Shomo v. City of New York

• Decision Date: 13 August 2009
• Docket Number: Docket No. 07-1208-cv.
• Citation: 579 F.3d 176
• Parties: Jose J. SHOMO, Plaintiff-Appellant, v. CITY OF NEW YORK, City of New York Department of Corrections, William Fraser. Eric Perry, Warden John Doe, John Doe #5, John Doe # 4, John Doe # 2, Jane Doe # 3, Capt. Swartz, C.O. Little, St. Barnabas Hospital Correctional Health Service, Sgt. Wright, Dr. Saroja Singh, MD, Dr. Marie Francois, Defendants, Dr. Joy Myers, Dr. Shahid Nawaz, Dr. Rameen Seegobin, Defendants-Appellees.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Second Circuit

579 F.3d 176

Jose J. SHOMO, Plaintiff-Appellant, v. CITY OF NEW YORK, City of New York Department of Corrections, William Fraser. Eric Perry, Warden John Doe, John Doe #5, John Doe # 4, John Doe # 2, Jane Doe # 3, Capt. Swartz, C.O. Little, St. Barnabas Hospital Correctional Health Service, Sgt. Wright, Dr. Saroja Singh, MD, Dr. Marie Francois, Defendants, Dr. Joy Myers, Dr. Shahid Nawaz, Dr. Rameen Seegobin, Defendants-Appellees.^*

Docket No. 07-1208-cv.

United States Court of Appeals, Second Circuit.

Argued: April 1, 2009.

Decided: August 13, 2009.

Petition for Rehearing Decided: September 2, 2009.

Lee G. Dunst, Gibson Dunn & Crutcher LLP, New York, NY, for Plaintiff-Appellant.

Suzanne K. Colt, Assistant Corporation Counsel, (Pamela Seider Dolgow, Assistant Corporation Counsel, on the brief), for Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellees.

Before JACOBS, Chief Judge, and POOLER, Circuit Judge.^**

Chief Judge JACOBS concurs in a separate opinion.

POOLER, Circuit Judge:

Plaintiff-appellant Jose J. Shomo appeals from the judgment of the United States District Court for the Southern District of New York (Hellerstein, J.), (1) dismissing his pro se Eighth Amendment claims of medical indifference against several named and unnamed defendants without leave to amend; (2) dismissing his Americans with Disabilities Act of 1990 ("ADA") and Rehabilitation Act of 1973 claims against all defendants without leave to amend; and (3) on summary judgment, dismissing his Eighth Amendment claims against three remaining defendants. We hold that the continuing violation doctrine can apply to Eighth Amendment claims of medical indifference brought under 42 U.S.C. § 1983 when the plaintiff shows an ongoing policy of deliberate indifference to his or her serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period. We affirm in part and vacate in part the district court's dismissal of the Eighth Amendment claims at the pleading stage, and grant Shomo, who was pro se before the district court, leave to amend his Eighth Amendment claims as to certain defendants. The district court's dismissal of the ADA and Rehabilitation Act claims is also vacated for the court to provide Shomo with leave to replead those claims. We decline to revisit the decision of a motions panel of our Court that affirmed the district court's grant of summary judgment on the Eighth Amendment claims against three defendants.¹

BACKGROUND

I. Factual Background

According to the complaint, Shomo was in the custody of the New York City Department of Corrections ("DOC") from September 20, 1999, to January 4, 2001. On September 20, 1999, the day that Shomo entered DOC custody, he was diagnosed with right arm paralysis and limited use of his left arm. Shomo alleges that several doctors ordered that he receive assistance with activities of daily living (ADLs), be transferred to specialized infirmary housing, and receive various treatments. Shomo further alleges that, despite the prior treatment recommendations, DOC medical personnel and security staff repeatedly refused to offer assistance with ADLs, to transfer him to specialized infirmary housing, or to provide the recommended treatments.

II. Procedural Background

On September 26, 2003, Shomo filed a pro se Section 1983 lawsuit against thirteen named defendants and several unnamed defendants. Shomo brought claims for Eighth Amendment medical indifference, violations of the ADA and Rehabilitation Acts, municipal liability, assault, and destruction of property.

Defendants filed a motion to dismiss Shomo's complaint. While Shomo did not explicitly allege any acts of deliberate indifference within the three-year statute of limitations applicable to Section 1983 claims, the district court held that the continuing violation doctrine applied to Shomo's Eighth Amendment claims. Therefore, the district court dismissed Shomo's deliberate indifference claims as untimely, but granted Shomo leave to replead as to Dr. Myers, Dr. Seegobin, and Dr. Nawaz based upon the continuing violation doctrine. The district court granted the motion with prejudice as to the other named and unnamed defendants, concluding that Shomo failed to state a claim against those defendants. With regard to Shomo's claims under the ADA and the Rehabilitation Act, the district court expressly declined to consider whether those claims were time-barred. Instead, it ruled that "Shomo clearly lacks a cause of action under either statute," and dismissed the claims as to all defendants.

