Maurice Anthony v. Kevin Rosenberg, et al.

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

MAURICE ANTHONY,

Plaintiff, V. No. 9:22-CV-378 KEVIN ROSENBERG, et al., (AJB/PJE) Defendants.

“/APPEARANCES: OF COUNSEL: Maurice Anthony 14-A-2070 Wende Correctional Facility P.O. Box 1187 Alden, New York 14004 Plaintiff pro se

NYS Office of the Attorney General OLIVIA R. COX, ESQ. The Capitol KONSTANDINOS D. LERIS, ESQ. Albany, New York 12224 Assistant Attorneys Generals Attorneys for defendants

PAUL J. EVANGELISTA

U.S. MAGISTRATE JUDGE

REPORT-RECOMMENDATION AND ORDER’ Plaintiff pro se Maurice Anthony (‘plaintiff’) who is, at

all relevant times, an inmate in the custody of the New York

State Department of Corrections and Community

Supervision (“DOCCS’”), brings this action pursuant to 42

U.S.C. § 1983 for alleged violations of his civil rights.

Plaintiff asserts that defendants Kevin Rosenberg

(“Rosenberg”), John Doe 1, John Doe 2, Jane Doe 2, Jane

Doe 9, Benjamin Oakes (“Oakes”), Michael Sheahan

(“Sheahan”), and Doe Mental Health Counselor were

. deliberately indifferent to his medical needs in violation of

his Eighth Amendment rights. See Dkt. No. 85. Plaintiff

' This matter was referred to the undersigned for Report- Recommendation and Order pursuant to 28 U.S.C. § 636(b) and N.D.N.Y. L.R. 72.3(c).

also asserts that Oakes, Sheahan, Amy Ferguson

(“Ferguson”), and Matthew Thoms (“Thoms”) violated his

rights under Title Il of the Americans With Disabilities Act

(‘ADA”). See id.2 Presently before the Court is Rosenberg,

Oakes, Sheahan, Ferguson, and Thoms’ (collectively

“defendants”) motion for summary judgment and plaintiff's

cross motion for summary judgment, both pursuant to

Federal Rule of Civil Procedure (“Fed. R. Civ. P.”) 56. See

Dkt. Nos. 157-18; 161. For the following reasons, it is

recommended that defendants’ motion for summary

judgment be granted in its entirety and plaintiff's motion for

summary judgment be denied as moot.

? Plaintiff's amended complaint also sought to bring a claim alleging First Amendment retaliation against defendants and raised claims against several other individuals. See Dkt. No. 85. On initial review, the Court sua sponte dismissed these claims pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). See Dkt. No. 102.

. Factual Background?

In support of their motion, defendants filed a Statement

of Material Facts. See Dkt. No. 158-7. As will be discussed

below, plaintiff failed to properly respond to defendants’

Statement of Material Facts. See Dkt. Nos. 164-65.

A. N.D.N.Y. Local Rule 56.1

N.D.N.Y. Local Rule 56.1(b) requires that a party

Opposing summary judgment file a response to the

movant's Statement of Material Facts, “admitting and/or

denying each of the movant's assertions in a short and

concise statement, in matching numbered paragraphs.”

For the purposes of this Report-Recommendation & Order, the recitation of the facts is limited to whether plaintiff's Eighth Amendment and ADA claims are timely, and this lawsuit was filed within the statute of limitations. As will be discussed herein, the undersigned concludes that plaintiff's lawsuit is untimely because he commended this action after the relevant statute of limitations had expired. See infra at 21-27.

“The Court may deem admitted any properly supported

facts set forth in the Statement of Material Facts that the

opposing party does not specifically controvert.” □□□□

(emphasis omitted).

Here, plaintiff filed a response and supplemental

response to defendants’ motion for summary judgment.

See generally Dkt. Nos. 164-65. However, plaintiff's

submissions are not properly responsive to defendants’

Statement of Material Facts because they do not admit or

deny defendants’ “assertions in a short and concise

statement, in matching numbered paragraphs.” N.D.N.Y.

L.R. 56.1(b); see also Dkt. Nos. 164-65. Instead, plaintiff's

responses reiterate the facts from his amended complaint

and dispute the factual contentions contained in

defendants’ declarations. See Dkt. Nos. 164-65.

Additionally, other than in two instances, see Dkt. No. 164

at 21; Dkt. No. 165 at 4-5;* plaintiff does not cite to the

record for the facts he sets forth, in violation of Local Rule

56.1(a). See generally Dkt. Nos. 164-65; see also N.D.N.Y.

w/L.R. 56.1(a) (“Each fact listed shall set forth a specific

citation to the record where the fact is established.).

The Court is not required to “perform an independent

review of the record to find proof of a factual dispute.”

Prestopnik v. Whelan, 253 F. Supp. 2d 369, 371 (N.D.NLY.

2003) (citing Amnesty Am. v. Town of W. Hartford, 288 F.3d

467, 470-71 (2d Cir. 2002)). Although the Local Rules

provide that the undersigned shall deem admitted any facts

that the nonmoving party fails to “specifically controvert,”

and pro se plaintiffs are expected to abide by the Local

4 Citations to the Amended Complaint and the parties’ briefs refer to the pagination generated by CM/ECF, located at the header of each page.

Rules, pro se plaintiffs are also afforded special solicitude

in this District and Circuit. See N.D.N.Y. L.R. 56.1(b); see

also Treistman v. Fed. Bureau of Prisons, 470 F.3d 471, 477

Cir. 2006) (per curiam). Accordingly, in deference to

plaintiff's pro se status, the undersigned will independently

review the record when evaluating defendants’ motion for

summary judgment, and “treat [plaintiff's] opposition as a

_|response to” defendants’ Statement of Material Facts.

Robinson v. Mirza, No. 9:21-CV-1322 (DNH/CFH), 2024 WL

4464280, at *7 (N.D.N.Y. July 30, 2024), report and

recommendation adopted sub nom. Robinson v. Mizra, No.

9:21-CV-1322, 2024 WL 4249222 (N.D.N.Y. Sept. 20, 2024)

(citing Johnson v. Lew, No. 1:13-CV-1072 (GTS/CFH),

2017 WL 3822047, at *2 (N.D.N.Y. Aug. 30, 2017) (“Out of

special solicitude to [the pllaintiff as a pro se civil rights

litigant . . . the Court will treat his opposition as a response

to [the djefendant’s []JStatement ....” )); see also Perry v.

Ogdensburg Corr. Fac., No. 9:10-CV-1033 (LEK/TWD),

2016 WL 3004658, at *1 (N.D.N.Y. May 24, 2016)

(“[A]lthough [p]laintiff failed to respond to the statement of

material facts filed by [djefendants as required under Local

Rule[s], the Court would invoke its discretion to review the

entire record when evaluating the parties’ respective

[m]otions for summary judgment.”).°

B. Undisputed Facts In January 2017, plaintiff was housed at the Southport

Correctional Facility (“Southport CF”). See Dkt. No. 85 at

55. On January 13, 2017, plaintiff was transported from the Southport CF to the Upstate Center for Vision Care in

° The Court has provided plaintiff with copies of all unpublished cases’ cited within this Report- Recommendation and Order.

Syracuse, New York, “due to complaints of pain in his left

eye.” Dkt. No. 158-7 at 4. That day, plaintiff was examined

and treated by Rosenberg. See id. During the examination

plaintiff was diagnosed with a detached retina in his left eye.

See id. at 5. On January 17, 2017, and January 24, 2017,

plaintiff met with Oakes in the Southport CF infirmary. See

Dkt. No. 158-7 at 5-6. On February 3, 2017, Rosenberg

performed surgery on plaintiff to repair his left detached

retina. See id. at 6

C. Plaintiff's Amended Complaint

On January 13, 2017, Rosenberg, John Doe 1, and

John Doe 2 examined plaintiff “at the Harrison Optometrist”

in Syracuse, New York. Dkt. No. 85 at 2. The “Harrison

Optometrist” is a medical agency or facility contracted to

provide services to inmates housed at the Southport CF.

See id. at 6. Plaintiff alleges that during the examination,

Rosenberg, John Doe 1, and John Doe 2 “used a flat head

tongue suppressor type object to push between the top of

[his] left eyeball and the bone of [his] left eyebrow and

applied pressure in between which caused [him] pain.” /d.

The force applied to plaintiff's left eye caused his retina “to

rupture.” /d. Plaintiff was diagnosed with a detached retina

and was recommended for surgery within one to two weeks.

See Dkt. No. 2 at 43.

Later that day, on the way back to the Southport CF

from his medical appointment, plaintiff informed Jane Doe

9 that Rosenberg injured his left eye. Dkt. No. 85 at 4. Jane

Doe 9 ignored plaintiff's complaints of pain and “told [him]

to sign up for sick call.” /d. Upon returning to the Southport

CF, plaintiff was sent back to his cell, “signed up for sick

call[,] and [wrote] a grievance concerning the matter of Dr.

Rosenberg.” /d. 10

On January 17, 2017, plaintiff was escorted to the

facility infirmary in preparation for eye surgery. See DKt.

No. 85 at 4. Plaintiff informed Oakes how he was injured

jduring his January 13, 2017, medical appointment with

Rosenberg, raised concerns about having Rosenberg

perform his eye surgery, and requested that another doctor

perform the surgery. See id. at 4-5. Oakes ignored plaintiff

and told him that he “[did] not care about what took place

[and that he was] only down in the infirmary to take blood

work and an E.K.G. to prep[are] [him] for surgery.” /d. at 5.

Oakes then yelled at plaintiff that “if he [did not] take the

blood work or E.K.G. to get out of his face.” /d. Plaintiff

became argumentative, “was kicked out of [the] medical

infirmary and escorted back to his cell.” /d.

From January 18, 2017, to January 26, 2017, Jane Doe

2 attempted to convince plaintiff to go through with his eye 11

surgery. See Dkt. No. 85 at 5. Plaintiff advised Jane Doe

2 that he was not refusing to have eye surgery, but that he

did not want Rosenberg to perform the surgery and he

fequested to be referred to another medical agency. See

Dkt. No. 85 at 5-6.

Between January 19, 2017, and January 25, 2017,

plaintiff sooke with Sheahan about what occurred during his

appointment with Rosenberg, how Rosenberg injured his

left eye, scheduling his eye surgery, and his request to be

referred to another medical agency because he did not feel

comfortable with Rosenberg performing the surgery. See

Dkt. No. 85 at 6. Sheahan stated that he was aware of

plaintiff's grievance and his left eye condition, but he could

not retain another medical agency to perform plaintiff's eye

surgery. See id. Sheahan told plaintiff that he should go

through with the surgery. See id. Plaintiff informed 12

Sheahan that he wanted to press charges against

Rosenberg, but Sheahan “laughed and walked off.” /d.

On January 26, 2017, plaintiff again voiced his

~jconcerns to Jane Doe 2 and Oakes about having

Rosenberg perform his eye surgery. See Dkt. No. 85 at 6-

7. Oakes told plaintiff that he could either get his blood work

and E.K.G. completed or go back to his cell. See id. at 7.

In March 2017, Doe Mental Health Counselor began to

treat plaintiff. See Dkt. No. 85 at 7. Doe Mental Health

Counselor told plaintiff that they could not talk about the

incident with Rosenberg because it was a medical issue

and not a mental health issue. See Dkt. No. 85 at 7-8. Doe

Mental Health Counselor threatened to end their sessions

if plaintiff continued to discuss Rosenberg and his vision

problems. See id. In March and April 2017, plaintiff

suffered from “paranoia, fear, ... emotional distress, [] panic

attacks, hopelessness, and helplessness.” /d. at 8

In May 2017, plaintiff reported to Oakes that he

SUffered from severe left eye pain, neck pain, and “extreme”

headaches since he underwent eye surgery. Dkt. No. 85 at

8-9. Oakes ignored him and “did not care.” /d. at 9.

In June 2017, plaintiff experienced vision loss. See

Dkt. No. 85 at 9. In July 2017, plaintiff requested a

reasonable accommodation because he could not read,

write, or use small objects. See Dkt. No. 85 at 9-10. On

July 14, 2017, Oakes denied plaintiff a reasonable

accommodation. See id.; see also Dkt. No. 2 at 37. On

August 9, 2017, Sheahan’s designee affirmed Oakes’

decision to deny plaintiff a reasonable accommodation.

See Dkt. No. 2 at 38. Ferguson and Thoms also denied

plaintiff a reasonable accommodation after he was moved 14

to the Mid-State CF. See id. at 10-11; see also Dkt. No. 2

at 41 (denying plaintiff's request for a reasonable

accommodation on August 9, 2017). Between 2017 and 2020, plaintiff sought, but could not

obtain, legal representation. See Dkt. No. 85 at 12, 14-15,

21-30. Plaintiff also alleges that he was denied access to

the facility law library because he was diagnosed legally

blind and could not read or write. See id. at 12-13.

D. Plaintiff’s Deposition Testimony

Plaintiff testified that in February 2022, he did not

handwrite his complaint. See Dkt. No. 158-1 at 55-56; 123-

24. The document was written by another inmate at the

Southport CF. See id. Plaintiff reviewed the document

using his magnifying glass, signed the document with a

visually impaired marker, and the document is “[t]rue and

accurate to the best of his recollection.” /d. at 56. Plaintiff 15

handwrote and signed his amended complaint. See id. at

57, 125.

Plaintiff passed vision tests with corrective lenses after

underwent left eye corrective surgery. Dkt. No. 158-1 at

91-92. Plaintiff did not recall his level of vision following left

eye surgery. See id. at 92. In October 2016, plaintiff he

was diagnosed as legally blind. See id. at 98. In May 2017,

plaintiff complained to Oakes that his glasses were not

working anymore. See id. at 94-95. In 2018, plaintiff

received glasses, but they did not help correct his vision.

See id. at 114-115.

Plaintiff handwrote his January 13, 2017, grievance

against Rosenberg at the Southport CF and his February 8,

2017, grievance filed at the Mid-State Correctional Facility

(“Mid-State CF”). See Dkt. No. 158-1 at 108-110.

Plaintiff testified that from 2017 to 2022, his mental

health and vision issues made it difficult for him to “see” and

do his normal activities. Dkt. No. 158-1 at 113. In 2018,

plaintiff received a pair of glasses, but he did not begin

working on filing claims that form the basis of this lawsuit.

See Dkt. No. 158-1 at 116. In 2019, plaintiff began working

on his legal claims after he exhausted the grievance

_|Process and contacted the Legal Aid Society and other law

firms about taking his case. See id. at 116-117. The

Prisoners Legal Services did not take plaintiff's case

because he had other incarcerated individuals helping him.

See id. at 117.

Plaintiff testified that (1) in 2019, he received

reasonable accommodations; (2) in January 2020, he

obtained access to a computer and “had everything to start

studying law”; (3) in March 2020, he had a “resource room,” 17

could adjust colors to see better, and “started catching up

on all [his] legal work and doing the things [he] needed to

get [his] case started”; and (4) in August 2020, he felt “dialed

jin” and filed a claim with New York State that was denied as

untimely. Dkt. No. 158-1 at 118-119. Plaintiff stated that

between January 2020 and August 2020 he learned how to

use his accommodations and to read and write. See id. at

119-120. Between August 2020 and February 2022,

plaintiff tried to obtain legal counsel, received advice from

another inmate who drafted his complaint, and “was still

going through a lot of mental health issues.” /d. at 120-121.

In October 2021, plaintiff first learned that he could file a

federal lawsuit. See id. at 121-122. Plaintiff testified that it

took him until February 2022 to file he complaint in this

lawsuit because Mid-State did not supply him “with any

accommodations to where [he] could have done [his] work.” 18

ld. at 122. Plaintiff testified that the Upstate Correctional

Facility took away his accommodations, but he was still able

to write the amended complaint himself. See id. at 125.

E. Defendants’ Facts

In February 2017, plaintiff was diagnosed with

glaucoma and blindness in his right eye. See Dkt. No. 158-

3 at 79. On May 1, 2017, plaintiff underwent right eye

_|Surgery to treat his glaucoma. See id. at 82. On May 13,

2017, plaintiff's right eye was noted as “unremarkable.” /d.

at 83. On May 30, 2017, plaintiff's left eye was noted as

“unremarkable.” /d. at 84.

Plaintiff was not provided a_ reasonable

accommodation at the Southport CF on account of his

vision issues because as of April 28, 2017, the visual acuity

of plaintiff's left eye, “while wearing corrective lenses, was

20/25.” Dkt. No. 158-3 at 10 (citing Dkt. No. 158-3 at 46). 19

To qualify for a reasonable accommodation based on

“severe visual impairment” an inmate must have a “[v]isual

acuity of 20/70 or less in the better eye with best correction.”

/d. at87. To qualify for a reasonable accommodation based

on “legal blindness” an inmate must have “[v]isual acuity of

20/200 or less in the better eye with best correction.” /d. at

87.

ll. Arguments

A. Defendants’ Arguments Defendants argue that plaintiff's claims are time barred

and he is not entitled to tolling of the statute of limitations.

See Dkt. No. 158-8 at 5-10. More specifically, defendants

argue that “[t]he applicable statute of limitations for claims

asserted pursuant to 42 U.S.C. § 1983 and the ADA is New

York’s three-year statute of limitations for tort actions under

N.Y. C.P.L.R. § 214(5).” /d. at 5 (quoting Solomon v. Cnty. 20

of Nassau, No. CV 20-5227 (AYS), 2021 WL 5631766, at *6

(E.D.N.Y. Dec. 1, 2021)). Defendants contend that

“Plaintiffs Eighth Amendment claims accrued on January

20, 2017, the last date Plaintiff claims he complained to

Supt. Sheahan, and his ADA claims accrued on August 9,

2017, the last date he claims that his request for reasonable

accommodations was denied.” /d. “To be timely, Plaintiff

had to commence his Eighth Amendment claims no later

than January 25, 2020, and his ADA... claim no later than

August 9, 2020.” /d.

Further, defendants argue that plaintiff is not entitled to

statutory or equitable tolling of the statute of limitations.

See Dkt. No. 158-8 at 6-7. Defendants state that although

federal law governs the statute of limitations, statutory

“tolling principles" are determined by state law. /d. at 6. “In

New York, the statute of limitations period may be extended 21

[i]f a person entitled to commence an action is under a

disability because of infancy or insanity at the time the

cause of action accrues, but such tolling is not appropriate

where a plaintiff does not act with reasonable diligence.” /d.

(citing ’ N.Y. C.P.L.R. § 208) (internal quotation marks and

citations omitted). Defendants acknowledge that plaintiff

“relies on his visual impairment and mental health issues. . .

to justify why he is entitled to tolling of the statute of

limitations,” but they argue that neither condition warrants

statutory tolling because plaintiff was able to function and

was never declared incompetent. /d. at 6-7. Further,

defendants argue that plaintiff is not entitled to equitable

tolling because plaintiff was not diligent in pursuing his

rights and there were no extraordinary circumstances

preventing him from filing his claims in a timely manner.

See id. at 7-10. 22

Alternatively, defendants argue that even if plaintiff is

afforded some degree of tolling, his claims are still time

barred. See Dkt. No. 167 at 4-8. Defendants recognize that

plaintiff filed a grievance alleging deliberate medical

indifference and the filing of a grievance tolls the statute of

limitations “during the time in which [an incarcerated

plaintiff] complete[s] the mandatory exhaustion process.”

Id. at 5 (citing Gonzalez v. Hasty, 651 F.3d 318, 324 (2d Cir.

2011)). As the grievance procedure “imposes a mandatory

deadline for CORC to respond, an [incarcerated individual]

exhausts [his] administrative remedies when he follows the

procedure in its entirety but the CORC fails to respond

within the 30 days it is allocated under the regulations.” /d.

(quoting Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020)).

“Under this rule, equitable tolling of the statute of limitations

during the administrative exhaustion procedure should end 23

thirty days after CORC receives an appeal of a grievance if

CORC fails to issue a decision within that time period.” /d.

(citing Gonzalez, 651 F.3d at 324).

hg Applying this standard, defendants explain that

plaintiff's January 17, 2017, deliberate medical indifference

grievance tolled the applicable statute of limitations until the

grievance process was exhausted. See Dkt. No. 167 at 5

(citing Dkt. No. 167-1 at 3). On March 13, 2017, plaintiff

appealed his grievance to CORC. See id. at 6 (citing Dkt.

No. 167-1 at 3). CORC issued a decision on plaintiff's

grievance on March 21, 2018. See id. (citing Dkt. No. 167-

1 at 3). Defendants contend that the statute of limitations

began to accrue on April 13, 2017, because CORC did not

issue a decision within thirty days of receiving plaintiff's

grievance appeal. See id. Defendants assert that the

statute of limitations expired on April 14, 2020, but plaintiff

did not commence this lawsuit until April 20, 2022. See id.

As to plaintiff's ADA claim, defendants assert that the

Statute of limitations began to accrue on August 9, 2017,

because that is the date that Sheahan denied plaintiff a

reasonable accommodation. Dkt. No. 167 at 6. On

February 5, 2018, plaintiff filed a grievance relating to his

ADA claim, tolling the statute of limitations. See id. (citing

Dkt. No. 167-1 at 3). At the time plaintiff filed his grievance,

181 days had accrued towards the statute of limitations and

914 days remained on the statute of limitations. See id. On

March 21, 2018, plaintiff appealed his grievance to CORC.

See id. (citing Dkt. No. 167-1 at 3). CORC issued a decision

on plaintiffs grievance on June 12, 2019. See id. (citing

Dkt. No. 167-1 at 3). Defendants assert that the statute of

limitations “began to accrue again on April 20, 2018, with 25

914 days remaining in the statute of limitations” because

CORC did not issue a decision within thirty days of receiving

plaintiff's grievance appeal. /d. at 7. Defendants assert

{that the statute of limitations expired on October 20, 2020,

but plaintiff did not commence this lawsuit until April 20,

2022. See id.

Further, defendants argue that New York State

Executive Order 202.8, that tolled the statute of limitations

from March 20, 2020, to November 3, 2020, due to the

COVID-19 pandemic, did not extend plaintiff's statute of

limitations long enough to render this lawsuit timely. Dkt.

No. 167 at 7-8.

B. Plaintiff's Arguments

Plaintiff argues that defendants’ motion for summary

judgment should be denied because there are multiple

factual disputes. See Dkt. Nos. 164, 165. Plaintiff asserts 26

that the injuries he suffered as a result of Rosenberg’s

treatment left him in a “general state of hopelessness and

helplessness.” Dkt. No. 164 at 2. He claims that both of his

~Jeyes were “completely ineffective,” rendering him “totally

handicapped,” and causing him “to have a serious mental

collapse.” /d. at 2-3. Plaintiff also claims that he was placed

on mental health medications and “was not in the right state

of mind nor physical health” to commence this lawsuit. /d.

at 3-4. Further, plaintiff states that he “could not read or

write due to extreme vision los[s]” and was “not in the right

state of mind to function.” /d. at 4. Additionally, plaintiff

claims that Oakes, Sheahan, Ferguson, and Thoms did not

approve reasonable accommodations, such that he did not

have full access to the law library and could not “pursue due

diligence.” /d. at 4-5.

Alternatively, plaintiff argues that he exercised due

diligence by filing a grievance, exhausting his administrative

remedies, contacting Legal Aid to represent him in this

j matter, and unsuccessfully securing representation. See

Dkt. No. 164 at 5-6, 10, 12. Plaintiff also argues that his

legal blindness and his approval to receive legal documents

in eighteen-to-twenty-two-point font are evidence of his

visual impairment. See id. at 5-6, 8, 10 (citing Dkt. No. 2 at

35). He claims that corrective lenses were not enough to fix

his vision condition. See id. at 9-10.

Conversely, plaintiff states that on January 20, 2020,

after he was transferred to the Sullivan Correctional Facility

(“Sullivan CF”), he “was provided with all accommodations”

to “properly function.” Dkt. No. 164 at 7. Plaintiff appears

to state that another inmate at the Sullivan CF handwrote

his complaint in February 2022, and that this is evidence of 28

“persistence and consistence [in] pursuing” his claims, such

that he demonstrates due diligence and extraordinary

circumstances and should be entitled to equitable tolling.

at 7-8.

Plaintiff also argues he is entitled to summary judgment

on his claims and submits a “list of genuine issues of

material fact that require(s) compensatory damages.” DKkt.

No. 161 at 1-2. In support of his motion for summary

judgment, plaintiff reasserts the factual contentions raised

in his amended complaint. See generally id.

Plaintiff also argues that his ADA claim should not be

dismissed for lack of subject matter jurisdiction. Dkt. No.

164 at 13-14.

Ill. Legal Standards

On review of defendants’ motion for summary

judgment, the facts will be related in the light most favorable 29

to plaintiff as the nonmoving party. See Rattner v. Netburn,

930 F.2d 204, 209 (2d Cir. 1991) (“In assessing the record .

.. to determine whether there is a genuine issue as to any

Material fact, the court is required to resolve all ambiguities

and draw all factual inferences in favor of the party against

whom summary judgment is sought.”).

A motion for summary judgment may be granted “if the

movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a

matter of law.” FED. R. Civ. P. 56(a). The moving party

bears the burden of demonstrating the absence of disputed

material facts by citing to “the record, including depositions,

documents, electronically stored information, affidavits or

declarations, stipulations (including those made □ for

purposes of the motion only), admissions, interrogatory

answers, or other materials.” FED. R. Civ. P. 56(c). A fact is 30

material if it “might affect the outcome of the suit,” as

determined by the governing substantive law; a “dispute

about a material fact is ‘genuine’ . . . if the evidence is such

jthat a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986).

If the moving party meets this burden, the nonmoving

party “must set forth specific facts showing that there is a

genuine issue for trial.” Anderson, 477 U.S. at 248 (citation

omitted); see Wright v. Goord, 554 F.3d 255, 266 (2d Cir.

2009). “When ruling on a summary judgment motion, the

district court . . . must resolve all ambiguities and draw all

reasonable inferences against the movant.” Dallas

Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.

2003) (citation omitted). Still, the nonmoving party cannot

rely on “mere speculation or conjecture as to the true nature 31

of the facts to overcome a motion for summary judgment.”

Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 12 (2d Cir. 1986)

(citing Quarles v. Gen. Motors Corp., 758 F.2d 839, 840 (2d

Cir. 1985) (per curiam)).

Where a party seeks judgment against a pro se litigant,

ora pro se litigant moves for summary judgment, the Court

must afford the pro se litigant special solicitude. See

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d

Cir. 2006).

IV. Discussion

A. Statute of Limitations

“[A] statute of limitations defense may be decided on a

Rule 12(b)(6) motion if the defense appears on the face of

the complaint.” Clover Communities Beavercreek, LLC v.

Mussachio Architects P.C., 676 F. Supp. 3d 82, 97 (N.D.N.Y.

2023) (quoting Ellul v. Congregation of Christian Bros., 774 32

F.3d 791, 798 n.12 (2d Cir. 2014) (citing Staehr v. Hartford

Fin. Servs. Grp., Inc., 547 F.3d 406, 425 (2d Cir. 2008))).

“Because the statute of limitations is an affirmative defense,

Defendants carry the burden of showing that Plaintiff failed

to plead timely claims.” /d. (quoting Smith v. City of New

York, 1 F. Supp. 3d 114, 118 (S.D.N.Y. 2013)). “Dismissing

claims on statute of limitations grounds at the complaint

stage ‘is appropriate only if a complaint clearly shows the

claim is out of time.” /d. (quoting Smith, 1 F. Supp. 3d at

118 (quoting Harris v. City of New York, 186 F.3d 243, 250

(2d Cir. 1999)); see also Anthony v. Rosenberg, No. 9:22-

CV-0378 (BKS/CFH), 2023 WL 5776599, at *5 (N.D.N.Y.

June 22, 2023), report and recommendation adopted in

part, rejected in part, No. 9:22-CV-378 (BKS/CFH), 2023

WL 5367343 (N.D.N.Y. Aug. 22, 2023) (quoting Egan v.

Kennedy, No. 04-CV-6626 (CJS), 2008 WL 4647740, at *3 33

(W.D.N.Y. Oct. 17, 2008)) (“As the statute of limitations is

an affirmative defense, on a motion to dismiss, ‘the

defendant has the burden of demonstrating, based on the

Jallegations in the complaint, that the claim is untimely.’”);

Fed. R. Civ. P. 8(c)(1).

Although neither Section 1983 nor the ADA set forth a

statute of limitations to bring a claim, “42 U.S.C. § 1988

endorses the borrowing of state-law limitations provisions

where doing so is consistent with federal law.” Anthony,

2023 WL 5776599, at *5 (quoting Owens v. Okure, 488 U.S.

235, 239 (1989)); Purcell v. N.Y. Inst. of Tech. - Coll. of

Osteopathic Med., 931 F.3d 59, 62-63 (2d Cir. 2019). “In

New York, the applicable statute of limitations for a section

1983 [or ADA] suit is three years, which is derived from the

general or residual personal injury laws of the state.” /d.

(first citing N.Y. C.P.L.R. § 214(5); then citing Owens, 488 34

U.S. at 249-50; then citing Romer v. Leary, 425 F.2d 186,

187 (2d Cir. 1970); then citing Lugo v. Senkowski, 114

F.Supp.2d 111, 113 (N.D.N.Y. 2000)). Therefore, Plaintiff's

Eighth Amendment deliberate indifference and ADA claims

are “subject to New York's three-year statute of limitations.”

Id.

“Federal law, however, governs the determination of

the accrual date for purposes of a section 1983 [or ADA]

claim.” Anthony, 2023 WL 5776599, at *5 (citing Pearl v.

City of Long Beach, 296 F.3d 76, 80 (2d Cir. 2002)); De La

Rosa v. Lewis Foods of 42nd St., LLC, 124 F. Supp. 3d 290,

299 (S.D.N.Y. 2015). “A claim accrues ‘when the plaintiff

knows or has reason to know’ of the harm. /d. (quoting

Pearl, 296 F.3d at 80). “The crucial time for accrual

purposes is when the plaintiff becomes aware that he [or

she] is suffering from a wrong for which damages may be 35

recovered in a civil action.” /d. (quoting Singleton v. City of

New York, 632 F.2d 185, 192 (2d Cir. 1980)). “With respect

to a medical indifference [or ADA] claim, such a claim

J accrues when the constitutional violation allegedly occurs.”

Id. (citing Cotto v. City of New York, No. 15-CV-9123 (RWS),

2017 WL 3476045, at *3 (S.D.N.Y. Aug. 11, 2017)). “Actual

awareness of injury is irrelevant[.|” /d. (quoting Spigner v.

City of New York, Bronx Cty., No. 94-CV-8015 (MBM), 1995

WL 747813, at *2 (S.D.N.Y. Dec. 18, 1995), aff'd, 101 F.3d

1393 (2d Cir. 1996)). Similarly, “[t]he fact that [the p]laintiff

may have been unaware that he had legal claims . . . is of

[no consequence.” Keitt v. City of New York, No. 09-CV-5663

(PKC/DF), 2010 WL 3466175, at *6 (S.D.N.Y. Aug. 9, 2010),

report and recommendation adopted, 2010 WL 3466079

(S.D.N.Y. Sept. 2, 2010).

B. Statutory Tolling 36

“Although it is well-settled that federal law determines

the accrual of a cause of action arising under section 1983,

tolling principles are informed by state law, unless those

State principles would ‘defeat the goals’ of section 1983.”

Anthony, 2023 WL 5776599, at *6 (quoting Pearl, 296 F.3d

at 80 (quoting Hardin v. Straub, 490 U.S. 536, 539 (1989))).

“In New York, the statute of limitations period may be

extended ‘[i]f a person entitled to commence an action is

under a disability because of infancy or insanity at the time

the cause of action accrues.” /d. (quoting N.Y. C.P.L.R §

208). However, “such tolling ‘is not appropriate where a

plaintiff does not act with reasonable diligence.” □□□□

(quoting Levermore v. De Silva, 465 F. App’x 16, 17 (2d Cir.

2012) (Summary order)). “Physical ailments, however, do

not suffice to invoke the New York tolling provisions.” /d.

(quoting Baroor v. New York City Dep't of Educ., 362 F. 37

App’x 157, 160 (2d Cir. 2010) (summary order); see also

Orlando v. Johnson, No. 9:19-CV-1183 (MAD/CFH), 2022

WL 2440037, at *3 (N.D.N.Y. July 5, 2022), aff'd, No. 22-

1683, 2024 WL 2796395 (2d Cir. May 31, 2024) (quoting

Olivio v. United States, No. 20-CV-231 (RPK)(MMH), 2022

WL 409720, *3 (E.D.N.Y. Feb. 10, 2022) (quoting Rhodes v.

Senkowski, 82 F. Supp. 2d 160, 173 (S.D.N.Y. 2000))) (“[A]

plaintiff must do more than allege the existence of physical

or mental ailments; they must also show[ ] that these health

problems rendered [them] unable to pursue [their] legal

rights during the [relevant] time period.”) (internal quotation

marks omitted).

C. Equitable Tolling

“Equitable tolling of the statute of limitations is

applicable in certain situations where the Court determines

that a plaintiff should, in fairness, be excused from his or 38

her lateness in filing a complaint.” Anthony, 2023 WL

5776599, at *7 (citing Gonzalez, 651 F.3d at 323-24).

“Equitable tolling is an extraordinary measure that applies

only when plaintiff is prevented from filing despite exercising

that level of diligence which could reasonably be expected

in the circumstances.” /d. (citing Gonzalez, 651 F.3d at 323-

24 (quoting Veltri v. Bldg. Serv. 32B-J Pension Fund, 393

F.3d 318, 322 (2d Cir. 2004))); Lyons v. Emerick, 187 F.

App’x 219, 221 (3d Cir. 2006) (“[I]n order to be eligible for

equitable tolling, a plaintiff must exercise “reasonable

diligence in investigating and bringing [his or her] claims.”).

“The plaintiff bears the burden of showing that he or she is

entitled to equitable tolling.” /d. (citing Abbas v. Dixon, 480

F.3d 636, 642 (2d Cir. 2007)); see also Mandarino v.

Mandarino, 408 F. App’x 428, 431 (2d Cir. 2011) (summary

order) (quoting McCarthy v. Volkswagen of Am., Inc., 55 39

N.Y.2d 543, 548 (1982)) (“[equitable] tolling . . . is available

‘only [to] those individuals who are unable to protect their

legal rights because of an over-all inability to function in

SOCiety.’”).

“[T]he Second Circuit has held that equitable tolling is

applicable to claims brought under the PLRA, otherwise a

prisoner would risk the dismissal of his or her complaint

based on untimeliness if he or she were to wait to receive a

final administrative decision before filing suit.” Trapani v.

