c) does not permit relation back in such circumstances would permit defense counsel to eliminate claims against any John Doe defendant merely by resisting discovery responses until the statute of limitations ended." Id. at 146; see also Thomas v. Arevalo, 95 Civ. 4704, 1998 WL 427623, at *15 (S.D.N.Y. July 28, 1998) (distinguishing Barrow, and applying relation back rule, because "in naming 'John Doe' defendants, plaintiff was merely following the Court's own directive . . . [the] language [of the court's order] was imprecise and did not properly warn the pro se plaintiff of the consequences should be not be able to meet the requirements of Rule 15(c)(3) for any newly-added defendants").
Here, Cole did not make a legal or factual mistake. He did not, for example, neglect to include an individual defendant based on the misconception that he was not required to do so. Indeed, he included an individual "Jane Doe" defendant in his original pro se complaint. Nor did he mistakenly name a different doctor than Miraflor. There is no dispute that the reason Cole did not name Miraflor is that he did not know her identity. This, standing alone, cannot support application of the relation back rule under the precedent in this circuit. See Barrow, 66 F.3d at 470.
Counsel for Cole has described how, once they became involved in September 1999, they made repeated efforts to identify the Doe defendant, and the protracted amount of time this process took. They also point to ways in which they contend the New York Attorney General was not as helpful as it might have been. In addition, it must be noted that discovery was stayed in this action from May 13, 1999, until June 12, 2000. The problem, however, is that by the time Cole's counsel appeared in this action — and indeed, by the time of the discovery stay — the three-year statute of limitations had already run if the claim accrued in November 1995. Nor has any evidence been offered as to efforts by Cole himself to identify the Doe defendant prior to November 1998. Unlike the plaintiffs in Barrow, Cole did not disregard an order by this Court directing him to identify the individual defendant. However, this case cannot be distinguished from Barrow on the ground that he was stymied in efforts made before the limitations period expired to identify Miraflor, see Byrd, 964 F. Supp. at 145, or was understandably confused by some directive of this court, see Thomas, 1998 WL 427623, at *15.
For example, Cole's pro se complaint nowhere references attempts to identify the Doe defendant.
In this Court's previous opinion, the contention that the complaint should be dismissed for failing to identify the Doe defendant was rejected. See Cole, 2000 WL 760749, at *6. The issue at that juncture did not involve a statute of limitations argument. See id. Nonetheless, the wording of the decision might have confused a pro se plaintiff. However, Cole was no longer pro se at that time and, moreover, if his claim accrued on November 1995, the statute of limitations had expired long before.
Cole fails to address the issue of whether he made a "mistake" within the meaning of Rule 15(c), focusing instead on the other factors to be considered in the relation back analysis, namely, whether the underlying transactions are the same as in the underlying pleading, whether Miraflor was on notice or constructive notice, and whether Miraflor has been prejudiced. See Soto, 80 F.3d at 35 (setting forth factors). It is not necessary to address these issues, however, because his argument that the relation back doctrine applies fails for the reasons set forth above.
III. Cole's Claim Was Tolled By The "Continuous Violation" Doctrine
Cole contends that, even if the Second Amended Complaint does not relate back, his claim against Miraflor is timely based on the "continuous treatment" doctrine. According to Cole, pursuant to this doctrine, his claim against Miraflor did not accrue until in or about January 1997, when he was transferred out of Otisville and was therefore no longer under Miraflor's care.
Cole also offers November 17, 1996, as the earliest possible date when his claim could have accrued under the "continuous treatment" rule. However, he offers no explanation for this date. In any case, because of the sequence of events, including in particular the stay of discovery, it is immaterial for purposes of this discussion whether the accrual date is November 17, 1996 or January 1997.
Cole's argument that the "continuous treatment" doctrine applies is misplaced. This doctrine is borrowed not from the law governing personal injury actions but, rather, from the law governing professional malpractice claims. See, e.g., Borgia v. City of New York, 237 N.Y.S.2d 319 (N.Y. 1962) (applying continuous treatment doctrine to medical malpractice claim); see also West v. City of New York, No. 88 Civ. 1801, 1992 WL 249966, at *5 (S.D.N Y Sept. 22, 1992) (citing various types of professional malpractice cases in which continuous treatment/representation doctrine applies under New York law). It is well-established, of course, that a claim for medical malpractice does not state a claim under § 1983. See Cole, 2000 WL 760749, at *6 (internal citation omitted). In West, the Honorable Charles S. Haight reasoned that the continuous treatment doctrine cannot apply to a § 1983 deliberate indifference claim because, first, "courts have carefully distinguished deliberate indifference from medical malpractice," and, second, "the Supreme Court has stated . . . that the statute of limitations provisions of personal injury actions shall apply to all section 1983 cases." 1992 WL 249966, at *5 (citing Owens, 488 U.S. at 242). In addition, it must be noted that, given that a § 1983 is governed by the personal injury statute of limitations, the rationale underlying the continuous treatment doctrine is inapposite. See N.Y. C.P.L.R. § 214-a, Practice Commentary C214- a:2 (McKinney 1990) (rationale for continuous treatment doctrine is that patient may be deterred from bringing malpractice claim where there is continuous relationship of trust and confidence between patient and doctor); cf. N.Y. C.P.L.R. § 214, Practice Commentary C214:6 (McKinney 1990) (rationale for continuous representation doctrine, which tolls statute of limitations in attorney malpractice cases, is that client has right to place confidence in attorney's ability and good faith during course of representation).
The doctrine Cole wishes to invoke is actually the "continuing violation" or "continuing harm" rule. It is well- established that this rule applies in Title VII claims, which is a type of § 1983 action. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (internal citations omitted) (statute of limitations period is extended for "all claims of discriminatory acts committed under an ongoing policy of discrimination"). Of course, Cole's claim is not brought under Title VII. However, while no decision within this circuit has been found in which this rule was applied to toll the statute of limitations for a deliberate indifference claim, the Second Circuit has recognized that the rule may apply in such a case. See Pino v. Ryan, 49 F.3d 51, 54 (affirming sua sponte dismissal of prisoner's deliberate indifference claim "where . . . the injuries complained of occurred . . . well outside the applicable three-year limitations period . . . and plaintiff has alleged no facts indicating a continuous or ongoing violation of his constitutional rights"). Further support for this view is provided by the fact that in Title VII cases brought in New York, as in this case, the statute of limitations period is borrowed from the New York three-year rule governing personal injury cases. See Morse v. University of Vermont, 973 F.2d 122, 126 (2d Cir. 1992).
Therefore, based on the continuing harm rule, Cole's claim against Miraflor accrued in or about January 1997.
At the time discovery was stayed, there were approximately eight months left to run on the statute of limitations if the harm continued through January 1997. The limitations period was equitably tolled during the stay of discovery. The stay was lifted on June 12, 2000, and on September 26, 2000, Cole requested permission to file a Second Amended Complaint identifying the Doe defendant, at which point approximately four more months had run on the statute of limitations. Therefore, the Second Amended Complaint was timely, and the motion to dismiss will be denied.
The Second Amended Complaint would also be timely if the November 17, 1996 accrual date were used, since, based on that date, there were approximately six months left of the limitations period when discovery was stayed.
Finally, it is noted that the Second Amended Complaint includes Artuz and Selwin as defendants. Since the claims asserted against those defendants have been dismissed, before filing the complaint Cole is directed to amend the caption to reflect that the only defendant is Miraflor.
Conclusion
Therefore, for the reasons set forth above, the motion to file a Second Amended Complaint is granted, and the motion to dismiss the Second Amended Complaint is denied. A pretrial order shall be filed within sixty (60) days, and the action marked ready for trial.
It is so ordered.