Lopez v. Annucci
Opinion
16‐54 Lopez v. Annucci
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 9th day of May, two thousand seventeen.
PRESENT: GUIDO CALABRESI, DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
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ORLANDO LOPEZ, Plaintiff‐Appellant,
v. 16‐54
ANTHONY J. ANNUCCI, COMMISSIONER, NEW YORK STATE DEPARTMENT OF CORRECTIONS AND COMMUNITY SUPERVISION, JOHN DOE, DIRECTOR OF MEDICAL, DOCS NEW YORK STATE, NEW YORK STATE OFFICE OF MENTAL HEALTH, WILLIAM GOODMAN, DOCTOR, ELMIRA CORRECTIONAL FACILITY, DONALD SAWYER, OFFICE OF MENTAL HEALTH NYS, Defendants‐Appellees.
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FOR PLAINTIFF‐APPELLANT: MATTHEW B. BYRNE, Gravel & Shea PC, Burlington, Vermont.
FOR DEFENDANTS‐APPELLEES: No appearance.
FOR AMICUS CURIAE: Kate H. Nepveu, Assistant Solicitor General, Andrea Oser, Deputy Solicitor General, Barbara D. Underwood, Solicitor General, for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York.
Appeal from the United States District Court for the Western District of New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is VACATED and the case is REMANDED for further proceedings consistent with this order.
Plaintiff‐appellant Orlando Lopez appeals from a judgment of the district court entered December 4, 2015. By decision and order filed December 3, 2015, the court dismissed sua sponte and with prejudice plaintiffʹs complaint as barred by the statute of limitations.1 We assume the partiesʹ familiarity with the underlying facts, procedural history, and issues on appeal.
In July 2010, plaintiff filed, pro se, the first version of his complaint in a prior and related case in the district court and named the New York State Office of
1 As authorized by statute, the court dismissed plaintiffʹs claims prior to service on defendants. 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring dismissal ʺat any timeʺ if action fails to state a claim); 28 U.S.C. § 1915A (requiring dismissal ʺas soon as practicableʺ if complaint fails to state a claim). Because defendants were never served in this case, they are not parties to this appeal. See Lewis v. New York, 547 F.2d 4, 5‐6 (2d Cir. 1976). We nonetheless have appellate jurisdiction over the appeal of the sua sponte dismissal. See McEachin v. McGuinnis, 357 F.3d 197, 200‐01 (2d Cir. 2004). We directed the New York State Attorney Generalʹs Office to file a brief as amicus curiae. No. 16‐54, ECF No. 90 (Apr. 4, 2017). That brief was submitted on April 18, 2017. No. 16‐54, ECF No. 95 (Apr. 18, 2017).
Mental Health and the New York State Department of Corrections as defendants. The complaint raised claims under 42 U.S.C. § 1983 and alleged that plaintiff received improper medical treatment while incarcerated at the Elmira Correctional Facility in Elmira, New York. Plaintiff asserted that defendants prescribed him anti‐psychotic medication in 2008 or 2009 that, in combination with their failure to monitor his health, caused him to fall into a coma on January 15, 2009, and to later develop diabetes.
In August 2010, plaintiff filed, pro se, an amended complaint against Elmira Correctional Facility, its superintendent, and Dr. William Goodman, and clarified that it was Dr. Goodman who prescribed him medication and failed to monitor his health. The district court (Larimer, J.) dismissed the Elmira Correctional Facility and its superintendent as defendants on the grounds of immunity and failure to state a claim, leaving Dr. Goodman as the sole defendant in the case. Plaintiff served Dr. Goodman in September 2010.
In June 2013, the district court (Siragusa, J.)2 dismissed plaintiffʹs claims without prejudice for failure to exhaust administrative remedies under 42 U.S.C. § 1997e(a) and entered judgment against plaintiff. Plaintiff then filed a claim with the Inmate Grievance Review Committee in July 2013. Plaintiff also filed two motions for reconsideration with the district court, which denied the first motion in September 2013
2 The case was reassigned to Judge Charles J. Siragusa in August 2011.
and the second in November 2013. In January 2014, the Central Office Review Committee denied the administrative claim as untimely.
In August 2014, plaintiff filed, pro se, a second amended complaint that (1) raised essentially the same claims, (2) asserted new claims alleging that facility employees were not properly trained or equipped to monitor inmate health and provide follow‐up care after changing inmate medication, and (3) included information on the denial of his administrative claim. Because the case had already been closed, the district court directed the Clerk of Court to re‐file the second amended complaint as an original complaint in a new action.
The instant action was initiated in September 2014 with the re‐filing of the complaint. In its April 2015 decision and order granting plaintiff leave to proceed in forma pauperis, the district court determined that the complaint ʺraise[d] clear statute of limitations issuesʺ and directed plaintiff to submit a written response explaining why the action should not be dismissed as untimely. App. at 21‐22. Plaintiff submitted a letter asserting that (1) he had, in fact, submitted his claims before the expiration of the limitations period, (2) the limitations issue had not been raised before, and (3) he had exhausted his administrative remedies as instructed by the court. In the letter, plaintiff also asserted other allegations of retaliatory actions and complained of his lack of access to a law library.
By decision and order filed December 3, 2015, the district court dismissed plaintiffʹs claims with prejudice as time‐barred after concluding that (1) he had not alleged a justification for his failure to exhaust administrative remedies before the end of the limitations period, and (2) there was no alternative basis for equitable tolling because his claims would be untimely even if the limitations period were tolled for the one‐month period of his hospitalization.
On appeal, plaintiff argues, inter alia and through counsel, that the court improperly dismissed his claims as untimely without considering whether, as a pro se litigant, he alleged ongoing misconduct under the continuing violation doctrine. We agree.
ʺWe review de novo a district courtʹs dismissal of complaints under 28 U.S.C. §§ 1915A and 1915(e)(2)(B),ʺ McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), the statutory provisions governing the dismissal of actions initiated by inmate‐ plaintiffs. ʺWe accept as true all facts described in the complaint but need not accept ʹconclusory allegations or legal conclusions couched as factual [] allegations.ʹʺ Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (per curiam) (alteration in original) (quoting Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)). Because the plaintiff in this case filed a pro se complaint, we also ʺmust liberally construe his pleadings, and must interpret his complaint to raise the strongest arguments it suggests.ʺ Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).
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