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holding that plaintiff who had only alleged chest pains failed to satisfy objective prong
Summary of this case from Shepard v. KellyOpinion
02 Civ. 2407 (CBM)
September 4, 2003
Lawrence A. Vogelman, Shuchman Krause-Elmslie, Exeter, NH and Michael L. Spiegel, New York, NY, for Plaintiff
Kevin McCaffrey, Motley, J., for Defendants
MEMORANDUM OPINION ORDER
Defendants Judith Petty, R.N. ("Petty" or "Nurse Petty"); Houshang Shahim, M.D. ("Shahim" or "Dr. Shahim"); Donald Hanson; and Paul Dominguez move the court to partially dismiss the Second Amended Complaint in the above-captioned matter. Defendants Petty and Shahim have moved pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss claims alleging civil rights violations against Devon Roberts. In addition, defendants Petty, Shahim, Hanson, and Dominguez have moved to dismiss the supplemental state claims as time-barred. For the reasons set forth in the opinion below, defendants' partial motion to dismiss is GRANTED. plaintiff's' motion to extend the time to serve defendant Daniel Evertts by ninety days is DENIED.
Defendant Corrections Officer Donald Civitella has answered the Second Amended Complaint. Defendant Corrections Officer Daniel Evertts has not yet been served with the summons and complaint. On June 26, 2003, plaintiff's moved to extend the time within which to serve the Second Amended Complaint to Evertts. The court addresses this issue infra.
In the complaint's caption, plaintiff's note that plaintiff Devon Roberts is also known as "Devon Duffus."
I. Background
Plaintiff's are the Administrator of the Estate, wife, and daughter of former New York State inmate, Devon Roberts. Mr. Roberts was housed at the Green Haven Correctional Facility in Stormville, New York, after being convicted of murder in the second degree in Kings County, New York in 1994.
Plaintiff's contend that beginning on or around March 10, 2000, Mr. Roberts began to experience chest pains. Thereafter, according to the Second Amended Complaint, his health began to significantly deteriorate. Second Am. Complt., ¶ 13. plaintiff's contend that Mr. Roberts was continually nauseated and unable to keep down food. Id. They further claim that he rapidly lost weight and that he was dizzy and unsteady on his feet. Id. plaintiff's claim that despite "numerous complaints to the responsible prison officials, Mr. Roberts was denied appropriate medical attention." Id. As the court shall discuss infra, plaintiff's do not allege that the individual defendants named in the complaint are the "responsible prison officials" to whom plaintiff's claim Mr. Roberts reported his medical conditions.
On or about March 23, 2000, Mr. Roberts was transferred to the psychiatric satellite unit of the prison. Id. ¶ 14. The Second Amended Complaint does not explain why Mr. Roberts was taken to the psychiatric satellite unit, as opposed to any other unit of the prison healthcare system, for treatment. While there, plaintiff's allege that New York State Correctional Officers Donald Civitella and Daniel Evertts, unidentified defendants John and Jane Doe, Paul Dominguez and Donald Hanson beat, choked, and assaulted Mr. Roberts about the body. Id., ¶ 15. plaintiff's allege that during this altercation, Dr. Shahim prescribed and Nurse Petty administered 2 milligrams of Ativan and 50 milligrams of Thorazine to Mr. Roberts. Id., ¶ 16. Ativan is a brand name for injectable lorazepam, a medication which can have sedative, anti-anxiety and anti-convulsive effects. Thorazine is a brand name for chlorpromazine, a low-potency anti-psychotic drug. plaintiff's claim that Mr. Roberts did not give defendants permission to administer these drugs to him. Id. During the violent encounter which allegedly took place between Mr. Roberts and defendants, Mr. Roberts allegedly suffered mortal injuries. He subsequently died of asphyxiation. Id., ¶ 17.
