UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SERGIO BARNES, Plaintiff, -against- 20-CV-5885 (LLS) DR. UZU; DR. AHMAD AKHAN; ROBERT ORDERTO AMEND BENTIVEGNA; A. MCCARTHY; LESLIE CAREY, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, currently incarcerated in Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical condition.By order datedSeptember 22, 2020,the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or anofficer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceedIFP.See 28 U.S.C. § 1915(b)(1). (2d Cir. 2007).The court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude”in pro se cases,id. at 475 (citation omitted), has its limits – to state a claim,pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S.at 555.After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible –not merely possible –that the pleader is entitled to relief.Id. BACKGROUND The following allegations are taken from the complaint. On September 10, 2016, Plaintiff sustained an injury to his right Achilles tendon while playing football in Green Haven’s Fay field. After two inmates assisted him off the field, he was transported tothe facility’s clinic by wheelchair. There, Plaintiff was examined and then admitted to the infirmary “until further examination could be conducted.” (ECF No. 2, at 4.) Two days later, Dr. Uzu examined Plaintiff’s Achilles tendon — which at the time was three times its normal size. Plaintiff informed Dr. Uzu that he had “no stability when weight was shifted to the ball of [his] right foot” and he suggested that an MRI be done, but Dr. Uzu only requested an x-ray. (/d. at 5.) Plaintiff was then discharged from the infirmary, and although he requested crutches, Dr. Uzu stated it was unnecessary. For the next few days, Plaintiff struggled to walk around the facility without crutches; his daily travels included going up and down two flights of stairs several times a day. On September 18, 2016, Plaintiff received an x-ray and the results were negative. But he continued to experience pain in his Achilles tendon and again requested an MRI and “further examination to determine the cause of instability and pain in [his] leg.” Ud.) On September 27, 2016, he informed a nurse that the pain was “unbearable,” there was “persistent weakness” in his right leg, and that he was “unable to bear weight on the ball of [his] foot.” (/d.) He returned to sick call on October 6, 2016, and again complained about the continuing pain. At that appointment, the medical staff finally agreed to schedule an MRI. On November 14, 2016, an MRI was conducted that showed a tear in Plaintiff’s Achilles that had nearly completely ruptured the tendon. Plaintiff brings this action asserting that Defendants were deliberately indifferent by delaying treatment for his ruptured Achilles tendon. He seeks monetary damages. DISCUSSION A. Untimely Claims Plaintiff’s claim that Defendants delayed treatment for his ruptured Achilles tendon appears to be untimely. The statute of limitations for claims under 42 U.S.C. § 1983 is found in the “general or residual [state] statute [of limitations] for personal injury actions,” Owens v.
Okure, 488 U.S. 235, 249-50 (1989). In New York, that period is three years. See Pearl v. City of Long Beach, 296 F.3d 76, 79-80 (2d Cir. 2002). Claims under § 1983 generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Plaintiff asserts that he injured his Achilles tendon on September 10, 2016, and that the medical staff at Green Haven delayed scheduling an MRI for almost two months — until October 6, 2016 — although he was in constant pain. He received an MRI on November 14, 2016. But Plaintiff delivered this complaint to prison officials for mailing to this Court on June 12, 2020, almost three years and seven months after the latest alleged event occurred. Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007).
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK SERGIO BARNES, Plaintiff, -against- 20-CV-5885 (LLS) DR. UZU; DR. AHMAD AKHAN; ROBERT ORDERTO AMEND BENTIVEGNA; A. MCCARTHY; LESLIE CAREY, Defendants. LOUIS L. STANTON, United States District Judge: Plaintiff, currently incarcerated in Green Haven Correctional Facility, brings this pro se action under 42 U.S.C. § 1983, alleging that Defendants were deliberately indifferent to his serious medical condition.By order datedSeptember 22, 2020,the Court granted Plaintiff’s request to proceed without prepayment of fees, that is, in forma pauperis (IFP).1 For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within sixty days of the date of this order. STANDARD OF REVIEW The Prison Litigation Reform Act requires that federal courts screen complaints brought by prisoners who seek relief against a governmental entity or anofficer or employee of a governmental entity. See 28 U.S.C. § 1915A(a). The court must dismiss a prisoner’s IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b); see Abbas v. Dixon, 480 F.3d 636, 639
1 Prisoners are not exempt from paying the full filing fee even when they have been granted permission to proceedIFP.See 28 U.S.C. § 1915(b)(1). (2d Cir. 2007).The court must also dismiss a complaint if the court lacks subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3). While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470
F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude”in pro se cases,id. at 475 (citation omitted), has its limits – to state a claim,pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. The Supreme Court has held that under Rule 8, a complaint must include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570(2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing
the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S.at 555.After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible –not merely possible –that the pleader is entitled to relief.Id. BACKGROUND The following allegations are taken from the complaint. On September 10, 2016, Plaintiff sustained an injury to his right Achilles tendon while playing football in Green Haven’s Fay field. After two inmates assisted him off the field, he was transported tothe facility’s clinic by wheelchair. There, Plaintiff was examined and then admitted to the infirmary “until further examination could be conducted.” (ECF No. 2, at 4.) Two days later, Dr. Uzu examined Plaintiff’s Achilles tendon — which at the time was three times its normal size. Plaintiff informed Dr. Uzu that he had “no stability when weight was shifted to the ball of [his] right foot” and he suggested that an MRI be done, but Dr. Uzu only requested an x-ray. (/d. at 5.) Plaintiff was then discharged from the infirmary, and although he requested crutches, Dr. Uzu stated it was unnecessary. For the next few days, Plaintiff struggled to walk around the facility without crutches; his daily travels included going up and down two flights of stairs several times a day. On September 18, 2016, Plaintiff received an x-ray and the results were negative. But he continued to experience pain in his Achilles tendon and again requested an MRI and “further examination to determine the cause of instability and pain in [his] leg.” Ud.) On September 27, 2016, he informed a nurse that the pain was “unbearable,” there was “persistent weakness” in his right leg, and that he was “unable to bear weight on the ball of [his] foot.” (/d.) He returned to sick call on October 6, 2016, and again complained about the continuing pain. At that appointment, the medical staff finally agreed to schedule an MRI. On November 14, 2016, an MRI was conducted that showed a tear in Plaintiff’s Achilles that had nearly completely ruptured the tendon. Plaintiff brings this action asserting that Defendants were deliberately indifferent by delaying treatment for his ruptured Achilles tendon. He seeks monetary damages. DISCUSSION A. Untimely Claims Plaintiff’s claim that Defendants delayed treatment for his ruptured Achilles tendon appears to be untimely. The statute of limitations for claims under 42 U.S.C. § 1983 is found in the “general or residual [state] statute [of limitations] for personal injury actions,” Owens v.
Okure, 488 U.S. 235, 249-50 (1989). In New York, that period is three years. See Pearl v. City of Long Beach, 296 F.3d 76, 79-80 (2d Cir. 2002). Claims under § 1983 generally accrue when a plaintiff knows or has reason to know of the injury that is the basis of the claim. Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013). Plaintiff asserts that he injured his Achilles tendon on September 10, 2016, and that the medical staff at Green Haven delayed scheduling an MRI for almost two months — until October 6, 2016 — although he was in constant pain. He received an MRI on November 14, 2016. But Plaintiff delivered this complaint to prison officials for mailing to this Court on June 12, 2020, almost three years and seven months after the latest alleged event occurred. Because the failure to file an action within the limitations period is an affirmative defense, a plaintiff is generally not required to plead that the case is timely filed. See Abbas v. Dixon, 480 F.3d 636, 640 (2d Cir. 2007). Dismissal is appropriate, however, where the existence of an affirmative defense, such as the statute of limitations, is plain from the face of the pleading. See Walters vy. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011); see also Pino y. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (affirming sua sponte dismissal under 28 U.S.C. § 1915(d) on statute of limitations grounds). A district court should grant notice and opportunity to be heard, however, before dismissing a complaint sua sponte on statute of limitations grounds. Abbas, 480 F.3d at 640. The Court therefore grants Plaintiff leave to file an amended complaint that pleads any facts showing that equitable tolling applies. “Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005). New York law also establishes by statute circumstances in which the limitations period may be tolled. See, e.g.,
N.Y. C.P .L.R. §204(a) (where commencement of an action has been stayed by court order), id. at §204 (where a dispute has been submitted to arbitration but is ultimately determined to be non-arbitrable), id.at §207(3) (defendant is outside New York at the time the claim accrues), id. at §208 (plaintiff is disabled by infancy or insanity). B. Delayed Medical Treatment
Plaintiff’s assertion of delayed medical treatment for his Achilles tendon amounts to a claim of deliberate indifference under the Eighth Amendment to the Constitution. To state a §1983 claim forinadequate medical care under the Eighth Amendment, a plaintiff must allege facts showing that correction officials were deliberately indifferent to the plaintiff’s serious medical condition. See Estelle v. Gamble, 429 U.S. 97, 104-05 (1976. Deliberate indifference claims include an objective component and a subjective component. Hill v. Curcione,657 F.3d 116, 122 (2d Cir. 2011). Prisoners alleging deliberate indifference to their medical needs must satisfy both components to state a claim under the Eighth Amendment. The objective component requires that a prisoner “show that the conditions, either alone or in combination, pose[d] an unreasonable risk of serious damage to his health.” Darnell v.
Pineiro, 849 F.3d 17, 30 (2d Cir. 2017) (internal quotation marks and citation omitted). The deliberate indifference standard “contemplates a condition of urgency such as one that may produce death, degeneration, or extreme pain.” Charles v. Orange Cty., 925 F.3d 73, 86 (2d Cir. 2019); see Harrison v. Barkley, 219 F.3d 132, 136 (2d Cir. 2000) (holding that the medical need must be a “sufficiently serious” condition that “could result in further significant injury or the unnecessary and wanton infliction of pain”) (internal quotation marks and citation omitted)). The subjective component requires a prisoner to show that the defendant officials acted with a “sufficiently culpable state of mind” in deprivinghimof adequate medical treatment. Nielsen v. Rabin, 746 F.3d 58, 63 (2d Cir. 2014) (citing Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006)).That is, the prisoner must state facts showing that the medical professional possessed “a state of mind that is the equivalent of criminal recklessness.” Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996); see Farmer v. Brennan, 511 U.S. 825, 837 (1994) (holding that the subjective component requires that the plaintiff show that a medical professional “was aware of facts from which the inference could be drawn that a substantial risk
of serious harm exist[ed]” and that the officer drew the inference). Where a medical professional inadvertentlyor negligently fails to provide adequate care, a prisoner cannot state a constitutional violation under the Eighth Amendment.See Estelle, 429 U.S. at 106. Thus, a “mere disagreement over the proper treatment” is not actionable. See Chance v. Armstrong, 143 F.3d 698, 703 (2dCir. 1998); see, e.g.,Hill, 657 F.3d at 123 (holding that medical officer who prescribed Motrin rather than stronger pain medication to treat a broken wrist did not have the “culpable state of mind” to satisfy the subjective component of the deliberate indifference standard). Here, Plaintiff alleges facts sufficient to suggest that his injured Achilles tendonis a
serious medical condition.Further, his assertion that the medical staff denied his repeated request for an MRI for two months,although he was in constant pain, may suggest more than negligence. But Plaintiff does not allege facts suggesting that each individual named as a defendant was deliberately indifferent.In fact, the only defendant Plaintiff mentions by name in his statement of facts is Dr. Uzu, whom Plaintiff claims denied his request for crutches and an MRI, but instead only scheduledan x-ray. Plaintiff does not allege any facts showing that Akhan, Bentivegna, McCarthy, or Carey knew or should have known of his serious medical need or that each of them was deliberately indifferent to that need. Should Plaintiff file an amended complaint, he must allege facts suggesting that each individual named as a defendant was aware or should have been aware of his medical need and failed to provide him with adequate medical care. LEAVE TO AMEND Plaintiff is granted leave to amend his complaint to show that his claims are timely or that
the three-year statute of limitations should be equitably tolled. He must also provide facts suggesting that each defendant was deliberately indifferent to his serious medical condition.In the statement of claim, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant named in the amended complaint. Plaintiff is also directed to provide the addresses for any named defendants. To the greatest extent possible, Plaintiff’s amended complaint must: a) give the names and titles of all relevant persons; b) describe all relevant events, stating the facts that support Plaintiff’s case including what each defendant did or failed to do; c) give the dates and times of each relevant event or, if not known, the approximate date and time of each relevant event; d) give the location where each relevant event occurred; e) describe how each defendant’s acts or omissions violated Plaintiff’s rights and describe the injuries Plaintiff suffered; and f) state what relief Plaintiff seeks from the Court, such as money damages, injunctive relief, or declaratory relief. Essentially, the body of Plaintiff’s amended complaint must tell the Court: who violated his federally protected rights; what facts show that his federally protected rights were violated; when such violationoccurred; where such violationoccurred; and whyPlaintiff is entitled to relief. Because Plaintiff’s amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wishes to maintain must be included in the amended complaint. CONCLUSION The Clerk of Court is directed to mail a copy of this order to Plaintiff and note service on the docket. Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court’s Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 20-CV-5885 (LLS). An Amended Civil Rights Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted. SO ORDERED. Dated: October 14, 2020 New York, New York Leis Le Start _ Louis L. Stanton US.D.J.