On June 6, 2005, Shomo filed an amended complaint against Dr. Myers, Dr. Seegobin, and Dr. Nawaz, who answered on August 3, 2005. On October 5, 2006, those defendants moved for summary judgment. On January 10, 2007, the district court found that the claims against Dr. Nawaz and Dr. Seegobin were time-barred. The court also found that the claims against Dr. Myers should be dismissed because "no facts in the record" showed deliberate indifference to Shomo's serious medical needs.

On January 22, 2007, Shomo timely appealed. A motions panel appointed counsel to address the district court's partial grant of defendants' motion to dismiss without leave to amend, and to address "any other relevant issues." The motions panel dismissed Shomo's appeal of the district court's summary judgment ruling in favor of Dr. Myers, Dr. Seegobin, and Dr. Nawaz. Shomo filed a motion for reconsideration, arguing that the district court denied or discouraged him from obtaining discovery and, therefore, prevented him from adequately opposing defendants' motion for summary judgment. The motions panel also denied the motion for reconsideration.

In his counseled brief on appeal, Shomo argues that (1) the district court erred in failing to provide a pro se litigant with the opportunity to amend his complaint; (2) the district court improperly dismissed the ADA and Rehabilitation Act claims; and (3) the district court's discovery orders prevented Shomo from obtaining information necessary to meaningfully oppose summary judgment. With respect to the last argument, Shomo claims as he must that the motions panel's dismissal of the appeal of the summary judgment order should be revisited.

DISCUSSION

I. Eighth Amendment Medical Indifference Claims

A. The Statute of Limitations and Continuing Violation Doctrine

The statute of limitations for claims brought under Section 1983 is governed by state law, and in this case is the three-year period for personal injury actions under New York State law. See Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir.1997). A Section 1983 claim ordinarily "accrues when the plaintiff knows or has reason to know of the harm." Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir.1994) (quotation marks omitted). The continuing violation doctrine is an "exception to the normal knew-or-should-have-known accrual date." Harris v. City of New York, 186 F.3d 243, 248 (2d Cir.1999). When the plaintiff brings a Section 1983 claim challenging a discriminatory policy, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694, 703 (2d Cir.1994) (quotation marks omitted); see also Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116-17, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (stating the same of hostile work environment claims under Title VII). To trigger the continuing violation doctrine when challenging discrimination, the plaintiff "must allege both the existence of an ongoing policy of discrimination and some non-time-barred acts taken in furtherance of that policy." Harris, 186 F.3d at 250.

We have not before explicitly held that the continuing violation doctrine can delay accrual of an Eighth Amendment claim alleging a policy of deliberate indifference to serious medical needs. Cf. Pino v. Ryan, 49 F.3d 51, 54 (2d Cir.1995) (finding that a prisoner's Eighth Amendment claims were untimely, among other reasons, because the complaint "alleged no facts indicating a continuous or ongoing violation of his constitutional rights"). Shomo's complaint presents the question of whether the continuing violation doctrine is applicable to such claims. Shomo's complaint was filed on September 26, 2003, and did not allege any specific acts of deliberate indifference occurring after September 26, 2000. The district court observed that Shomo's Eighth Amendment claims would be time-barred unless the continuing violation doctrine were applicable, and held that it was.

In Morgan, the United States Supreme Court held that a hostile work environment claim under Title VII is timely, and can challenge acts occurring outside the statute of limitations period, as long as "any act that is part of the hostile work environment" occurs within the statutory time period. 536 U.S. at 118, 122 S.Ct. 2061. The Court applied the continuing violation doctrine because a hostile work environment claim challenges "repeated conduct" that "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. at 115, 122 S.Ct. 2061. Thus, under Morgan, the continuing violation doctrine can be applied when the plaintiff's claim seeks redress for injuries resulting from "a series of separate acts that collectively constitute one `unlawful [act],'" but the doctrine cannot be applied when the plaintiff challenges conduct that is a discrete unlawful act. Id. at 117, 122 S.Ct. 2061; see also Washington v. County of Rockland, 373 F.3d 310, 318 (2d Cir.2004).

The Seventh Circuit in Heard v. Sheahan considered whether the continuing violation doctrine applied to a prisoner's Eighth Amendment claim that prison officials delayed giving him medical attention despite his hernia and disregarded the recommendation of doctors that he undergo surgery....