Plaintiff's claim that defendants Civitella, Evertts, Petty, Dominguez, Hanson, Shahim, and unidentified defendants John and Jane Doe acted with "deliberate indifference to the risk of bodily harm and/or death to Mr. Roberts." Id., ¶ 18. plaintiff's further allege that these defendants, exerting force "far in excess of the reasonable force necessary under the circumstances, and/or failing to protect" Mr. Roberts from such force, id., ¶ 18, ultimately caused the violent death of Mr. Roberts, in violation of 42 U.S.C. § 1983 ("Section 1983") and the Fourth, Fifth, Eighth, and Fourteenth Amendments to the Federal Constitution. Id., ¶ 19. Plaintiff Crystal Duffus, Mr. Roberts' daughter, claims that defendants' alleged conduct has deprived her of rights, guaranteed under Section 1983, to companionship, guidance, support, intimacy, and parenting services of Mr. Roberts. Id., ¶ 20. Plaintiff Sharon Roberts, Mr. Roberts' wife, claims that said conduct has deprived her of rights to consort, services, society, and sexual relations with Mr. Roberts. Id., ¶ 23. Finally, plaintiff's bring supplemental state law claims against defendants Shahim, Petty, Dominguez, and Hanson, alleging trespass, illegal seizure, assault and battery, negligence resulting in injury, wrongful death, intentional infliction of emotional distress, and conspiracy to commit and cover up the acts described above. Id., ¶ 26.
II. Procedural History
This case was transferred to the undersigned from the chambers of U.S. District Judge Deborah A. Batts on July 9, 2002. On June 20, 2002 defendants Charles R. Greiner, the Superintendent of Green Haven Correctional Facility, and Corrections Officers Lemon, Civitella, and Corkery moved to dismiss plaintiff's' First Amended Complaint pursuant to Fed.R.Civ.P. Rule 12(b)(1) and Rule 12(b)(6). Defendants argued that plaintiff's could not maintain their claims against Superintendent Greiner because they had failed to allege facts describing his personal involvement in the constitutional violations alleged in the complaint. plaintiff's argued that they had alleged that Greiner was "deliberately indifferent to the physical and mental welfare of Devon Roberts" and that he "failed to provide Devon Roberts with the medical care and medication appropriate to his condition. . . ." First Am. Complt., ¶ 18. In addition, defendants argued that the supplemental state law claims brought against prison employees were barred by applicable state law.
A plaintiff fails to state a claim where a complaint does no more than allege that a defendant was in charge of an office. See Dean v. Abrams, 1995 WL 791966, at *2 (S.D.N. Y. Dec. 26, 1995). The plaintiff must allege the defendant's personal involvement or a "tangible connection between the acts of a defendant and the injuries suffered." Bass v. Jackson, 790 F.2d 260, 263 (2d Cir. 1986). In the absence of personal involvement of a supervisor "in the allegedly unlawful conduct of his subordinates," the court must dismiss the complaint. See, e.g., Gill v. Mooney, 824 R2d 192, 196 (2d Cir. 1987). "In cases where the allegation is the denial of medical treatment, a claim is legally sufficient only when it is established that the prison official who is named as a defendant was 'deliberately indifferent either to a prisoner's existing serious medical needs or to conditions imposing a serious risk of future harm.'" Joyner v. Greiner 195 F. Supp.2d 500, 505 (S.D.N.Y. 2002) (citing Sonds v, St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303, 309). "Allegations which are nothing more than broad, simple and conclusory statements are insufficient to state a claim under § 1983." Alfaro Motors, Inc. v. Ward, 814 R2d 883, 887 (2d Cir. 1987). Accordingly, at the October 21, 2002 pretrial conference, the court granted defendants' motion to dismiss the claims against Greiner with respect to claims against him for allegedly unlawful conduct of his subordinates. See Order, October 21, 2002.
A federal court considering the issue of pendent jurisdiction must look to the substantive law of the state in adjudicating the state claims.United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966). No civil action can be brought in a New York State Court against prison employees for damages arising out of "any act done or the failure to perform any act within the scope of employment and in the discharge of the duties of such officer or employee." New York Corr. Law § 24. See also Baker v. Coughlin, 77 F.3d 12, 16 (1996) (state law claims appended to plaintiff's federal claims must be dismissed "because a New York State Court would have dismissed [plaintiff's] state law claims against [defendants] pursuant to [N.Y.S. Corr. Law] § 24"). plaintiff's essentially conceded this point. Accordingly, at the pretrial conference, the court dismissed the pendent state law claims. See Order, October 21, 2002. The court granted plaintiff's leave to file and serve the Second Amended Complaint. The court now entertains defendants' partial motion to dismiss the Second Amended Complaint.
III. DISCUSSION
A. Motion to Dismiss Standard
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint. The motion should be granted "only if it is clear that no relief could be granted under any set of facts consistent with the allegations." Hishon v. King Spalding. 467 U.S. 69, 104 S.Ct. 2229 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957)). The function of the court in this context is "merely to assess the legal feasibility of the complaint, not to assay the legal feasibility of the evidence which might be offered in support thereof."Geisler v. Petrocelli. 616 R2d 636, 639 (2d. Cir. 1980). It is well-settled that the court must accept as true the nonmovant's well-pleaded factual allegations. See Allen v. WestPoint-Pepperell, Inc., 945 R2d 40, 44 (2d Cir. 1991).
B. Eighth Amendment "Deliberate Indifference" Claim
In an action brought under 42 U.S.C. § 1983, the plaintiff must establish that a person acting under color of state law deprived him of a federal constitutional right. Gomez v. Toledo. 446 U.S. 635, 640, 100 S.Ct. 1920 (1980). Defendants Petty and Shahim argue that to the extent that plaintiff's raise an Eighth Amendment claim of deliberate indifference to Mr. Roberts' serious medical needs, such a claim must be dismissed.
It is possible, reading the complaint generously, to cull three potential Eighth Amendment claims from the complaint. plaintiff's appear to claim that defendants Dr. Shahim and Nurse Petty violated Mr. Roberts' Eighth Amendment rights by (1) failing to adequately address his initial complaints about various medical conditions (e.g., chest pains, dizziness) before he was taken to the psychiatric satellite unit; (2) failing to take any action whatsoever in response to his initial complaints about these medical conditions before he was taken to the psychiatric satellite unit; and/or (3) failing to provide Mr. Roberts with adequate or appropriate medical care when Dr. Shahim prescribed and Nurse Petty administered the injections of Ativan and Thorazine on March 24, 2000. For the sake of clarity, the court will again discuss the allegations made in the Second Amended Complaint.
Plaintiff's claim that on or about March 10, 2000, Mr. Roberts began to experience chest pains. Second Am. Complt., ¶ 13. plaintiff's claim that Mr. Roberts was nauseated and unable to keep down food; that he rapidly lost weight; that he was dizzy, light-headed, and unsteady on his feet. Id. The Second Amended Complaint states that "[d]espite numerous complaints to the responsible prison officials, [Mr. Roberts] was denied appropriate medical attention." Id. (emphasis added). plaintiff's also allege that "without regard to the risks involved, in violation of the duty owed to plaintiff . . . to provide appropriate medical care," id., ¶ 16, Dr. Shahim prescribed and Nurse Petty administered injections of 2 mg of Ativan and 50 mg of Thorazine to Mr. Roberts (emphasis added). plaintiff's appear to claim that these actions evinced "deliberate indifference to the risk of bodily harm and/or death" to Roberts. Id., ¶ 18. Thus, plaintiff's allege that "all the defendants, acting with deliberate indifference, failed to appropriately render Devon Roberts medical care. This deliberate indifference, along with the use of excessive force, resulted in Devon Roberts' death." P1's Reply Mem. at 2 (emphasis added).
The Eighth Amendment, made applicable to the states by the Fourteenth Amendment, prohibits the infliction of "cruel and unusual punishment."See Farmer v. Brennan. 511 U.S. 825, 114 S.Ct. 1970 (1994) (holding that the Eighth Amendment is applicable to the treatment and conditions of confinement of prison inmates). In addition, the court recognizes the state's constitutional obligation to provide inmates with adequate medical care. See id at 832. Although the complaint is not clear on the issue, plaintiff's' claim here appears to be that "all the defendants" violated Roberts' Eighth Amendment rights by failing to "appropriately render Devon Roberts medical care." See PL's Reply Mem. at 2. plaintiff's contend that the deliberate indifference of all of the defendants to Mr. Roberts' medical needs, in combination with the use of excessive force against him during the March 24, 200 incident, resulted in his death.Id. Deliberate indifference to the serious medical needs of someone in state custody is a violation of the Eighth Amendment inasmuch as it is the equivalent of "unnecessary and wanton infliction of pain." See Estelle v. Gamble. 429 U.S. 97, 104 (1976). In order for the plaintiff to state a cognizable claim under Section 1983 for inadequate medical care, an inmate must allege acts or omissions sufficiently harmful to evidence "deliberate indifference" to his serious medical needs. Estelle, 429 U.S. at 104.
In order to make out a constitutional claim under the deliberate indifference standard, the plaintiff must meet two requirements. First, the plaintiff's medical need must be "serious." Flemming v. Velardi. 2003 WL 21756108, at *2 (S.D.N.Y. July 30, 2003) (citing Wilson v. Seiter 501 U.S. 294, 298 (1991); Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). Second, the facts must give rise to an inference that the persons charged with providing medical care knew of those serious medical needs and intentionally disregarded them. Flemming. 2003 WL 21756108, at *2;Harrison v. Barkley, 219 F.3d 132, 137 (2d Cir. 2000); Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). In order to satisfy the second prong of the analysis, the defendant prison official must have acted with a sufficiently culpable state of mind. That is, he must:
know of and disregard an excessive risk to inmate health and safety; the official must be both aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw this inference.Hathaway, 37 F.3d at 66 (quoting Framer. 114 S.Ct., at 1979).
Having set forth the two-stage analysis of an Eighth Amendment claim of deliberate indifference to a serious medical condition, the court now considers whether plaintiff's' allegations satisfy both the objective and subjective prongs with regard to individual defendants Shahim and Petty.
Denial of Appropriate Medical Treatment in Response to the Seven Conditions Before Alleged Altercation
Plaintiff's first allege that Mr. Roberts informed "the responsible prison officials" that he was suffering from a number of ailments, including: (1) chest pain; (2) nausea; (3) inability to "keep food down"; (4) rapid weight loss; (5) dizziness; (6) light-headedness; and (7) unsteadiness. See Second Am. Complt., ¶ 13. Mr. Roberts' Eighth Amendment claim with respect to these particular complaints about these seven conditions is that he was "denied appropriate medical attention."Id (emphasis added).
Starting with the objective prong of the analysis, the court must determine whether Mr. Roberts' medical conditions were sufficiently serious to constitute a constitutional violation. A condition is "sufficiently serious" under the Eighth Amendment if it is "a condition of urgency, one that may produce death, degeneration, or extreme pain." Hathaway. 37 F.3d at 66 (citing Nance v. Kelly, 912 F.2d 605, 607 (2d Cir. 1990) (Pratt, J., dissenting). The court does not believe that any of plaintiff's' individual ailments constitutes a sufficiently serious condition under the objective prong. For example, while a severe heart condition can be sufficiently "serious," see Adams v. Franklin. 111 F. Supp.2d 1255, 1270 (M.D. Ala. 2000), in the instant case, plaintiff alleges that he was experiencing "chest pains." Second Am. Complt., ¶ 13. Under the prevailing standard, this does not constitute a sufficiently serious condition. See, e.g., McCoy v. Goord 225 F. Supp.2d 233, 260 (S.D.N.Y. 2003) (plaintiff who claimed that prison officials failed to treat him for chest pains did not make out an Eighth Amendment claim of deliberate indifference, noting that plaintiff failed to allege a serious medical condition). Moreover, the court has not been convinced that digestion problems, weight loss, and dizziness are conditions "of urgency, . . . [which] may produce death, degeneration, or extreme pain." Hathaway, 37 F.3d at 66.
The court hesitates to rule that occurring in concert. and if characterized by a remarkable degree of severity, these seven conditions could never manifest themselves with sufficient urgency or in such a manner as to produce death or extreme pain. That is, the court is reluctant to rule that these conditions taken together could not, in any circumstances which might reasonably be interpreted from the language of the complaint, be sufficiently severe and serious to state an Eighth Amendment claim.
Luckily, it is not necessary to do so. Even assuming arguendo that they could somehow satisfy the objective prong, plaintiff's clearly falter at the second stage of the analysis. plaintiff's claim that on or after March 10, 2000, Mr. Roberts began to complain to certain unidentified prison officials of various ailments. See Second Am. Complt., ¶ 13. plaintiff's allege that these officials denied Mr. Roberts "appropriate medical attention." Id. plaintiff's go on to allege that on or about March 23, 2000, Mr. Roberts was transferred (presumably from his jail cell, though plaintiff's do not say) to the psychiatric satellite unit of the prison. It appears, then, that at least by March 23, 2000, Mr. Roberts was receiving some medical attention. Finally, plaintiff's plainly acknowledge that on March 24, 2000, Dr. Shahim prescribed and Nurse Petty administered injections of Ativan and Thorazine to Mr. Roberts. Id., ¶ 16. It is possible that plaintiff's simply disagree with the course of action taken by Dr. Shahim and Nurse Petty with respect to Mr. Roberts health once he was under their care and supervision. But "[i]t is well-established that mere disagreement over proper treatment does not create a constitutional claim." Flemming. 2003 WL 21756108, at *3. If plaintiff's are, indeed, expressing disagreement with defendants' ultimate response to his complaints about the seven medical conditions, then he fails to state an Eighth Amendment claim of deliberate indifference.
In any event, in order to satisfy the subjective prong of the analysis there must be some evidence that the health care providers "knowingly and intentionally rendered inappropriate treatment." Joyner v. Greiner. 195 F. Supp.2d 500, 503 (S.D.N.Y. 2002) (citing Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970 (1994)). "Deliberate indifference requires more than negligence, but less than conduct undertaken for the very purpose of causing harm." Hathaway. 37 F.3d at 66 (citing Framer. 511 U.S. at 835-36). In the absence of culpable recklessness, "[m]ere medical malpractice is not tantamount to deliberate indifference. . . ." Cuoco v. Moritsugu. 222 F.3d 99, 107 (2d Cir. 2000).
[A]lthough this court has held that insufficient or improper medical treatment may, in aggravated cases, state a claim under 42 U.S.C. § 1983, we have also recognized that the conduct should be so harmful that it can properly be characterized as a "barbarous act" that "shocks the conscience." (citations omitted).United States v. McGinnis, 429 F.2d 864, 866 (2d Cir. 1970).
Plaintiff's cannot satisfy this subjective element of the analysis. Indeed, they fail to allege that Dr. Shahim or Nurse Petty knew of and, with that knowledge, were deliberately indifferent to the conditions — e.g., chest pains, dizziness, digestive problems — of which Mr. Roberts complained. plaintiff's do not allege that Mr. Roberts complained to Dr. Shahim or Nurse Petty of any pain, discomfort, or any condition that was "fast-degenerating" or "life threatening." plaintiff's do not claim that Dr. Shahim or Nurse Petty were ever informed by the unidentified officials to whom Mr. Roberts complained, or anyone else, of his seven medical conditions. "[T]he official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837, 114 S.Ct. 1970. Plaintiff does not allege that Dr. Shahim and Nurse Petty "[knew] of and disregarded] an excessive risk to inmate health or safety," Framer, 511 U.S. at 827, 114 S.Ct. at 1979; see also Hathaway, 37 F.3d at 66 ("deliberate indifference requires undertaking for the very purpose of causing harm") (citations omitted), cert. denied, 513 U.S. 1154, 115 S.Ct. 1108 (1995). plaintiff's fail to allege any facts which suggest that Dr. Shahim or Nurse Petty were aware of facts from which an inference could be drawn that a risk of serious harm existed. They do not allege facts which suggest that they drew such an inference.
To the extent that plaintiff's raise a claim of deliberate indifference with respect to defendants Shahim's and Petty's response to Mr. Roberts' complaints, such a claim must be dismissed.
Denial of Any Medical Treatment in Response to Seven Conditions Before Alleged Altercation
The court notes that it is not entirely, pellucidly clear whether plaintiff's mean that Mr. Roberts was denied any medical attention at all, or if he was merely denied what plaintiff's consider to be an appropriate response to his complaints. The court acknowledges that it is certainly not necessary, as a logical or grammatical matter, to interpret the clause "he was denied appropriate medical attention," Second Amended Complt. ¶ 13, to mean that Roberts was denied any medical attention whatsoever. Indeed, the modifier "appropriate" rather unambiguously serves to indicate that he received some attention, the adequacy of which is disputed by plaintiff's. In their memorandum of law in opposition to defendants' partial motion to dismiss, plaintiff's argue that defendants "failed to appropriately render Devon Roberts medical care." Def. Br. at 2. Here, the use of the modifier "appropriately" might be interpreted to suggest that defendants failed to render any care, as would be appropriate under the circumstances. In this section of their memorandum of law, however, plaintiff's appear to be referring to defendants' actions during the altercation on March 24, 2000, and not to any action (or inaction) previous to that. Reading the complaint in a light most favorable to plaintiff's, the court will give them the benefit of the doubt. It is possible that plaintiff's intend to claim Mr. Roberts was "denied appropriate medical attention," Second Am. Complt. ¶ 13, with reference to the seven medical conditions in the sense that defendants Shahim and Petty did not address his complaints at all.