Coryer, No. 14-CV-683 (GTS/CFH), 2016 WL 8732638, at

*5 (N.D.N.Y. June 6, 2016), report and recommendation

adopted, No. 9:14-CV-0683 (GTS/CFH), 2016 WL 8732640

(N.D.N.Y. July 15, 2016) (citing Gonzalez, 651 F.3d at 323-

24). “Under the Second Circuit's rule, the equitable tolling

period begins when a plaintiff first raises his administrative

claim, and ends when the plaintiff's administrative remedies 40

are deemed exhausted.” /d. (citing Gonzalez, 651 F.3d 318,

at 324). “The statute of limitations, however, is only tolled

during the period when a prisoner is ‘actively exhausting’

administrative remedies.” /d. (citing Gonzalez, 651 F.3d

at 322 n.2). “The statute of limitations is not tolled during

the period between the accrual of the claims and when the

plaintiff began the administrative remedy process. □□□□

(citing Gonzalez, 651 F.3d at 324).

D. Executive Order 202.8

“On March 7, 2020, then-New York State Governor

Andrew Cuomo issued Executive Order 202, declaring a

disaster emergency for the State of New York due to the

COVID-19 pandemic.” Briglin v. Hurley, No. 9:23-CV-1001

(BKS/TWD), 2024 WL 3828234, at *9 (N.D.N.Y. Aug. 15,

2024) (citing N.Y. Comp. Codes R. & Regs. tit. 9, § 8.202

(“N.Y.C.C.R.R.”)).. “On March 20, 2020, Governor Cuomo 41

signed Executive Order 202.8, limiting court operations to

‘essential matters.” /d. Executive Order 202.8 declared

that “any specific time limit for the commencement, filing, or

Service of any legal action, notice, motion, or other process

or proceeding as prescribed by the procedural laws of the

state .. . is hereby tolled from the date of this executive

order until April 19, 2020.” /d. (quoting N.Y.C.C.R.R. tit. 9, §

8.202.8). “Nine subsequent Executive Orders collectively

extended the first order until November 3, 2020.” § □□□

(additional citations omitted). “Executive Order 202.72

provided that the tolling of time limits established by

Executive Order 202.8 would no longer be in effect as of

November 4, 2020[,] . . . yielding a total tolling period of 228

days.” /d. (additional citations omitted). “Executive Order

202.8 applies to federal cases applying New York's statute

of limitations, including .. . § 1983 claims.” /d. (citing Bell v. 42

Saunders, No. 9:20-CV-00256 (BKS/TWD), 2022 WL

2064872, at *4-5 (N.D.N.Y. June 8, 2022)).

E. Analysis

1. Eighth Amendment: Deliberate Medical Indifference

Viewing the facts in the light most favorable to plaintiff

as the nonmoving party, the undersigned concludes that

plaintiffs Eighth Amendment deliberate medical

indifference claim began to accrue on January 17, 2017,

because that is the date that he filed a grievance relating to

outside medical care and a retinal tear. See Dkt. No. 167-

° The undersigned notes that plaintiff's Eighth Amendment .|claim could be considered as having accrued from January 13, 2017, the date plaintiff first complained of left eye pain following treatment from Rosenberg, or January 25, 2017, the date plaintiff complained to Sheahan of his left eye pain following treatment from Rosenberg. See generally Dkt. No. 85. However, the undersigned concludes that January 17, 2017, is the accrual date most favorable to plaintiff because the filing of plaintiff's grievance automatically tolled the statute of limitations until the grievance procedure is 43

1at3. On March 13, 2017, CORC received plaintiff's

appeal of his deliberate medical indifference grievance.

See Dkt. No. 167-1 at 3. On March 21, 2018, CORC issued

decision on plaintiff's medical indifference grievance. See

id. The DOCCS grievance procedure prescribes that “upon

receipt of an appeal, CORC ‘shall review each appeal,

render a decision on the grievance, and transmit its

decision to the facility, with reasons stated, for the grievant,

the grievance clerk, the superintendent, and any direct

parties within 30 calendar days from the time the appeal

was received.” Coleman v. Hamilton, No. 9:24-CV-455

(AMN/PJE), 2025 WL 2933461, at *7 (N.D.N.Y. Aug. 29,

2025), report and recommendation adopted, No. 9:24-CV-

00455 (AMN/PJE), 2025 WL 2731047 (N.D.N.Y. Sept. 25,

exhausted. See Trapani, 2016 WL 8732638, at *5) (citing Gonzalez, 651 F.3d at 323-24). 44

2025) (quoting N.Y.C.R.R. § 701.5(d)(3)(ii)). “[B]ecause the

DOCCS Inmate Grievance Procedure imposes a

mandatory deadline for the CORC to respond, an inmate

jexhausts administrative remedies when he follows the

procedure in its entirety but the CORC fails to respond

within the 30 days it is allocated under the regulations.”

Romano v. Ulrich, 49 F.4th 148, 154 (2d Cir. 2022) (quoting

Hayes v. Dahlke, 976 F.3d 259, 270 (2d Cir. 2020)). As

CORC did not issue a decision on plaintiffs medical

indifference grievance within the thirty days, the

undersigned concludes that plaintiff's grievance exhausted

jon April 12, 2017. See Romano, 49 F.4th at 154 (quoting

Hayes, 976 F.3d at 270). On April 13, 2017, the statute of

limitations for plaintiff's Eighth Amendment claim began to

run. Plaintiff had 1,096 days from April 13, 2017, or until

April 14, 2020, to commence a lawsuit. 45

On March 20, 2020, when E.O. 202.8 went into effect

and tolled the statute of limitations for all legal actions due

to the Covid-19 pandemic, 1,072 days had elapsed towards

statute of limitations. See Briglin, 2024 WL 3828234, at

*9 (N.D.N.Y. Aug. 15, 2024) (citing N.Y.C.C.R.R. tit. 9, §

8.202.8). On November 4, 2020, when the _ tolling

provisions of E.O. 202.8 ended and the statute of limitations

resumed, plaintiff had twenty-four days, or until November

28, 2020, to commence a lawsuit. As November 28, 2020,

fell on a Saturday, plaintiff had until Monday, November 30,

2020, to commence a lawsuit. See Williams v. Zuk, No.

9:07-CV-789 (DNH/DEP), 2009 WL 909520, at *2 (N.D.N.Y.

Apr. 3, 2009) (citing Fed. R. Civ. P. 6(a)(1) and (3)) (“Rule

6(a)(1) directs that when applying a prescribed time, the first

day of the period is excluded, but the last day is included

unless falling on a Saturday, Sunday, a legal holiday, or a 46

day on which weather or other conditions make the clerk's

office inaccessible.”). The statute of limitations for plaintiff

to commence a Section 1983 lawsuit expired on November

30, 2020, and plaintiff did not commence this lawsuit until

April 20, 2022. See Dkt. No. 1.

Therefore, the undersigned concludes that plaintiff's

Eighth Amendment deliberate medical indifference claim is

untimely because plaintiff filed this lawsuit after the statute

of limitations had run. Accordingly, the undersigned

recommends that defendants’ motion for summary

judgment be granted as to plaintiffs Eighth Amendment

deliberate medical indifference claim.

2. ADA

Viewing the facts in the light most favorable to plaintiff

as the nonmoving party, the undersigned concludes that

plaintiffs ADA claim began to accrue on August 9, 2017, 47

when Sheahan’s designee and the Mid-State CF

superintendent's designee affirmed the denials of plaintiff's

reasonable accommodation.’ See Dkt. No. 2 at 37-38, 41.

J On August 9, 2017, the statute of limitations for plaintiff's

ADA claim began to run and plaintiff had 1,096 days, or until

August 9, 2020, to commence a lawsuit.

On February 5, 2018, plaintiff filed a grievance relating

to the denial of his request for reasonable accommodations,

tolling the statute of limitations. See Dkt. No. 167-1 at 3;

see also Trapani, 2016 WL 8732638, at *5 (citing Gonzalez,

651 F.3d at 323-24). As of February 5, 2018, 181 days had

’ Plaintiff filed his request for reasonable accommodations at the Southport CF on June 28, 2017, and at the Mid-State CF on July 25, 2017. See Dkt. No. 2 at 37, 41. The August 9, 2017, date is more favorable to plaintiff as the final denial of these requests. See id. at 38, 41. 48

accrued towards the statute of limitations on plaintiff's ADA

claim.

On March 21, 2018, CORC received plaintiffs appeal

Of his reasonable accommodation grievance. See Dkt. No.

167-1 at 3. On June 12, 2019, CORC issued a decision on

plaintiff's reasonable accommodations grievance. See id.

As CORC did not issue a decision on plaintiff's reasonable

accommodations grievance within the thirty days, the

undersigned concludes that plaintiff's grievance exhausted

on April 20, 2018. See Romano, 49 F.4th at 154 (quoting

Hayes, 976 F.3d at 270). On April 21, 2018, the statute of

limitations began to run again on plaintiff's ADA claim, and

plaintiff had 915 days within which to commence a lawsuit.

see Briglin, 2024 WL 3828234, at *9 (N.D.N.Y. Aug. 15,

2024) (citing N.Y.C.C.R.R. tit. 9, § 8.202.8).

On March 20, 2020, when E.O. 202.8 went into effect

and tolled the statute of limitations for all legal actions due

to the Covid-19 pandemic, a total of 881 days had elapsed

{towards the statute of limitations. On November 4, 2020,

when the tolling provisions of E.O. 202.8 ended and the

statute of limitations resumed, plaintiff had 215 days, or until

June 7, 2021, to commence a lawsuit. The statute of

limitations for plaintiff to commence a lawsuit for his ADA

claim expired on June 7, 2021, and plaintiff did not

commence this lawsuit until April 20, 2022. See Dkt. No. 1.

Therefore, the undersigned concludes that plaintiff's

ADA claim is untimely and barred by the statute of

limitations. Accordingly, the undersigned recommends that

defendants’ motion for summary judgment be granted as to

plaintiffs ADA claim.

3. Plaintiff's Tolling Arguments 50

Plaintiff argues that he should be afforded statutory and

equitable tolling because of his physical and mental

ailments, exhaustion of the DOCCS grievance process, and

{attempts to obtain legal representation, such that the tolling

period would render his Eighth Amendment deliberate

medical indifference and ADA claims timely. See Dkt. Nos.

164 at 2-6, 8, 10, 12. The undersigned disagrees for

several reasons.

Plaintiff argues that he was/is legally blind, “could not

read or write due to extreme vision los[s],” and his bilateral

eye condition prevented him from pursuing his legal claims.

Dkt. No. 164 at 2, 4-6. However, even accepting plaintiff's

contentions as true, this argument is legally incorrect. As

stated above, physical conditions do not trigger statutory

tolling under New York law. See Anthony, 2023 WL

5776599, at *6 (quoting Baroor, 362 F. App’x at 159-60). 51

Similarly, although plaintiff states things like he was in

a “general state of hopelessness and helplessness,” had a

“serious mental collapse,” was placed on mental health

Medications, and “was not in the right state of mind,” Dkt

No. 164 at 2-4; plaintiff has submitted no evidence,

admissible or otherwise, that he was diagnosed with a

mental health condition, was prescribed medication for a

mental health condition, or any other medical evidence

establishing the severity of such a condition(s). Plaintiff's

allegations regarding his mental state during the relevant

period are conclusory and fail to satisfy his burden

demonstrating that he is entitled to statutory tolling because

he was “under a disability because of infancy or insanity at

the time” either his Eighth Amendment or ADA claims

accrued. See Anthony, 2023 WL 5776599, at *6 (quoting

N.Y. C.P.L.R § 208). 52

Further, plaintiff has not demonstrated that he

exercised due diligence. Plaintiff argues that he exercised

due diligence because he filed a grievance and exhausted

jthe DOCCS grievance process. See Dkt. No. 164 at 5.

However, exhausting the DOCCS grievance process is a

statutory requirement to commence a lawsuit for a Section

1983 claim; not due diligence. See 42 U.S.C. § 1997e(a);

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA’s

exhaustion requirement applies to all inmate suits about

prison life, whether they involve general circumstances or

particular episodes, and whether they allege excessive

force or some other wrong.”).

Plaintiff also argues that he exercised due diligence

because he contacted Legal Aid, the Prison Legal Services,

and at least one private attorney. See Dkt. No. 164 at 5-6,

10, 12; see also Dkt. No. 2 at 54-56. Yet, the “[I]Jack of legal 53

representation does not merit equitable tolling.” Thom v.

United States, No. 05 CV 2847 (ARR), 2006 WL 3486740,

at *2 (E.D.N.Y. Nov. 30, 2006) (citing Smith v. McGinnis, 208

w{F.3d 13, 18 (2d Cir.2000)); Miles v. City of New York, No.

14-CV-9302 (VSB), 2018 WL 3708657, at *9 (S.D.N.Y. Aug.

3, 2018) (concluding that the plaintiff did not exercise due

diligence when he sought legal representation and the

attorneys he contacted provided advice but did not take him

on as a lient.); Huckabone v. City of Jamestown, N.Y., No.

09-CV-602-A (RJA), 2014 WL 4146844, at *4 (W.D.N.Y.

Aug. 19, 2014) (concluding that the plaintiff did not exercise

due diligence when he sought but was refused legal

representation).

Moreover, plaintiff's argument that he could not pursue

this lawsuit or any of his claims because he was denied

reasonable accommodations is contradicted by plaintiff's 54

other testimony. See Dkt. No. 164 at 5-6. Plaintiff asserts

that he could not pursue his lawsuit because he was legally

blind and needed all of his legal documents provided to him

a larger font. See id. Yet, plaintiff testified that he (1)

wrote his January 2017 grievance alleging deliberate

medical indifference; (2) was able to draft and file his August

2020 claim with New York State; and (3) handwrote his

amended complaint despite the Upstate Correctional

Facility taking away his reasonable accommodations. See

Dkt. No. 158-1 at 106-07, 117, 123. Plaintiff provides no

further rationale explaining how he was able to handwrite

and file his January 2017 grievance after he suffered his left

eye injury, and before having corrective surgery on both

eyes, but was otherwise unable to file this lawsuit until over

five years later. Similarly, plaintiff fails to explain how he

was able to write and submit his August 2020 New York 55

State claim and his amended complaint without reasonable

accommodations, but could not file this lawsuit unless he

had reasonable accommodations and learned how to use

them.

Finally, plaintiff testified that his original complaint was

handwritten by another inmate and that he reviewed and

signed the document. See Dkt. No. 158-1 at 53-54; 121-

22. Plaintiff does not allege that he sought the assistance

of, and does not provide any reason why he did not seek

the assistance of, any other individual at the Southport CF

or Mid-State CF to help him draft a complaint after he

exhausted the DOCCS grievance process.

Therefore, the undersigned concludes that plaintiff

failed to meet his burden of demonstrating reasonable

diligence and should not be afforded equitable tolling of his

Eighth Amendment deliberate medical indifference or ADA 56

claims. See Anthony, 2023 WL 5776599, at *7 (citing

Gonzalez, 651 F.3d at 323-24 (quoting Veltri, 393 F.3d at

322). hg Accordingly, the undersigned concludes that plaintiff's

Eighth Amendment and ADA claims are barred by the

statute of limitations because plaintiffs complaint is

untimely and he is not entitled to any additional statutory or

equitable tolling. See Anthony, 2023 WL 5776599, at *5.

Therefore, it is unnecessary to analyze the merits of those

claims. See Dillard’s, Inc. v. Wells Fargo Bank, N.A., No.

25 CV 4330 (VM), 2026 WL 550219, at *3 (S.D.N.Y. Feb.

27, 2026) (declining to analyze the merits of claims “time-

barred under the applicable statute of limitations”).

V. Doe Defendants

Plaintiffs amended complaint alleges that (1) on

January 13, 2017, John Doe 1 and John Doe 2 treated him

and Jane Doe 9 spoke with him; (2) between January 28,

2017, and January 26, 2017, Jane Doe 2 spoke with him;

and (3) in March 2017, Doe Mental Health Counselor began

treating him. See Dkt. No. 85 at 2, 4, 6-8. Plaintiff named

John Doe 1, John Doe 2, Jane Doe 2, Jane Doe 9, and Doe

Mental Health Counselor (collectively “Doe Defendants”) as

defendants in this action. See Dkt. No. 85. To date, the

Doe Defendants have not been identified and served with

plaintiff's amended complaint or otherwise appeared in this

action.

It is well settled that a plaintiff's pro se status “does not

exempt a [plaintiff] from compliance with relevant rules of

procedural and substantive law.” TJriestman, 470 F.3d at

477 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.

1983)). Under the Federal Rules of Civil Procedure, “[i]f a

defendant is not served within ninety days after the

complaint is filed, the court—on motion or on its own after

notice to the plaintiff—must dismiss the action without

prejudice against that defendant or order that service be

Made within a specified time.” FED. R. Civ. P. 4(m). This

Court’s local rules shorten the time for service of process

from ninety days under Rule 4(m) to sixty days. See

N.D.N.Y. L.R. 4.1(b). However, when “the plaintiff shows

good cause for the failure, the court must extend the time

for service for an appropriate period.” FED. R. Clv. P. 4(m).

When deciding whether to extend a plaintiff's time for

serving defendants, “a district court is afforded ample

discretion to weigh the ‘overlapping considerations’

involved in determining whether good cause exists, and

whether an extension may be granted in its absence.”

Shepherd v. Fischer, No. 9:10-CV-01524 (TJM/DEP), 2015

WL 1246049, at *21 (N.D.N.Y. Feb. 23, 2015) (citing Zapata

v. New York, 502 F.3d 192, 197 (2d Cir. 2007)). Some

circuits require district courts to apply a two-step analysis to

determine whether good cause exists for an extension to be

4)granted. See Zapata, 502 F.3d at 197. However, the

Second Circuit has determined that, “whether such a

bifurcated inquiry would be useful is a question best left to

the district court[.]” /d.

Based on a thorough review of the record, the

undersigned concludes that there is no good cause for

plaintiff's failure to identify and serve the Doe Defendants.

Plaintiff filed his amended complaint on October 23, 2023.

See Dkt. No. 85. In its Decision and Order dated March 13,

2023, the Court permitted plaintiffs Eighth Amendment

deliberate medical indifference claim against the Doe

Defendants to survive initial review. See Dkt. No. 102 at

21-22. In the March 2023 Decision and Order, the Court

ordered plaintiff to “take reasonable steps through

discovery to ascertain the identity of defendants John Doe

#1, John Doe #2, Jane Doe #9, Jane Doe #2, and Doe

Mental Health Counselor.” /d. at 23-24. The Court also

advised plaintiff that the “failure to timely serve those

defendants will result in dismissal of the claims asserted

against them and termination of those defendants from the

action.” /d. at 24. Over three years have passed since the

Court issued its direction in its March 2023 Decision and

Order. To date, plaintiff has failed to either identify the Doe

Defendants or serve them with the amended complaint.

During this period, the Court (1) held a discovery scheduling

conference that plaintiff refused to attend and (2) extended

the time to complete discovery. See Dkt. Nos. 118-21, 136.

Plaintiff has been afforded ample opportunity to identify and

serve the Doe Defendants. Plaintiff's failure to do so “has

not been the result of lack of opportunity.” See Taft v.

Fricke, No. 9:17-CV-0346 (GTS/CFH), 2019 WL 5197180,

at *1, n.2 (N.D.N.Y. July 26, 2019), report and

j/recommendation adopted, 2019 WL 4744225 (N.D.N.Y.

Sept. 30, 2019).

As the Doe Defendants have not been served and

have not appeared in the action within the applicable ninety-

day time period, and there is no good cause to justify

plaintiff's failure to identify and serve the Doe Defendants,

it is recommended that plaintiff's claims, insofar as asserted

against the Doe Defendants, be dismissed.

VI. Conclusion

WHEREFORE, for the reasons set forth herein, it is

hereby

RECOMMENDED, that defendants’ motion for

summary judgment (Dkt. Nos. 157-58) be GRANTED in its

entirety; and it is further

hg RECOMMENDED, that plaintiff's motion for summary

judgment (Dkt. No. 161) be DENIED as moot; and it is

further

RECOMMENDED, that Defendants John Doe 1, John

Doe 2, Jane Doe 2, Jane Doe 9, and Doe Mental Health

Counselor be sua sponte DISMISSED from this action

without prejudice, due to plaintiff's failure to identify or serve

these defendants with the amended complaint; it is

ORDERED, that the Clerk serve a copy of this Report-

Recommendation and Order on plaintiff in accordance with

Local Rules.

IT IS SO ORDERED.

Pursuant to 28 U.S.C. § 636(b)(1), defendants have

FOURTEEN (14) days within which to file written objections

to the foregoing report. Such objections shall be filed with

jthe Clerk of the Court. FAILURE TO OBJECT TO THIS

REPORT WITHIN FOURTEEN (14) DAYS WILL

PRECLUDE APPELLATE REVIEW. See Roldan □□□

Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec’y

of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989));

see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 6(a), 72.°

Dated: August 17, 2026

If you are proceeding pro se and are served with this Report-Recommendation and Order by mail, three (3) additional days will be added to the fourteen-day (14) period, meaning that you have seventeen (17) days from the date the Report-Recommendation and Order was mailed to you to serve and file objections. See FED. R. Civ. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. See id. § 6(a)(1)(c). 64

Albany, New York

Paul J. Evangelista U.S. Magistrate Judge

tt