18-1273 

Sides v. Paolano

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 COURT’S 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 

“SUMMARY ORDER”). A PARTY CITING TO 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 22nd day of October, two thousand nineteen. 

PRESENT: 

JOHN M. WALKER, JR., 

SUSAN L. CARNEY, 

Circuit Judges, 

JOHN G. KOELTL, 

 District Judge.*

_________________________________________ 

DARRICK LEE SIDES, 

 Plaintiff-Appellant, 

 v. No. 18-1273 

DOCTOR PAOLANO, COXSACKIE MEDICAL UNIT,

individually and officially, DOCTOR JON MILLER,

COXSACKIE MEDICAL UNIT, individually and 

officially, P. SNYDER, NURSE COXSACKIE MEDICAL 

UNIT, individually and officially, P. SCHMIDT, NURSE 

COXSACKIE MEDICAL UNIT, individually and 

officially, 

* Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by 

designation. 
 

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 Defendants-Appellees, 

V. BALDWIN, NURSE ADMINISTRATOR COXSACKIE 

MEDICAL UNIT, individually and officially, JAMES 

WEISBERGER, LABORATORY DIRECTOR;

BIOREFERENCE LAB, INC., individually and officially,

BIOREFERENCE LABORATORIES, INC., 

 Defendants.

_________________________________________

FOR APPELLANT: VALDI LICUL (Yannick A. Grant, on the 

brief), Vladeck, Raskin & Clark, P.C., New 

York, NY. 

FOR APPELLEES: PATRICK A. WOODS, Assistant Solicitor 

General (Barbara D. Underwood, Solicitor 

General; Victor Paladino, Assistant 

Solicitor General, on the brief), for Letitia 

James, Attorney General of the State of 

New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Northern District 

of New York (D’Agostino, J.) 

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment entered on March 29, 2018, is 

VACATED and REMANDED for further proceedings consistent with this Order. 

Plaintiff-Appellant Darrick Lee Sides, an inmate at Coxsackie Correctional Facility 

(“Coxsackie”), appeals from the District Court’s grant of summary judgment in Defendants’ 

favor on his claims, brought under 42 U.S.C. § 1983, alleging deliberate indifference to his 

serious medical needs in violation of his Eighth Amendment rights. Sides contends that, in 

August and September of 2012, he was denied adequate medical care with respect to his 

anemia and hemorrhoid condition. It is undisputed that he filed his complaint no earlier than 

October 1, 2015, and that claims brought under Section 1983 and filed in New York are 

subject to a three-year statute of limitations. Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir. 

2015). We assume the parties’ familiarity with the underlying facts, procedural history, and 
 

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arguments on appeal, to which we refer only as necessary to explain our decision to vacate 

the judgment of the District Court and remand for further proceedings consistent with this 

order. 

We review de novo an order granting summary judgment under Rule 56, construing all 

record evidence in the light most favorable to the non-moving party. Willey v. Kirkpatrick, 801 

F.3d 51, 62 (2d Cir. 2015). We will affirm an order granting summary judgment only if “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). 

Section 1983 claims brought in New York ordinarily accrue when the “plaintiff 

knows or has reason to know of the injury” on which his claim is based. Milan, 808 F.3d at 

963. The continuing violation doctrine, however, creates an “exception to the normal knewor-should-have-known accrual date.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 

2009). That doctrine “can apply when a prisoner challenges a series of acts that together 

comprise an Eighth Amendment claim of deliberate indifference to serious medical needs,” 

but it may be invoked only on a showing “both [of] the existence of an ongoing policy of 

deliberate indifference to his or her serious medical needs and some non-time-barred acts 

taken in the furtherance of that policy.” Id. at 182 (alterations omitted). 