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
CV. Write the full name of each plaintiff. (Include case number if one has been assigned) AMENDED against: COMPLAINT (Prisoner) Do you want a jury trial? 0mNd—MN L1Yes LINo
Write the full name of each defendant. If you cannot fit the names of all of the defendants in the space provided, please write “see attached” in the space above and attach an additional sheet of paper with the full list of names. The names listed above must be identical to those contained in Section IV.
NOTICE The public can access electronic court files. For privacy and security reasons, papers filed with the court should therefore not contain: an individual’s full social security number or full birth date; the full name of a person known to be a minor; or a complete financial account number. A filing may include only: the last four digits of a social security number; the year of an individual’s birth; a minor’s initials; and the last four digits of a financial account number. See Federal Rule of Civil Procedure 5.2.
Rev. 5/20/16
I. LEGAL BASIS FOR CLAIM State below the federal legal basis for your claim, if known. This form is designed primarily for prisoners challenging the constitutionality of their conditions of confinement; those claims are often brought under 42 U.S.C. § 1983 (against state, county, or municipal defendants) or ina “Bivens” action (against federal defendants). L] Violation of my federal constitutional rights L] Other: Il. PLAINTIFF INFORMATION Each plaintiff must provide the following information. Attach additional pages if necessary.
First Name Middle Initial Last Name
State any other names (or different forms of your name) you have ever used, including any name you have used in previously filing a lawsuit.
Prisoner ID # (if you have previously been in another agency’s custody, please specify each agency and the ID number (such as your DIN or NYSID) under which you were held)
Current Place of Detention
Institutional Address
County, City State Zip Code II. PRISONER STATUS Indicate below whether you are a prisoner or other confined person: L] Pretrial detainee L] Civilly committed detainee L] Immigration detainee L] Convicted and sentenced prisoner L] Other:
IV. DEFENDANT INFORMATION To the best of your ability, provide the following information for each defendant. If the correct information is not provided, it could delay or prevent service of the complaint on the defendant. Make sure that the defendants listed below are identical to those listed in the caption. Attach additional pages as necessary. Defendant 1: First Name Last Name Shield #
Current Job Title (or other identifying information)
Current Work Address
County, City State Zip Code Defendant 2: First Name Last Name Shield #
County, City State Zip Code Defendant 3: First Name Last Name Shield #
County, City State Zip Code Defendant 4: First Name Last Name Shield #
County, City State Zip Code V. STATEMENT OF CLAIM Place(s) of occurrence:
Date(s) of occurrence: FACTS: State here briefly the FACTS that support your case. Describe what happened, how you were harmed, and how each defendant was personally involved in the alleged wrongful actions. Attach additional pages as necessary. INJURIES: If you were injured as a result of these actions, describe your injuries and what medical treatment, if any, you required and received.
VI. RELIEF State briefly what money damages or other relief you want the court to order. VII. PLAINTIFF’S CERTIFICATION AND WARNINGS By signing below, I certify to the best of my knowledge, information, and belief that: (1) the complaint is not being presented for an improper purpose (such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation); (2) the claims are supported by existing law or by a nonfrivolous argument to change existing law; (3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and (4) the complaint otherwise complies with the requirements of Federal Rule of Civil Procedure 11. I understand that if I file three or more cases while I am a prisoner that are dismissed as frivolous, malicious, or for failure to state a claim, I may be denied in forma pauperis status in future cases. I also understand that prisoners must exhaust administrative procedures before filing an action in federal court about prison conditions, 42 U.S.C. § 1997e(a), and that my case may be dismissed if I have not exhausted administrative remedies as required. I agree to provide the Clerk's Office with any changes to my address. I understand that my failure to keep a current address on file with the Clerk's Office may result in the dismissal of my case. Each Plaintiff must sign and date the complaint. Attach additional pages if necessary. If seeking to proceed without prepayment of fees, each plaintiff must also submit an IFP application.
Dated Plaintiff’s Signature
Prison Address
County, City State Zip Code
Date on which I am delivering this complaint to prison authorities for mailing: