Ashley v. N.Y. State Office of Children & Family Servs.

• Decision Date: 24 June 2014
• Docket Number: Civil Action No. 13–30197–KPN.
• Citation: 33 F.Supp.3d 76
• Court: U.S. District Court — District of Massachusetts
• Parties: Randall ASHLEY, Plaintiff v. NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Berkshire Medical Center, Inc, and Dr. Steven Silver, Defendants.

33 F.Supp.3d 76

Randall ASHLEY, Plaintiff

v.NEW YORK STATE OFFICE OF CHILDREN AND FAMILY SERVICES, Berkshire Medical Center, Inc, and Dr. Steven Silver, Defendants.

Civil Action No. 13–30197–KPN.

United States District Court, D. Massachusetts.

Signed June 24, 2014.

Randall Ashley, Upstate Correctional Facility, Malne, NY, pro se.

Dennis M. LaRochelle, Cain, Hibbard, & Myers, PC, Pittsfield, MA, for Berkshire Medical Center, Inc.

John G. Bagley, Jeffrey K. O'Connor, Morrison Mahoney LLP, Springfield, MA, for Dr. Steven Silver.

MEMORANDUM AND ORDER WITH REGARD TO DEFENDANTS' MOTIONS TO DISMISS (Document Nos. 18 and 26)

NEIMAN, United States Magistrate Judge.

Proceeding pro se, Randall Ashley (“Plaintiff”), an inmate at the Bane Hill Correctional Facility in Malone, New York, commenced this medical malpractice action in the United States District Court for the Southern District of New York against Berkshire Medical Center (“BMC”), Dr. Steven Silver, and the New York State Office of Children and Family Services (“Children and Family Services”). The claims arise out of a medical procedure performed in 1994. District Judge Loretta A. Preska dismissed the claims against Children and Family Services under 28 U.S.C. § 1915A(a) on Eleventh Amendment state sovereign immunity grounds and transferred the remaining claims against BMC and Dr. Silver to this court pursuant to 28 U.S.C. § 1406(a).

BMC and Dr. Silver (together, “Defendants”) have since filed motions to dismiss.

The parties have consented to this court's jurisdiction. See 28 U.S.C. § 636(c) ; Fed.R.Civ.P. 73. For the following reasons, the court will grant Defendants' motions.

I. Standard of Review

When faced with a Rule 12(b)(6) motion to dismiss for failure to state a claim, the court must accept the allegations of the complaint as true, drawing all reasonable inferences in favor of the plaintiff. See Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ; Coyne v. City of Somerville, 972 F.2d 440, 443 (1st Cir.1992). Moreover, “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of what that ... claim is and the grounds upon which it rests.’ ” Sepulveda–Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 28 (1st Cir.2010). Recently, the Supreme Court made clear that, under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), a complaint that states a plausible claim for relief, on its face, will a survive a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. Still, a pro se plaintiff is “entitled to liberal construction of his allegations, no matter how inartfully pled.” Stern v. Haddad Dealerships of The Berkshires, Inc., 477 F.Supp.2d 318, 321 (D.Mass.2007).

II. Background

The following facts come directly from Plaintiff's complaint and are stated in a light most favorable to him. Young v. Lepone, 305 F.3d 1, 8 (1st Cir.2002). In 1994, Plaintiff, who was thirteen years-old, was in the custody of Children and Family Services, which sent him to BMC in Pittsfield, Massachusetts, “to have me[t]al pins” surgically inserted in his body. Dr. Silver, a Massachusetts resident, performed the operation, during which Plaintiff awoke but was put back to sleep. Plaintiff alleges that Dr. Silver, at some point, should have removed the pins, which remain in his left leg and cause severe pain. In fact, Plaintiff alleges, he has been in severe pain “for the past 19 years” as result of the pins. Plaintiff's mother, Terry Ashley, “knew of all the medical procedures that were ... administered and conducted” by BMC staff and Dr. Silver. In addition, Children and Family Services knew that the pins were to be removed but never sent Plaintiff to have the problem corrected. Plaintiff “tried several different attempts to contact them over the years, but they simply ignore[d]” him. On September 12, 2013, Plaintiff filed the instant complaint, which seeks as relief $10,000,000 for pain and suffering.