This possible claim — that is, the allegation that Shahim and Petty did not treat Mr. Roberts between March 10, 2000 (when he first complained to the relevant prison officials) and March 23, 2000 (when he was checked into the psychiatric satellite unit) — also fails. Even if a plaintiff receives some medical care, a claim may be stated if "the gravaman of his problem is not addressed. Sulton v. Wright, 2003 WL 21251652 (S.D.N.Y. May 29, 2003, as amended June 6, 2003) (citing Archer v. Dutcher. 733 F.2d 14, 16-17 (2d Cir. 1984)). Again, assuming arguendo that they satisfy the objective prong of the analysis, however, the court finds that plaintiff's have failed to satisfy the subjective prong with respect to this putative claim. As the court discussed supra, plaintiff's fail to allege that Shahim or Petty had any knowledge of Mr. Roberts' complaints about these conditions. "[T]he official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer 511 U.S. at 837, 114 S.Ct. 1970. plaintiff's do not allege that Shahim or Petty "[knew] of and disregarded] an excessive risk to inmate health or safety," Framer, 511 U.S. at 827, 114 S.Ct. at 1979. plaintiff's do not allege that Shahim or Petty (or any of the individual defendants) knew of the seven conditions which Mr. Roberts allegedly reported to the responsible prison officials. Insofar as plaintiff's predicate a claim of deliberate indifference on inaction on the part of Shahim and/or Petty with respect to his seven medical conditions, such a claim must be dismissed.
Deliberate Indifference With Reference to Conditions Surrounding the Alleged Altercation
In addition to alleging that defendants' alleged inaction constitutes an Eighth Amendment claim, or that their provision of the Atavin and Thorozine was a misguided response the their knowledge of a putatively serious medical condition, the complaint may be read to allege that the actions taken by Dr. Shahim and Nurse Petty constituted deliberate indifference with specific reference to Mr. Roberts' condition immediately leading up to and during the alleged physical altercation. plaintiff's allege that during the altercation, Shahim and Petty violated a duty to "provide appropriate medical care," Second Am. Complt., ¶ 16, when they gave him Atavin and Thorozine. Plaintiff does not, however, explicitly identify a condition to which Dr. Shahim and Nurse Petty were inappropriately responding when they administered the injections of Atavin and Thorozine. Rather, plaintiff's appear to merely express disagreement about the proper course of treatment at the time that defendants administered these medications. "It is well-established that mere disagreement over proper treatment does not create a constitutional claim." Flemming. 2003 WL 21756108, at *3. As long as treatment is adequate, the fact that plaintiff might prefer a different treatment does not give rise to a medical violation. Id., Plaintiffs fail to explain why this course of treatment was inadequate. Plaintiffs suggest that by administering these medications, Shahim and Petty, in concert with the defendants who allegedly assaulted Mr. Roberts, were responsible for Mr. Roberts death. Plaintiffs do not allege any facts, however, which explain why providing these medications in these doses and in these circumstances constitutes inadequate medical treatment or deliberate indifference. This claim of deliberate indifference must be dismissed.
C. Intentional Torts
Pursuant to 28 U.S.C. § 1367, plaintiffs bring a number of state law claims against defendants Shahim, Petty, Dominguez, and Hanson, alleging intentional torts of illegal seizure, assault and battery, intentional infliction of emotional distress, and conspiracy. Section 215(3) of the New York Civil Practice Laws and Rules establishes that intentional torts are subject to a one year statute of limitations. See Lucas v. Novogratz, 2002 WL 31844913, *6 (S.D.N.Y. Dec. 18, 2002) ("Although the statute by its terms applies only to certain listed torts, the New York courts have interpreted it to apply to all intentional torts") (citation omitted).
