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 PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AN D THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SU MMARY 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 Seco nd Circuit, held at the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, on the 22 nd day of October, two thousand nineteen.

PRESENT: J OHN M. W ALKER , J R ., S USAN L. C ARNEY , Circuit Judges
, J OHN G. K OELTL , District Judge. *

_____________ _______________ _____________
D ARRICK L EE S IDES , Plaintiff-Appellant
,
v. No. 18-1273

D OCTOR P AOLANO , C OXSACKIE M EDICAL U NIT , individually and officially, D OCTOR J ON M ILLER , C OXSACKIE M EDICAL U NIT , individually and officially, P. S NYDER , N URSE C OXSACKIE M EDICAL U NIT , individually and officially, P. S CHMIDT , N URSE C OXSACKIE M EDICAL U NIT , individually and officially,

* Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by designation.2 Defendants-Appellees
,
V. B ALDWIN , N URSE A DMINISTRATOR C OXSACKIE M EDICAL U NIT , individually and officially, J AMES W EISBERGER , L ABORATORY D IRECTOR ; B IOREFERENCE L AB , I NC ., individually and officially, B IOREFERENCE L ABORATORIES , I NC ., Defendants.

_____________ _______________ _____________ FOR APPELLANT: V ALDI L ICUL (Yannick A. Grant, on the brief ), Vladeck, Raskin & Clark, P.C., New York, NY.

FOR APPELLEES: P ATRICK A. W OODS , 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 th e Northern District of New York (D’Agostino, J. )

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment ente red on March 29, 2018, is
VACATED and REMANDED for further proceedings cons istent with this Order.
Plaintiff-Appellant Darrick Lee Sides, an inmate at Coxsackie Correctional Facility (“Coxsackie”), appeals from the District Cour t’s grant of summary judgment in Defendants’ favor on his claims, brought under 42 U.S.C. § 198 3, alleging deliberate indifference to his serious medical needs in violation of his Eigh th Amendment rights. Sides contends that, in August and September of 2012, he was denied adequate medica l care with respect to his
anemia and hemorrhoid condition. It is undisputed that he file d 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, and3 arguments on appeal, to which we refer only as necessary to ex plain 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 judgme nt 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. 20 15). 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 in jury” 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-know n 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 indifferen ce 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 seriou s 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 concerni ng his medical condition and purportedly substandard care. He further alleges actions ta ken in violation of his rights occurred in September 2012, when, according to his depositi on 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 Se ptember 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 lim itations period began to run no later than September 28,
2012.4 As to when Sides filed his complain t: Under the prison mailbox rule, a pro se prisoner’s complaint is deemed filed upon its de livery 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 mai ling in “early October” 2015. App’x 135. Since this was more than three years after the limit ations 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 equita ble 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, 20 15, 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 th roughout the period he sought to toll.” Walker
, 430 F.3d at 564 (brackets, alterations, and in ternal quotation marks omitted). The District Court considered whether Sides’s allegations of delayed access to his medical records justified tolling, pressed by hi m 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 Septem ber 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 require d 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 th e facility until September 29, 2015. At this early stage, pl aintiff’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 serv ices entitled him to equitable tolling.5 seeking preliminary injunctive relief (as Si des 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 Se ptember 28 deadline, we vacate the judgment of dismissal and remand the cause to allow the District Court to
determine in the first instance whether e quitable 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