III. Discussion

Defendants primarily argue that Plaintiff's complaint is untimely and, therefore, should be dismissed. Unfortunately for Plaintiff's quest, the court agrees.¹

Because this diversity action was transferred to this venue under 28 U.S.C. § 1406(a), the court must apply Massachusetts choice of law rules as they affect the timeliness of Plaintiff's complaint. See Heinrich ex rel. Heinrich v. Sweet, 49 F.Supp.2d 27, 34 (D.Mass.1999) (“When a case is transferred pursuant to section 1406(a), the choice of law rules of the transferee forum apply, rather than the transferor forum.”); Gerena v. Korb, 617 F.3d 197, 204 (2d Cir.2010) (“If a district court receives a case pursuant to a transfer under 28 U.S.C. § 1406(a), for improper venue, ... it logically applies the law of the state in which it sits, since the original venue, with its governing laws, was never a proper option.”). Massachusetts choice of law rules, in turn, direct the court to apply Massachusetts substantive law since both defendants reside in Massachusetts and the alleged tort occurred here as well.See Dasha v. Adelman, 45 Mass.App.Ct. 418, 699 N.E.2d 20, 23–26 (1998) (discussing Massachusetts choice of law rules).

Under Massachusetts law, “any claim by a minor against a health care provider stemming from professional services or health care rendered, whether in contract or tort, based on an alleged act, omission or neglect shall be commenced within three years from the date the cause of action accrues, except that a minor under the age of six years shall have until his ninth birthday in which the action may be commenced.” Mass. Gen. Law. ch. 231, § 60D ; see also Mass. Gen. Law. ch. 260, § 4 (three year medical malpractice statute of limitations for non-minors).

Historically, it should be noted, claims by minors were tolled by M.G.L. c. 260, § 7, such that they did not accrue until the individual reached eighteen years of age. In 1976, however, the Massachusetts Legislature, by enacting M.G.L. c. 231, § 60D, excluded medical malpractice claims of minors from the general tolling provision of M.G.L. c. 260, § 7. See Harlfinger v. Martin, 435 Mass. 38, 754 N.E.2d 63, 68 (2001) ; Cioffi v. Guenther, 374 Mass. 1, 370 N.E.2d 1003, 1005 (1977). Accordingly, because Plaintiff was thirteen years-old at the time of the surgery, and not six years old or younger, the same three-year limitations period provided by both M.G.L. c. 231, § 60D and M.G.L. c. 260, § 4 applies. Still, pursuant to the “discovery rule” adopted by the Massachusetts Supreme Judicial Court (“SJC”), “[a] cause of action for medical malpractice does not accrue until a patient learns, or reasonably should have learned, that he has been harmed as a result of a defendant's conduct.” Harlfinger v. Martin, 435 Mass. 38, 754 N.E.2d 63, 67 n. 3 (2001) ; Franklin v. Albert, 381 Mass. 611, 411 N.E.2d 458, 459–60 (1980).

It is clear based on the facts alleged in his complaint that Plaintiff knew or reasonably should have known that he was harmed as a result of Defendants' conduct well before September of 2010 when he commenced the instant lawsuit and, therefore, his claims are barred by the statute of limitations. See Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 557 N.E.2d 739, 741 (1990) (“The important point is that the statute of limitations starts to run when an event or events have occurred that were reasonably likely to put the plaintiff on notice that someone may have caused her injury.”). Plaintiff specifically alleges that he has “been in severe pain for the past 19 years, as a result of the wrongful medical practices of Dr. Steven Silver.” He also alleges that he “tried several different attempts to contact [Children and Family Services] over the years, but they simply ignore[d]” him and that his mother was aware of the specifics of the procedure at that time.

To be sure, Plaintiff asserts in his response that, at the time, he was “clueless that a malpractice occured [sic] at the hands of Dr. Silver and BMC.” He also asserts that he only recently obtained a copy of his BMC medical records, which state that the pins were meant to be removed after one year. Generally, however, the court may only consider at the motion to dismiss stage the facts alleged in the complaint, and not additional assertions alleged in a response. See, e.g., Guckenberger v. Boston University, 957 F.Supp. 306, 311 n. 5 (D.Mass.1997) ; see also Frost v. F & R Realty Trust, 80 Mass.App.Ct. 1108, 2011 WL 4563022, at *1 (Mass.App.Ct. Oct. 4, 2011) (unpublished). Yet, even were the court to consider these additional assertions, Plaintiff's claims remain untimely. Read together with the facts alleged in the complaint, the additional assertions indicate that, while Plaintiff was not definitively aware at the time of the surgery that Defendants harmed him and only recently discovered that the pins were supposed to be removed after one year, he still was in pain for nineteen years commencing after the surgery. In light of this prolonged period of time, Plaintiff, as a matter of law, reasonably should have known that he was harmed by Defendants' conduct prior to September of 2010, even without the additional knowledge that the pins were meant to be removed after one year. See Bowen, 557 N.E.2d at 743 (“Reasonable notice that a particular product or a particular act of another person may have been a cause of harm to a plaintiff creates a duty of inquiry and starts the running of the statute of limitations.”).

Even if the court could somehow infer that the discovery rule saves Plaintiff's claims for purposes of the statute of limitations, e.g., that he reasonably...