On appeal, Sides does not dispute that he was aware of his injury during August 

2012, when he filed a grievance concerning his medical condition and purportedly 

substandard care. He further alleges actions taken in violation of his rights occurred in 

September 2012, when, according to his deposition testimony, he believed that his treatment 

was “unreasonabl[y] delay[ed].” App’x 139-140. The “last [...] act” of deliberate indifference, 

Shomo, 579 F.3d at 181, occurred no later than September 28, 2012, when Sides was sent to 

Albany Medical Center for a colonoscopy and hemorrhoidectomy. At that point, he was no 

longer in Defendants’ care, and he does not allege otherwise. The continuing violation 

doctrine does not extend the accrual date of the plaintiff’s claim beyond that date. 

Accordingly, the three-year limitations period began to run no later than September 28, 

2012. 
 

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As to when Sides filed his complaint: Under the prison mailbox rule, a pro se

prisoner’s complaint is deemed filed upon its delivery to prison authorities for transmittal to 

the district court. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993). Sides testified that he 

forwarded his complaint to authorities for mailing in “early October” 2015. App’x 135. Since 

this was more than three years after the limitations period began to run it was untimely, 

unless equitable tolling applies. See Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). 

Sides asserts that he is entitled to equitable tolling to account for the eight days 

between September 21, 2015, when he requested the prison provide a notary to assist him in 

finalizing his complaint, and September 29, 2015, when he received the requested assistance. 

Equitable tolling applies “only in rare and exceptional circumstances, where . . . 

extraordinary circumstances prevented a party from timely performing a required act, and . . . 

the party acted with reasonable diligence throughout the period he sought to toll.” Walker, 

430 F.3d at 564 (brackets, alterations, and internal quotation marks omitted). The District 

Court considered whether Sides’s allegations of delayed access to his medical records 

justified tolling, pressed by him in that court, and answered that question in the negative. 

Sides v. Paolano, No. 915-CV-1203(MAD)(CFH), 2018 WL 1578161, at *4 (N.D.N.Y. Mar. 

29, 2018). Sides does not appeal that ruling. The District Court has not yet ruled, however, 

on the argument that Sides emphasizes on appeal: whether Sides’s inability to access notary 

services during the eight days between September 21 and 29 entitles him to equitable tolling.1

Appellant’s Reply at 8-10. He alleges that a pro se handbook and a prisoner manual 

counseled (perhaps erroneously) that complaints be notarized; and it is true that complaints 

1 The District Court briefly considered this argument in its opinion granting Sides’s in forma pauperis

application. There, the court noted that: 

On initial review, the court is required to screen the complaint and dismiss 

frivolous claims. Plaintiff claims that he attempted to obtain a notary on 

September 21, 2015 but that the services were delayed by the facility until 

September 29, 2015. At this early stage, plaintiff’s claims do not appear to be 

time barred. 

App’x 49. In its order granting appellees’ motion for summary judgment, however, the court did not address 

whether Sides’s inability to access notary services entitled him to equitable tolling. 
 

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seeking preliminary injunctive relief (as Sides did) ordinarily require notarizations. See, e.g., 

Northern District of New York Local Rule 7.1(a) (explaining that “all motions and 

opposition to motions require a memorandum of law, supporting affidavit, and proof of service 

on all the parties.” (emphasis added)). Because we owe special solicitude to a pro se claimant, 

and Sides appears to have filed his complaint within days of the September 28 deadline, we 

vacate the judgment of dismissal and remand the cause to allow the District Court to 

determine in the first instance whether equitable tolling should apply based on the 

circumstances of this case, including the notary’s temporary unavailability. 

Appellees raised other defenses with the District Court. These included qualified 

immunity and Sides’s failure in conflict with the Prison Litigation Reform Act, 

42 U.S.C. § 1997e(a), to exhaust administrative remedies. We invite the District Court to 

consider these and other defenses on remand, as it deems suitable. 

* * * 

 Accordingly, we VACATE the judgment of the District Court and REMAND the 

cause for further proceedings consistent herewith. 

 FOR THE COURT: 

 Catherine O’Hagan Wolfe, Clerk of Court