Plaintiff's state law claims accrued on March 24, 2000, the day of the alleged assault. Under C.P.L.R. § 210(a), "[w]here a person entitled to commence an action dies before the expiration of the time within which the action must be commenced and the cause of action survives, an action may be commenced by his representative within one year after his death." Mr. Roberts died on March 31, 2000. Accordingly, state law claims for intentional torts brought after March 31, 2001 are time-barred. Plaintiffs do not oppose this contention. The instant action was commenced on March 28, 2002, nearly one year after the applicable statute of limitations had expired. Thus, defendants' motion to dismiss the pendant state law intentional tort claims as time barred is hereby GRANTED.
D. Wrongful Death
Defendants assert that plaintiffs' wrongful death claim must be dismissed as time-barred. Plaintiffs do not oppose this motion. Under Section 5-4.1(1) of the Estate, Powers and Trust Law, a claim for wrongful death must be commenced within two years of the decedent's death. This action was filed on March 28, 2002, two days before the expiration of the statute of limitations. Defendants Shahim, Petty, Dominguez, and Hanson, however, were not named in the original complaint.
Pursuant to Section 1024 of the C.P.L.R., a plaintiff may commence an action with defendants identified as John Does. "To use the John Doe method of C.P.L.R. 1024 it must be shown that plaintiff made genuine efforts to ascertain the defendants' identities prior to the running of the Statute of Limitations." Tucker v. Larieo. 291 A.D.2d 261 (2d Dept 2002) (quoting Porter v. Kingsbrook OB/GYN Assoc., 209 A.D.2d 497, appeal dismissed 86 N.Y.2d 871). The statute of limitations is tolled for 120 days in order to effectuate service. See C.P.L.R. Section 306-b. Plaintiffs thus had until July 28, 2002 to effectuate service. It was not until December 17, 2002, however, that plaintiffs identified Shahim, Petty, Dominguez, and Hanson in the Second Amended Complaint.
Defendants claim that plaintiffs are unable to describe any genuine efforts that they made to ascertain the identities of the John Doe defendants prior to the running of the applicable statute of limitations. Plaintiffs do not oppose this assertion in any way. The motion to dismiss the wrongful death claim is hereby GRANTED.
IV. Motion to Extend Time in Which to Serve the Complaint to Defendant Evertts
Plaintiffs have moved the court for an order pursuant to Fed.R.Civ.P. Rule 4(m) and Rule 6(b), extending by 90 days the time within which to serve defendant Daniel Evertts with the Second Amended Complaint. For the reasons discussed below, plaintiffs' motion is DENIED.
Federal Rule of Civil Procedure 4(m) provides in relevant part:
[if] service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified period of time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Federal Rule of Civil Procedure Rule 12(b)(5) provides for dismissal of an action if service of process was not timely effected in accordance with Rule 4(m). Rule 4(m) allows for dismissal of an action if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint. However, if the plaintiff can show "good cause" for the failure to timely effect service, the court "shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).
The plaintiff bears the burden of proof in showing that it had good cause in not timely serving the defendant. See Fed.R.Civ.P. 4(m); AIG Managed Market Neutral Fund v. Askin Capital Management L.P.. 197 F.R.D. 104, 108 (S.D.N.Y. 2000); Mason Tenders District Council Pension Fund v. Messera. 1997 WL 221200, at *3 (S.D.N.Y. April 1, 1997). Good cause is measured against the plaintiff's reasonable efforts to effect service and the prejudice to the defendant from the delay. See, e.g., Motel 6 Sec. Litig. v. Hugh Thrasher. 1995 WL 431326, at *2 (S.D.N.Y. July 20, 1995) (citing cases). In particular, the court should look to whether 'the plaintiff was diligent in making reasonable efforts to effect service, including but not limited to whether plaintiff moved under [Rule] 6(b)" for an extension of time in which to serve the defendant. AIG Managed Market Neutral Fund, 197 F.R.D. at 108 (quoting Gordon v. Hunt 835 F.2d 452, 453 (2d Cir. 1987)). A delay in service resulting from mere inadvertence, neglect, or mistake of a litigant's attorney does not constitute good cause. Id. (citing Myers v. Secretary of the Dep't of the Treasury. 173 F.R.D. 44, 47 (E.D.N.Y. 1997) (citing cases); Delicata v. Bowen. 116 F.R.D. 564, 566 (S.D.N.Y. 1987)).
Plaintiffs clearly did not have good cause for their failure to serve defendant Evertts. Plaintiffs concede that their failure to serve defendant Evertts was "an oversight, resulting from multiple attorneys in two states, coordinating service upon multiple defendants." Pl's Br. at 2.
In the absence of good cause, the court may, in its discretion, extend the time to complete service. See Advisory Committee Notes to Fed.R.Civ.P. 4(m) (amended Rule 4(m) "authorizes the court to relieve a plaintiff of the consequences of an application of this subdivision even if there is no good cause shown"); AIG Managed Market Neutral Fund. 197 F.R.D. at 109. "Rule 4(m) permits a district court to enlarge the time for service even where there is no good cause shown." Rupert v. Metro-North Commuter R.R. Co., 1996 WL 447745, at *3 (S.D.N.Y. Aug. 7, 1996). See also Henderson v. United States. 517 US. 654, 658 n. 5, 116 S.Ct. 1638 (1996). The Advisory Committee Notes to Rule 4(m) provide guidance as to when the court ought to exercise its discretion, stating that "relief may be justified, for example, if the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service." See also Mason Tenders District Council Pension Fund v. Messera, 1997 WL 221200, at *4 (S.D.N.Y. April 1, 1997).
Plaintiffs contend that if the Second Amended Complaint is dismissed as to Evertts, the applicable statute of limitations arguably bars plaintiffs from refiling against him. Thus, although a dismissal of the complaint pursuant to Rule 4(m) is without prejudice, in the instant case such a dismissal could result in a de facto dismissal with prejudice. Courts have considered the fact that the statute of limitations has run on a plaintiff's claim as a factor favoring the plaintiff in a Rule 4(m) analysis. See Boley v. Klaymark. 123 F.3d 756, 759 (3d Cir. 1997) (citing cases); Rupert, 1996 WL 447745, at *2. "The rationale for this principle is that dismissal under these circumstances would extinguish potentially meritorious claims without there being an opportunity to have them heard on the merits." AIG Managed Market Neutral Fund, 197 F.R.D. at 110 (citing cases).
As the discussion supra indicates, plaintiffs do not oppose defendants' contention that the state law claims are barred by the applicable statute of limitations.
The expiration of the statute of limitations may, in some cases, militate in favor of granting plaintiffs' motion. However, such relief is not mandated in every case where the statute of limitations issue is raised by the plaintiff. See, e.g., Astarita v. Urgo Butts Co.. 1997 WL 317028, at *4-5 (S.D.N.Y. June 10, 1997). The language of the Advisory Committee Note does not "guarantee an extension for every case that may be time-barred if re-filed." Rupert, 1996 WL 447745, at *2 (internal citation and quotation marks omitted); see Petrucelli, 46 F.3d at 1306 ("[T]he running of the statute of limitations does not require the district court to extend time for service of process"). In this case, plaintiffs have made no indication or showing that they have made any attempt whatsoever to serve defendants Evertts. On May 20, 2003, defendants Petty, Shahim, Hanson, and Dominguez answered and moved to partially dismiss the Second Amended Complaint. These defendants noted in a footnote to their answer that Daniel Evertts had not yet been served with the complaint. In a footnote to their memorandum of law in support of their partial motion to dismiss, these defendants again noted that Daniel Evertts had not been served. "[W]here a party fails to take any affirmative step to serve its adversary, courts should refrain from granting that party more time to effect service." Point-Dujour v. United States Postal Service, 2003 WL 1745290, at *3 (S.D.N.Y. March 31, 2003) (citing cases). This is not a return to the "good cause" analysis, but rather a reasonable norm which may guide the court in its exercise of discretion in this context. Plaintiffs have made no effort to serve Evertts, even after receiving repeated notice from defendants. Plaintiffs' motion is DENIED.
V. Conclusion
For the reasons set forth above, defendants' motion is GRANTED and plaintiffs' motion is DENIED.