Opinion
03-CV-0736E(Sc).
June 4, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action, pursuant to 42 U.S.C. § 1983, alleging that defendants violated his Eighth and Fourteenth Amendment rights. Defendants have filed a motion to dismiss plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons stated hereinbelow, defendants' motion will be granted in part and denied in part.
Plaintiff's Complaint contains the following allegations. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), was incarcerated at the Gowanda Correctional Facility ("GCF") from November 1996 through May 29, 1999. Compl. ¶ 19. On May 26, 1999 plaintiff, who has had a history of kidney stones and related health problems, sought treatment at the infirmary because he was experiencing chills, sweats and abdominal pain. Id. ¶ 21. After being examined by staff at the infirmary, the plaintiff was returned to his unit without treatment. Id. ¶ 22. The next day, plaintiff again visited the infirmary, complaining that his symptoms had not improved and he had begun to urinate blood. Id. ¶ 23. Defendant Charles F. Kurtz, M.D., examined plaintiff, returned him to his unit and provided him with a prescription for Tylenol. Id. Plaintiff again visited the infirmary on Friday, May 28, complaining that his symptoms had worsened and requesting to see Dr. Kurtz or another physician. Such request was denied and he was instructed to return to his unit and continue taking the Tylenol. Id. ¶ 24.
According to the Complaint, "[d]efendants became personally aware of [p]laintiff's family history of, and personal experience of, kidney-related problems, including, but not limited to, multiple kidney stones, and the inability to treat the condition with common medicines due to [p]laintiff's allergies to said medicines." Compl. ¶ 20.
On Saturday, May 29, at approximately 3:45 a.m., plaintiff sought treatment from defendant Peter Comstock at the infirmary, complaining that he was suffering from severe abdominal pain, blood in his urine, uncontrollable vomiting and difficulty breathing and also that he had passed out three times as a result of these symptoms. Id. ¶ 25. While plaintiff requested to see a physician, he was advised by Comstock that no physician would be available for the next three days and was returned to his cell with instructions not to return to the infirmary until Tuesday, June 1. Id. ¶¶ 25-26, 29. For approximately the next six hours the plaintiff's condition continued to deteriorate and he began to experience difficulty ambulating, numbness in his extremities and severe chest pain. Id. ¶ 30. At approximately 10:05 a.m., plaintiff returned to the infirmary, at which time he was found to be suffering from "septic shock and system failure." Id. ¶ 32. Plaintiff was immediately transferred to Tri-County Memorial Hospital for emergency medical assistance. Ibid. Upon arriving at the hospital, plaintiff's blood pressure had dropped to zero and he had to be resuscitated. Id. ¶ 33. Hospital personnel diagnosed plaintiff with septic shock attributable to the longstanding nature of his kidney stone obstruction and admitted him for treatment. Id. ¶¶ 33-34.
Plaintiff alleges that Comstock indicated to him that "no doctor would be available * * * until June 1, 1999, after the Memorial Day Holiday weekend." Compl. ¶ 26.
Plaintiff subsequently filed a May 24, 2002 action in connection with such incidents against the defendants in New York State Supreme Court, Rockland County. The defendants then moved to dismiss the complaint for lack of subject matter jurisdiction. The Supreme Court granted their motion on April 2, 2003, indicating that the plaintiff should have commenced the action in the New York State Court of Claims. See Ex. D to Decl. of Donald J. Feerick, Jr., Esq. On April 9, 2003, defendants served plaintiff with Notice of Entry of the Supreme Court's Order. Plaintiff subsequently commenced this action on September 30, 2003.
In support of their motion to dismiss, defendants argue that (1) plaintiff's claims are barred by the applicable statute of limitations, (2) defendant Goord should be dismissed due to his lack of personal involvement, (3) defendants GCF and DOCS are immune from this action pursuant to the Eleventh Amendment and (4) plaintiff's pendent state law claims are barred by the applicable New York Correction Law.
With regard to defendants' first two arguments, plaintiff contends that (1) his claims are not barred because of section 205(a) of New York's Civil Practice Law and Rules ("CPLR") and (2) the Complaint alleges facts showing Goord's personal involvement sufficient to defeat defendants' motion.
When ruling on a motion to dismiss for failure to state a claim pursuant to FRCvP 12(b)(6), this Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor" — Phelps v. Kapnolas, 308 F.3d 180, 184 (2d Cir. 2002) (citation omitted) — and cannot dismiss the complaint "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, this Court must not consider whether the claims will ultimately be successful, but merely "assess the legal feasibility of the complaint." Cooper v. Parksy, 140 F.3d 433, 440 (2d Cir. 1998). Moreover, when reviewing a motion to dismiss, this Court must of course limit its review to the face of the Complaint and documents incorporated therein. See Newman Schwartz v. Asplundh Tree Expert Co., 102 F.3d 660, 662 (2d Cir. 1996).
The statutory period of limitations for plaintiff's claims is three years. Owens v. Okure, 488 U.S. 235, 251 (1989); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). The limitations period for plaintiff's claims began to accrue on May 29, 1999 and therefore ended on May 29, 2002. However, this Court is "obligated not only to apply the analogous New York statute of limitations to * * * federal constitutional claims, but also to apply the New York rule for tolling that statute of limitations." Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir. 1990) (quoting Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 483 (1980)). CPLR § 205(a) provides that a plaintiff "whose action was timely commenced but subsequently terminated by reason other than voluntary discontinuance, neglect to prosecute, a lack of personal jurisdiction or a final judgment on the merits, may recommence the action within six months of the termination of the prior action even though the applicable Statute of Limitations period has expired in the interim." Hertz v. Schiller, 657 N.Y.S.2d 652, 653 (1st Dep't 1997); Rivera v. Pataki, 2003 WL 21511939, at *9 (S.D.N.Y. 2003); Cross v. Corrs. Sargeant Radomski, 2004 WL 345581, at *3 (S.D.N.Y. 2004); Richardson v. Romano, 2003 WL 1877955, at *2 n. 1 (N.D.N.Y. 2003). There is no doubt that the instant action is based on the same incident that was the basis for plaintiff's May 24, 2002 state court action. Thus, plaintiff's section 1983 claims, which were brought after the three-year limitations period, will not be time-barred if (1) the state court action was timely commenced, (2) the present action was commenced within six months of the termination of the state court action and (3) service upon the defendants was effected within six months of the termination of the state court action. Plaintiff's state court action was timely commenced inasmuch as he filed a summons and complaint on May 24, 2002. See Feerick Decl., Ex. B. The state court's Order dismissing plaintiff's action for lack of subject matter jurisdiction was entered on April 2, 2003. The six-month period for commencement of a new action under CPLR § 205 began to run from that date. Yates v. Genesee County Hospice Found., Inc., 750 N.Y.S.2d 727, 728 (4th Dep't 2002), leave to appeal denied, 99 N.Y.2d 511 (2003) (Table). Therefore, plaintiff had until October 2, 2003 to commence this action and to serve process on the defendants. Plaintiff timely commenced this action by filing his Complaint on September 30, 2003. Plaintiff also effected service of process on Goord and Comstock within the six-month period. See January 28, 2004 Certificate of Service, Docket #9, 11. Thus, plaintiff's claims against Goord and Comstock are not barred by the statute of limitations. However, plaintiff did not effect service on Koup, Kurtz or Williams within the six-month period. Ibid. Therefore, plaintiff's claims as against Koup, Kurtz and Williams will be dismissed because they are barred by the statute of limitations.
CPLR § 205(a) provides: "If an action is timely commenced and is terminated in any other manner than by a voluntary discontinuance, a failure to obtain personal jurisdiction over the defendant, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits, the plaintiff, or, if the plaintiff dies, and the cause of action survives, his or her executor or administrator, may commence a new action upon the same transaction or occurrence or series of transactions or occurrences within six months after the termination provided that the new action would have been timely commenced at the time of commencement of the prior action and that service upon defendant is effected within such six-month period."
Defendants contend that plaintiff's state court action was not timely commenced because some of the defendants were never served process in that proceeding. However, service of process does not mark the commencement of a civil case under New York law. Rather, plaintiff's state court action was commenced upon the filing of the summons and complaint. See CPLR § 304 ("An action is commenced by filing a summons and complaint or summons with notice."). Service of process is a separate and follow-up procedure. Thus, plaintiff's state court action was timely commenced.
Comstock and Goord were both served on October 1, 2003.
Koup and Kurtz were served on October 9, 2003; Williams was served on November 14, 2003.
The Court now turns to defendants' argument regarding Goord's purported lack of personal involvement. A plaintiff seeking monetary damages under a section 1983 claim cannot recover based on the doctrine of respondeat superior. Al-Jundi v. Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989). "It is well settled in this Circuit that `personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under § 1983.'" Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995) (quoting Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994)). The personal involvement of a supervisory defendant may be shown by evidence that
"(1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring." Id. at 873.
Plaintiff's Complaint fails to state a cause of action against Goord because he does not allege that Goord was personally involved in the alleged constitutional deprivation. Plaintiff merely alleges that Goord is liable for the alleged misconduct of GCF personnel due to his role as DOCS Commissioner with "oversight responsibility" over the defendants. Compl. ¶ 70. In addition, plaintiff alleges that Goord was aware of previous conduct whereby GCF staff had inflicted cruel and unusual punishment against GCF prisoners and that Goord's failure to correct such abuses, which posed an unreasonable risk of harm to plaintiff, amounted to gross negligence or deliberate indifference. Id. ¶¶ 71-75. However, while the failure to supervise, if "so severe as to reach the level of `gross negligence' or `deliberate indifference' to the deprivation of the plaintiff's constitutional rights," suffices to state a cause of action under section 1983, plaintiff has failed to state (1) the manner in which the supervisory staff at GCF were improperly trained, (2) how Goord allegedly knew of the past instances of misconduct, (3) assuming awareness of the past conduct, how such awareness posed an unreasonable risk to plaintiff, (4) that Goord somehow knew of plaintiff's medical condition or (5) facts which could support a showing of "grossly negligent" conduct. Such failures are fatal to plaintiff's claims against Goord. See Colon, at 873-874 (affirming summary judgment in favor of DOCS Commissioner because plaintiff's complaint set forth no facts to plaintiff's own knowledge that related to the Commissioner); see also ibid. ("The bare fact that [the Commissioner] occupies a high position in the New York prison hierarchy is insufficient to sustain [plaintiff's] claim."); Nunez v. Goord, 172 F. Supp.2d 417, 433-434 (S.D.N.Y. 2001) (citing Colon and noting that plaintiff's allegations, which linked Goord to his claim based merely on Goord's position as DOCS Commissioner, lacked the requisite showing of personal involvement).
Owens v. Haas, 601 F.2d 1242, 1246 (2d Cir. 1979) (citations omitted).
Finally, plaintiff concedes that the pendent state law claims asserted in his Complaint are barred by the applicable New York Correction Law. See Pl.'s Mem. of Law, at 4. Therefore, plaintiff's seventh and eighth causes will be dismissed. Plaintiff also does not oppose defendants' motion to dismiss with respect to defendants GCF and DOCS. Id. at 4.
Accordingly, it is hereby ORDERED that defendants' motion to dismiss is granted with respect to all of the defendants except Peter Comstock, that all of the defendants except Comstock are dismissed from this case, that plaintiff's state law claims — to wit, his seventh and eighth causes of action — are dismissed and that the Clerk of this Court shall change the caption to read
"DANIEL BARAD, Plaintiff,
-vs-
PETER COMSTOCK, individually and as an employee, agent or servant of Gowanda Correctional Facility, Defendant."