16

‐ 54

Lopez v. Annucci

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A SUMMARY

ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE

OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ʹ S L OCAL R ULE 32.1.1. W HEN CITING A

SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST CITE EITHER THE

F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION ʺ SUMMARY ORDER ʺ ). 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 9 th day of May, two thousand seventeen.

PRESENT: GUIDO CALABRESI,

DENNY CHIN,

RAYMOND J. LOHIER, JR.,

Circuit Judges

,

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

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

.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PLAINTIFF

‐ APPELLANT: MATTHEW B. BYRNE, Gravel & Shea PC,

Burlington, Vermont.‐ 2

‐ 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 plaintiff ʹ s complaint as barred by the

statute of limitations. 1 We assume the parties ʹ 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 plaintiff ʹ s claims prior to service on

defendants. 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring dismissal ʺ at any time ʺ if action fails to state a claim);

28 U.S.C. § 1915A (requiring dismissal ʺ as soon as practicable ʺ 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 General ʹ s 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).‐ 3

‐ 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 plaintiff ʹ s 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.‐ 4

‐ 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 ʺ raise[d] clear statute of

limitations issues ʺ 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.‐ 5

‐ By decision and order filed December 3, 2015, the district court dismissed

plaintiff ʹ s 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.

ʺ We review de novo a district court ʹ s 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. ʺ We accept as true all facts described in the complaint but need not accept

ʹ conclusory 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 ʺ must 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).‐ 6

‐ The continuing violation doctrine allows a plaintiff to challenge acts of

misconduct occurring outside the statute of limitations period if at least one act of the

ongoing misconduct occurred within the limitations period. Shomo v. City of N.Y.

, 579

F.3d 176, 181

‐ 82 (2d Cir. 2009). In the context of an Eighth Amendment claim of

deliberate indifference to medical needs, a plaintiff asserting ʺ a continuing violation for

statute of limitations purposes

. . . must ʹ allege both the existence of an ongoing policy

of [deliberate indifference to his or her serious medical needs] and some non

‐ time

‐

barred acts taken in furtherance of that policy. ʹʺ Id. at 182 (alteration in original)

(quoting Harris v. City of N.Y.

, 186 F.3d 243, 250 (2d Cir. 1999)). The purpose of these

requirements is to ʺ screen[] out Eighth Amendment claims that challenge discrete acts

of unconstitutional conduct or that fail to allege acts within the relevant statutory

period that are traceable to a policy of deliberate indifference. ʺ Id.

Here, the district court concluded that plaintiff ʹ s claims were barred by the

statute of limitations without assessing whether his complaint alleged a continuing

failure to monitor inmate health and provide follow

‐ up care after changes in

medication. The pro se complaint, read broadly, should have been construed as alleging

an ongoing policy of deliberate indifference to serious medical needs. See id. (describing

the first requirement under the continuing violation doctrine); Abbas

, 480 F.3d at 639

(requiring liberal construction of pro se complaints).‐ 7

‐ In addition, our cases recognize a number of grounds for equitable tolling.

See, e.g.

, Abbas

, 480 F.3d at 642 (explaining equitable tolling under New York law);

Walker v. Jastremski

, 430 F.3d 560, 564 (2d Cir. 2005) (describing when federal courts

apply equitable tolling). It appears that the district court considered only one basis for

equitable tolling, and that is plaintiff ʹ s period of hospitalization. There may, however,

be other bases for equitable tolling. In this circuit ʺ [w]e have applied equitable tolling

only in ʹ rare and exceptional circumstances, ʹ where we found that ʹ extraordinary

circumstances ʹ prevented a party from timely performing a required act, and that the

party ʹ acted with reasonable diligence throughout the period he [sought] to toll. ʹʺ

Walker

, 430 F.3d at 564 (alteration in original) (quoting Doe v. Menefee

, 391 F.3d 147, 159

(2d Cir. 2004)). Here, it does not appear that the district court considered whether such

circumstances existed.

For these reasons, we vacate the decision and judgment dismissing

plaintiff ʹ s claims and remand the matter for the district court to address the timeliness

of the claims under the continuing violation and equitable tolling doctrines.

We note that plaintiff ʹ s appeal in this case raises a host of issues,

including: (1) when plaintiff ʹ s claims accrued; (2) whether the statute of limitations was

tolled for the duration of the first lawsuit, see, e.g.

, Clifford v. Gibbs

, 298 F.3d 328, 333 (5th

Cir. 2002) (tolling for duration of federal lawsuit where complaint was dismissed

without prejudice, and for duration of subsequent administrative exhaustion); McCoy v.‐ 8

‐ Goord

, 255 F. Supp. 2d 233, 253

‐ 54 (S.D.N.Y. 2003) (raising issue of whether time spent in

federal court before dismissal would be tolled); (3) whether plaintiff should have been

permitted to reopen the first lawsuit rather than being required to commence a new

lawsuit, in light of the timing concerns; (4) when plaintiff received notice of the denial

of his administrative grievance (and when tolling for exhaustion ended); (5) the

applicability of the New York tolling statutes, including N.Y. C.P.L.R. § 205(a); and

(6) the constitutionality of New York ʹ s inmate grievance process as an administrative

remedy. We do not express a view on any of these questions, nor do we suggest that all

these issues must be resolved. But we do think it would be helpful, if it does reach the

issues, for the district court to obtain input from the State of New York and to consider

appointing counsel for plaintiff.

Accordingly, we VACATE the decision and judgment of the district court

and REMAND the matter for further proceedings consistent with this order.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk