Doe et al v. State Of New York et al
Filing
102
MEMORANDUM & ORDER: Defendants' 95 motion to dismiss the Third Amended Complaint is denied in part and granted in part. Plaintiff has sufficiently alleged the plausibility of the claim that there was such a Hepatitis policy, as well as the personal involvement of Governor Pataki. However, plaintiff's claims against Dr. Curtin and Dr. O'Connell are dismissed without prejudice for failure to allege personal involvement under Section 1983, and plaintiff's claims against Acting Commissioner Annucci, Dr. Koenigsmann, Dr. Augustin, and Dr. Sheikh are barred by the statute of limitations. Ordered by Judge Raymond J. Dearie on 3/13/2015. (Chee, Alvin)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------- x
K. DOE,
Plaintiff,
- against -
MEMORANDUM & ORDER
10 CV 1792 (RJD) (VVP)
STATE OF NEW YORK, et al.,
Defendants.
-------------------------------------------------------- x
DEARIE, District Judge
The claims brought by plaintiff, K. Doe, arise from the alleged creation and
implementation-by high-ranking members of the New York State government-of a policy to
withhold from state prisoners their positive Hepatitis status and deny treatment as a cost-saving
measure. PlaintiffK. Doe alleges that he contracted Hepatitis while incarcerated at various New
York state correctional facilities. As a result of defendants' policy, plaintiff alleges that the
defendants never informed, counseled, or treated him for his Hepatitis infection, despite the
appearance of telltale symptoms of infection in his medical examinations, thereby aggravating
his symptoms and causing him to suffer from failing health. Plaintiff now brings a federal law
claim under Section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, for Eighth
Amendment medical indifference. Defendants move to dismiss the complaint in its entirety for
failure to state a claim upon which relief may be granted. For the reasons stated below, the
motion is granted in part and denied in part.
BACKGROUND
1.
K. Doe's Hepatitis Infection
The pertinent allegations follow. On or about June 6, 1976, plaintiff "K. Doe was
convicted of a felony and sentenced to thirty years' imprisonment" in New York State
correctional facilities. Third Amended
Complaint~
32, ECF Docket# 63. According to plaintiff,
he "was not infected with Hepatitis B Virus (hereinafter "HBV") or Hepatitis C Virus
(hereinafter "HCV") at the time of the pre-incarceration examination ordered by" the New York
State Department of Correctional Services ("DOCS"). 1 Id.~ 33.
During plaintiffs incarceration, he was subjected to routine physical and medical
examinations at the numerous correctional facilities at which he was held.
Id.~~
35-36. Although
initially these examinations indicated that K. Doe was negative for HBV and HCV, by
September of 1998, K. Doe alleges that his test results showed telltale symptoms of a Hepatitis
infection, such that his doctors either knew or should have known of his likelihood of infection.
Id.~
51. However, as a result of defendants' policy, K. Doe alleges that the defendants never
informed, counseled, or treated him for his Hepatitis infection. Id.
~
73.
K. Doe's physical and medical examinations were conducted by various medical staff at
the correctional facilities, to whom K. Doe refers collectively as the "Defendant Treating
Physicians." Id.~ 29. These Defendant Treating Physicians were in turn overseen by medical
supervisors at each correctional facility, who were "charged with maintaining the health of
prisoners" at their facilities and "supervising that facility's medical staff." Id.~~ 7-14. K. Doe
refers to those medical supervisors collectively as the "Defendant Medical Directors," id.~ 15,
and includes among them, inter alia: (1) defendant Jonathan Curtin, M.D. ("Dr. Curtin"),
1
Effective April I, 2011, the DOCS and the New York State Division of Parole merged to form
the New York State Department of Corrections and Community Supervision ("DOCCS").
2
medical supervisor at Bare Hill Correctional Facility, 2 id. if 9, and (2) defendant David
O'Connell, M.D., ("Dr. O'Connell"), medical supervisor at Attica Correctional Facility,3 id. if 7.
Because K. Doe was allegedly kept in the dark as to his condition, he did not discover his
illness until c. April 23, 2008, almost one year after his release from prison, when his private
physician revealed that he suffered from infections with HBV and HCV. Id.
if 74.
By that point,
the advanced stage of his infection caused K. Doe to suffer failing health. Id. ifif 76, 106.
2.
Defendants' Hepatitis Policy
Aware of the "alarming rates [of] HAV, HBV and HCV infection in the prison
population," K. Doe alleges that certain of the defendants-to whom K. Doe refers collectively
as the "Defendant Policy Makers"-"discussed methods to keep prison HCV rates under
control." Id.
if 78. These Defendant Policy Makers include defendant George Pataki ("Governor
Pataki"), former Governor of the State of New York from January 1, 1995 -December 31, 2006,
(2) defendant Brian Fischer, Commissioner ofDOCCS 4 ("Commissioner Fischer"),
(3) defendant Anthony Annucci, Executive Deputy Commissioner and Acting Commissioner of
2
K. Doe was incarcerated at Bare Hill Correctional Facility between c. April 11, 1995, and c.
March 21, 1996. Id. iii! 9, 43, 45. Prior to his transfer to Bare Hill Correctional Facility, plaintiff
alleges that his tests had revealed high levels of the enzyme Transaminase, suggesting liver
damage, id. if 40, but he tested negative for HAV, HBV, and HCV, id. if 42. Once at Bare Hill, an
unknown medical employee reviewed his medical records and "identified and indicated a
likelihood of ... cirrhosis of the liver and other liver diseases." Id. if 44. However, K. Doe
alleges that he was not informed of, counseled on, or treated for this suspected cirrhosis. Id.
3
K. Doe was incarcerated at Attica Correctional Facility between c. July 16, 1998, and c.
November 17, 1998. Id. ifif 7. 48, 52. While there, plaintiff alleges that he was subjected to an
interfacility screening assessment, including an Alanine Aminotransferase test, which revealed
an elevated level of Alanine Aminotransferase in his bloodstream, an indication of liver disease
or infection. Id. if 50. However, K. Doe was not informed of, counseled on, or treated for these
high Alanine Aminotransferase levels. Id.
4
As stated in a memorandum and order of this Court on July 9, 2013, "defendant Fischer, having
successfully moved to dismiss all of plaintiffs claims against him with prejudice, is not properly
named as a defendant in the Third Amended Complaint and is under no obligation to answer or
other'l.rise respond thereto." K. Doe v.1'Jev.r York, 1'Jo. 10-CV-1792 (PJD) ('/VP), slip op. at 2
(E.D.N.Y. July 9, 2013) [hereinafter K. Doe II].
3
DOCCS ("Acting Commissioner Annucci"), and (4) defendant Carl Koenigsmann, M.D. ("Dr.
Koenigsmann"), Deputy Commissioner and Chief Medical Officer ofDOCCS. Id. iii! 2-6.
As a result of these discussions, K. Doe alleges that the Defendant Policy Makers "in or
about 1994, affirmatively decided to ignore staggering [Hepatitis] infection rates to save money
because of the enormous costs of treating these inmates." Id. if 83. The Defendant Policy Makers
subsequently initiated and enforced, or allowed to continue, a policy that "allowed infected
prisoners to remain anonymous with their infections undisclosed and hidden, treating only those
who discovered their affliction through obvious symptoms, or those who discovered their
ailments as a result of their affirmative request to be tested." Id. if 89. Defendants are alleged to
have continued this policy until 2005, when the Second Circuit held that constitutional claims for
medical mistreatment could arise from a separate, publicly known New York State correctional
facility Hepatitis guideline that denied HCV treatment to prisoners up for parole within the next
twelve months. Id.
if 83; see also McKenna v. Wright, 386 F.3d 432, 437-38 (2d Cir. 2004)).
PROCEDURAL HISTORY
This action was originally brought on behalf of K. Doe and R. Doe, a woman who was
infected with Hepatitis by K. Doe through consensual sex upon his release from prison.
Complaint, ECF Docket# I
if 19. Plaintiff filed his original complaint (the "Original
Complaint") almost two years after discovering his Hepatitis, on April 22, 2010. Id. The Original
Complaint named four defendants:(!) the state of New York, (2) David Patterson, in his
capacity as Governor of the State of New York, (3) DOCS, and (4) Brian Fischer, in his capacity
as Commissioner of DOCS. Id. The first amended complaint (the "First Amended Complaint")
was filed six months later and included numerous John Doe medical directors and treating
physicians for the various correctional facilitates at which plaintiff was incarcerated. ECF
4
Docket# 14. Days later, on October 18, 2010, the plaintiff moved to serve the John Doe
defendants via substituted service, noting that although he had "diligently sought medical records
... that would clearly indicate the name of the treating physician[s]," he had not yet received
those records. ECF Docket# 15. On October 21, 2010, Magistrate Judge Viktor V. Pohorelsky
denied this motion but assured the plaintiff that he would "be given adequate time to effectuate
service once the medical records [we]re produced which identif[ied] the names of the various
· personnel ... named as John and Jane Does." ECF Docket# 17. Towards the end of2010,
plaintiff was provided with the medical records from his incarceration and, as noted in a meeting
with Magistrate Judge Pohorelsky on December 22, 2010, reviewed the "medical records in an
effort to identify the specific individuals." ECF Docket# 19. Meanwhile, the defendants were
instructed, "to the extent possible, [to] assist in providing the names of persons whom the
medical records disclose as providing care but whose identities cannot be ascertained due to
illegibility or other similar reasons." Id. The parties continued to meet with Magistrate Judge
Pohoreslky and work to identify the remaining defendants, ECF Docket# 20, until March 4,
2011, about a month and a half before the statute of limitations ran, when plaintiff filed the
second amended complaint (the "Second Amended Complaint"), removing all of the John Does
and adding named parties, ECF Docket # 21.
On August 23, 2011, various defendants named in the Second Amended Complaint
moved to dismiss the complaint on the grounds that, inter alia: (1) venue was improper, (2) the
Court lacked subject matter jurisdiction over plaintiffs' claims against the State of New York,
DOCS, and state officials in their official capacities, (3) plaintiffs had not sufficiently alleged the
plausibility of the claim that there was such a Hepatitis policy, and (4) plaintiffs had not
sufficiently plead the personal involvement of the defendants. ECF Docket# 37-38.
5
In a memorandum and order dated September 27, 2012, this Court dismissed all of the
defendants, with the exception of Governor Pataki. K. Doe v. New York, No. 1O-CV-1792 (RJD)
(VVP), 2012 WL 4503409 (E.D.N.Y. Sept. 28, 2012) [hereinafter K. Doe I]. In so doing, this
Court held that, inter alia: (1) plaintiffs had sufficiently alleged the plausibility of the claim that
there was such a Hepatitis policy, id. at * 11, and (2) the claims against Governor Pataki could
proceed based on his alleged role in creating the Hepatitis policy, id. at* 12.
After a few extensions, plaintiff filed the Third Amended Complaint late, on May 24,
2013. ECF Docket# 63. Nonetheless, this Court accepted the Third Amended Complaint for
filing and designated it as the operative complaint in this action. K. Doe II, at 1-2. Acting
Commissioner Annucci and Dr. Koenigsmann were served with the Third Amended Complaint
on August 19, 2013. Two unnamed defendants, a "Dr. Augustin" and "Dr. Sheikh," were served
on August 18, 2013, and August 22, 2013, respectively.
On November 27, 2012, defendants again moved under Rule 12(b)(6) to dismiss the
Third Amended Complaint in its entirety, arguing that (1) plaintiff has not sufficiently alleged
the plausibility of the claim that there was such a Hepatitis policy, (2) plaintiff has not
sufficiently plead the personal involvement of Governor Pataki, Dr. Curtin, and Dr. O'Connell,
and (3) plaintiffs claims against Acting Commissioner Annucci, Dr. Koenigsmann, Dr.
Augustin, and Dr. Sheikh are barred by the statute of limitations.
DISCUSSION
1.
Motion to Dismiss - Failure to State a Claim
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
complaint must plead "enough facts to state a claim to relief that is plausible on its face." Brown
v. Daikin Am. Inc., 756 F.3d 219, 225 (2d Cir. 2014) (quoting Bell Atl. Com. v. Twombly, 550
6
U.S. 544, 570 (2007)). In reviewing the complaint, this Court "accept[s] all well-pleaded
allegations in the complaint as true [and] draw[s] all reasonable inferences in the plaintiffs
favor." Chabad Lubavitch of Litchfield Cnty, Inc. v. Litchfield Historic Dist. Com'n, 768 F.3d
183, 191 (2d Cir. 2014) (second alteration in original). "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Igbal, 556 U.S. 662, 678 (2009).
However, where plaintiffs "have not nudged their claims across the line from conceivable to
plausible, their complaint must be dismissed." Twombly, 550 U.S. at 570.
In order to succeed in a claim under Section 1983, "a plaintiff must show that (1) the
conduct complained of was committed by a person acting under color of state law, and (2) this
conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws
of the United States." Greenwich Citizens Comm., Inc. v. Cntys. of Warren & Wash. Indus. Dev.
Agency, 77 F.3d 26, 29-30 (2d Cir. 1996) (internal quotations omitted) (quoting Parratt v.
Taylor, 451 U.S. 527, 535 (1981)). "The Cruel and Unusual Punishments Clause of the Eighth
Amendment imposes a duty upon prison officials to ensure that imnates receive adequate
medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006) (citing Farmer v. Brennan,
511 U.S. 825, 832, 844 (1994)). To state a claim of medical mistreatment under Section 1983, "a
prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to
serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The deliberate indifference
standard requires both an objective element, that "the alleged deprivation of adequate medical
care [is] 'sufficiently serious,"' and a subjective element, that "the charged official ... act[s]
with a sufficiently culpable state of mind." Salahuddin, 467 F.3d at 279-280 (finding a lapse
sufficiently serious where a prison official postponed treatment for an inmate's HCV for five
7
months, but concluding that the prison official lacked a sufficiently culpable state of mind,
because he was not aware of the risk to the inmate's health).
Additionally, "supervisor liability in a [Section] 1983 claim depends on a showing of
some personal responsibility, and cannot rest on respondeat superior." Hernandez v. Keane, 341
F.3d 137, 144 (2d Cir. 2003). Prior to Igbal, the Second Circuit held that this supervisor liability
could be shown through:
(!) actual direct participation in the constitutional violation,
(2) failure to remedy a wrong after being informed through a report or appeal,
(3) creation of a policy or custom that sanctioned conduct amounting to a
constitutional violation, or allowing such a policy or custom to continue,
(4) grossly negligent supervision of subordinates who committed a violation, or
(5) failure to act on information indicating that unconstitutional acts were
occurnng.
Id. at 145 (citing Colon v. Coughlin 58 F.3d 865, 873 (2d Cir.1995)). Importantly, for the third
Colon avenue of supervisory liability, "it is not sufficient that such a policy or practice continued
to exist during defendant's tenure; defendant must have known of it as well." K & A Radiologic
Tech. Services, Inc. v. Comm'r of the Dep't. of Health of the State ofNew York, 189 F.3d 273,
278 (2d Cir. 1999); see also McKenna, 386 F.3d at 437 (finding sufficient personal involvement
for medical defendants, all "alleged to have participated in the denial of treatment," as well as
non-medical defendant superintendents, alleged to have known of the denial of treatment through
grievances and "adequately alleged to have had responsibility for enforcing or allowing the
continuation of the challenged policies that resulted in denial of [the inmate]'s treatment");
Brock v. Wright, 315 F.3d 158, 165-66 (2d Cir. 2003) ("While liability may not be established
against a defendant simply because that defendant was a 'policy maker' at the time
unconstitutional acts were committed, ... where unconstitutional acts are the result of a policy
promulgated by the defendant, a valid [Section] 1983 action may lie.") (emphasis in original).
8
In Iqbal, the Supreme Court held that "[b]ecause vicarious liability is inapplicable
to ... [S]ection 1983 suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions, has violated the
Constitution." 556 U.S. at 676. Accordingly, some courts in this Circuit have found that
Igbal abrogated all of the Colon categories except for the first and either all or part of the
third.
See,~,
Bellamy v. Mount Vernon Hosp., No. 07-CV-1801, 2009 WL 1835939, at
*6 (S.D.N.Y. June 26, 2009) (Scheindlin, J.), affd, 387 Fed.Appx. 55 (2d Cir. 2010)
("Only the first and part of the third Colon categories pass Igbal' s muster-a supervisor
is only held liable ifthat supervisor participates directly in the alleged constitutional
violation or if that supervisor creates a policy or custom under which unconstitutional
practices occurred.") (emphasis added); cf. Butler v. Suffolk Cnty., 289 F.R.D. 80, 94
(E.D.N.Y. 2013) (Seybert, J.) ("[A] supervisory official can ... be held liable ifhe
'participated directly in the alleged constitutional violation [or] ... created a policy or
custom under which the unconstitutional practices occurred, or allowed the continuance
of such a policy or custom."') (emphasis added) (second alteration in original). Following
this line of reasoning, in K. Doe I, this Court agreed that "only the First and Third of the
Colon avenues of supervisory liability ... survive lg bal," but did not reach whether the
Third Colon avenue of supervisory liability survived in whole or in part. 2012 WL
4503409, at *8 n.3.
Subsequent case law in this Circuit has generated further confusion on the issue,
however, with the majority of courts emphasizing that, "neither the Second Circuit nor
the Supreme Court has endorsed this reading oflgbal," and therefore finding that "unless
or until the Second Circuit or Supreme Court rule otherwise, ... [all five of] the Colon
9
factors 'still apply as long as they are consistent with the requirements applicable to the
particular constitutional provision alleged to have been violated."' Cano v. Citv of New
York, -- F. Supp. 3d--, No. 13-CV-3341, 2014 WL 4494169, at *10 (E.D.N.Y. Sept. 12,
2014) (Kuntz, II, J.) (quoting Phillip v. Schriro, No. 12-CV-8349, 2014 WL 4184816, at
*4 (S.D.N.Y. Aug. 22, 2014) (Abrams, J.)); cf. Turkmen v. Ashcroft, 915 F. Supp. 2d
314, 336 (E.D.N.Y. 2013) (Gleeson, J.) ("What is different after Igbal is that the guiding
question is no longer simply whether a plaintiff has pleaded personal involvement
under Colon but whether a plaintiff has pleaded each of the elements of the constitutional
tort alleged.").
This Court remains skeptical that all five of the Colon factors survive under lg bal.
However, unless or until the Second Circuit or Supreme Court rule otherwise, this Court
finds that at least the first and third Colon avenue for supervisory liability survive in their
•
entirety.
5
Just as in K. Doe I, therefore, the fate of plaintiffs Section 1983 claim, "hinges first on
whether the Court finds that the creation and implementation of the alleged statewide policy
regarding inmates with Hepatitis is plausible, and second on whether plaintiffs adequately
5
In determining that the third Colon factor survives in its entirety, this Court is persuaded by the
reasoning of Judge Gleeson in Turkmen that "lg bal removed supervisory liability from Bivens
claims," but "the demise of supervisory liability in Bivens claims does not mean that the forms
of personal involvement under Colon can never constitute a basis for direct liability." 915 F.
Supp. 2d at 336 (emphasis in original). Rather, Judge Gleeson held that "[i]f a defendant's
personal involvement under Colon satisfies the elements of a constitutional tort, that involvement
may trigger liability." This reasoning is less persuasive for some of the more passive Colon
factors, such as two and five, both of which involve a failure to act. However, this Court sees no
reason why a hypothetical complaint could not plausibly allege that a government official took
such a..11 active role in allo¥1ing the continua..11ce of a..11 improper policy or custom so as to meet the
personal involvement requirement for supervisory liability under Section 1983, post-fobal.
10
alleged that the defendants were personally involved in either creating the policy or allowing it to
continue. The Court will address both issues in turn." 2012 WL 4503409, at *9.
A. Plausibility of the Claim that there was Such a Hepatitis Policy
Defendants argue that plaintiffK. Doe has not sufficiently alleged the plausibility of the
claim that the purported Hepatitis policy existed. Although this Court previously rejected this
argument, defendants claim that law of the case does not bar this Court from hearing this
argument because the Hepatitis policy, as alleged in the Second Amended Complaint, differs
substantially from the Hepatitis policy, as alleged in the Third Amended Complaint.
Under the "law of the case" doctrine, "when a court decides upon a rule of law, that
decision should continue to govern the same issues in subsequent stages in the same case."
Arizona v. California, 460 U.S. 605, 618 (1983); see also United States v. Carr, 557 F.3d 93, 102
(2d Cir. 2009). "Law of the case directs a court's discretion, it does not limit the tribunal's
power." Id.; see also Rezzonico v. H & R Block, Inc., 182 F.3d 144, 149 (2d Cir. 1999) ("The
doctrine expresses, in shorthand fashion, a practice of courts generally not to reconsider that
which has already been decided. But it does not purport to be a legally binding limitation on the
court's authority to reconsider such matters."). However, "[a] court's reconsideration of its own
earlier decision in a case" requires "compelling circumstances, consisting principally of (1) an
intervening change in controlling law, (2) new evidence, or (3) the need to correct a clear error of
law or to prevent manifest injustice." Carr, 557 F.3d at 102. For example, a court in this Circuit
has found that the law of the case doctrine did not control where an amended complaint,
regarding alleged interference by the DOCS with plaintiff prisoner's legal mail, contained
"materially different and more detailed claims" than the original complaint. See Bellezza v.
11
Holland, No. 09-CV-8434 (RWS), 2011 U.S. Dist. LEXIS 76030, at *6 (S.D.N.Y. July 11,
2011).
In the Second Amended Complaint, the plaintiff alleged merely that "testing" during
"routine physical and medical examinations" at the correctional facilities, "revealed to DOCS
that K. Doe was infected by HCV," but "DOCS did not inform K. Doe of his HCV infection and
did not counsel or treat" him for it. Second Amended Complaint if 26 (emphasis added). In the
Third Amended Complaint, the plaintiff alleged with greater detail the circumstances
surrounding the correctional facilities' neglect to treat his Hepatitis infections, explaining that he
was subjected to a variety of tests during his examinations, the results of which should have put
the doctors on notice that he was infected with HBV and HCV, and yet the doctors never advised
him of this infection. Third Amended Complaint ifif 50-73. Defendants therefore argue that the
Hepatitis policy, as alleged in the Second Amended Complaint, differs substantially from the
Hepatitis policy, as alleged in the Third Amended Complaint.
Defendants characterize the difference between these two sets of allegations as such:
(I) the allegations in the Second Amended Complaint suggested K. Doe had been diagnosed
with HBV and HCV and that, despite this diagnosis, the doctors failed to inform, counsel, or
treat him for these infections, whereas (2) the allegations in the Third Amended Complaint
weaken that claim, by specifying that the doctors merely knew or should have known, from
telltale symptoms in K. Doe's test results, that he was infected with HBV and HCV and that,
despite this knowledge, the doctors failed to inform, counsel, or treat him for these infections.
Defendants' argument, however, is based on a false distinction. Black's Law Dictionary
defines "diagnosis" as "[t]he determination of a medical condition (such as a disease) by physical
examination or by study of its symptoms" or "the result of such an examination or study."
12
Black's Law Dictionary 548 (I 0th ed. 2014) (emphasis added). Therefore, although a specific
test result indicating a Hepatitis infection would certainly assure a doctor that their diagnosis of
Hepatitis was correct, according to the word's very definition, clear indicia of a Hepatitis
infection in the form of telltale symptoms could also serve as the basis for a diagnosis.
Therefore, this Court is not convinced that the difference between the Hepatitis policy, as
alleged in the Second Amended Complaint, and the Hepatitis policy, as alleged in the Third
Amended Complaint, is compelling enough to warrant a revisiting of the plausibility of the claim
that there was such a Hepatitis policy. However, even if this Court exercised its discretion to
review the plausibility issue, this Court's decision remains the same.
Defendants argue that the alleged failure of individual doctors to inform, counsel, or treat
K. Doe for the Hepatitis infections suggested by his test results does not lead to the conclusion
that Governor Pataki instituted a state-wide policy whereby inmates would be left intentionally
in the dark as to their Hepatitis status. First of all, this characterization of the Hepatitis policy is
overly narrow. Plaintiff does not allege that Governor Pataki, alone, instituted the Hepatitis
policy. Rather, he states that the Defendant Policy Makers, as a group, "decided to ignore" the
Hepatitis infection rates in the New York State correctional facilities, in order to "save money"
on treatment of inmates, a decision which then trickled down into the medical centers at the
correctional facilities. Id. ii 83.
Second, the defendants' emphasis on the difference between a doctor failing to share an
affirmative Hepatitis diagnosis and a doctor failing to investigate further when a prisoner
presented with clear indicia of infection but had not been tested turns more on the mens rea of
the doctors who knew or should have known about K. Doe's Hepatitis infection than it does on
the plausibility of the claim that there was a Hepatitis policy that "allowed infected prisoners to
13
remain anonymous with their infections undisclosed and hidden, treating only those who
discovered their infection through obvious symptoms, or those who discovered their ailments as
a result of their affirmative request to be tested." Id. if 89. In fact, if such a policy did exist, it
seems clear to this Court that the policy would both discourage doctors from sharing an
affirmative diagnosis and from investigating further, without a specific request from the prisoner.
Finally, as stated in K. Doe I, "courts in this Circuit have repeatedly declined to dismiss
allegations concerning similar instances of failing to inform inmates of their Hepatitis diagnosis
over long periods of time, including pursuant to policies nearly identical to those alleged by
plaintiff[] in this case." 2012 WL 4503409, at* 11 (collecting cases). This Court does not find
defendants' parsing of the levels of diagnostic certainty to be a convincing distinction from that
precedent.
Accordingly, the Court rejects defendants' challenge to the plausibility of the claim that
there was such a Hepatitis policy.
B. Personal Involvement of Defendants
Defendants further argue that plaintiff K. Doe has not sufficiently plead the personal
involvement of Governor Pataki, Dr. Curtin, and Dr. O'Connell.
i. Governor Pataki
Defendants argue that plaintiff has not sufficiently alleged the requisite personal
involvement for the supervisor liability of Governor Pataki because the Third Amended
Complaint claims that the Hepatitis policy was created "in or about 1994," if 83, but states that
Governor Pataki did not take office until January 1, 1995, if 2. PlaintiffK. Doe counters in two
parts, arguing that: (I) this Court decided that Governor Pataki's personal involvement was
sufficiently alleged in K. Doe I and law of the case bars reconsideration ofthis issue; and
14
(2) even ifthe Court were to revisit its decision on Governor Pataki's personal involvement,
(a) the Third Amended Complaint sufficiently alleges that Governor Pataki participated in the
creation of the Hepatitis policy, because the language "in or about 1994" includes 1995, or, in
the alternative (b) the Third Amended Complaint sufficiently alleges that Governor Pataki
allowed the continuance of the Hepatitis policy.
Defendants, in turn, argue that: (1) law of the case does not bar the Court from
reconsideration because, in K. Doe I, this Court found that the claims against Governor Pataki
could proceed based on his alleged role in creating the Hepatitis policy, whereas the Court is
now being asked to find that plaintiff plead sufficient personal involvement for Governor
Pataki's alleged role in allowing the continuance of the Hepatitis policy; and (2) the Third
Amended Complaint does not sufficiently allege that Governor Pataki was even aware of the
existence of the Hepatitis policy, much less that he was personally involved in allowing the
policy to continue.
As an initial matter, this Court is not sympathetic to defendants' claims that
plaintiffs inclusion of the timing of Governor Pataki' s term of office in the Third
Amended Complaint constitutes compelling new evidence sufficient for this Court to
exercise its discretion to reconsider its earlier decision that plaintiff sufficiently alleged
Governor Pataki's personal involvement in the creation of the Hepatitis policy. The
assertion that the Hepatitis policy was created "in or about 1994" was included in the
Second Amended Complaint,'\[ 30, and the timing of Governor Pataki's term of office
was easily available to the defendants at the time they briefed their motion to dismiss that
complaint in K. Doe I. Indeed, the Court already dismissed two defendants in this case
because the timing of their terms of office made it implausible that they created or
15
participated in the continuance of the Hepatitis policy, despite the fact that their terms of
office were not alleged in the operative complaint. See K. Doe I, 2012 WL 4503409, at
*9 (dismissing claims against Governor Cuomo and Commissioner Fischer).
However, even if this Court exercised its discretion to review Governor Pataki's personal
involvement, this Court's decision remains the same, for two reasons. First, this Court rejects
defendant's contention that the Third Amended Complaint's unartful use of"in or about 1994"
prohibits this Court from finding that Governor Pataki was sufficiently alleged to have been
involved in the creation of the Hepatitis policy. As the complaint states, Governor Pataki took
office on January I, 1995. Third Amended
Complaint~
2. Certainly, it does not distort the
English language to find that "in or about 1994" encompasses the first few days or even months
of 1995.
Second, even if Governor Pataki was not involved in the creation of the Hepatitis policy,
plaintiff has alleged that the Defendant Policy Makers held meetings to discuss "methods to keep
prison HCV rates under control," id.
~
78, and "discussed the price of mass treatment and
preventative measures in the prison system" in "various meetings and memoranda between 1993
and 1995," id.~ 79. Accepting these allegations as true, it is certainly plausible that Governor
Pataki was advised of the Hepatitis policy in one of these meetings and, agreeing with its cost
benefit analysis, decided to allow the continuance of the policy.
See,~,
K & A Radiologic
Tech. Services, 189 F.3d at 278; McKenna, 386 F.3d at 437; Brock, 315 F.3d at 165-66.
Therefore, plaintiffs claims against Governor Pataki in his individual capacity rriay
proceed, for the moment at least, based on his alleged role in creating (or allowing the
continuance of) the Hepatitis policy.
16
n. Dr. Curtin and Dr. 0' Connell
Defendants next argue that plaintiff has not sufficiently alleged the personal involvement
for the supervisor liability of Dr. Curtin and Dr. O'Connell because the Third Amended
Complaint is devoid of allegations that these doctors were somehow involved in the creation or
implementation of a policy to withhold from plaintiff his Hepatitis infection status, as well as any
allegation that plaintiff was even diagnosed with Hepatitis while under these doctors' medical
supervision.
As discussed above, the defendants' emphasis on the difference between a doctor failing
to share an affirmative Hepatitis diagnosis and a doctor failing to investigate further when a
prisoner presented with clear indicia of infection but had not been tested is not relevant here.
Therefore, this Court does not find it lethal to K. Doe's claims against Dr. Curtin and Dr.
O'Connell that he was never affirmatively diagnosed with Hepatitis while incarcerated at their
correctional facilities.
However, defendants are correct that neither doctor is alleged to have treated K. Doe
directly. Instead, each is alleged to have been the "medical supervisor charged with maintaining
the health of prisoners of [their respective correctional facilities] and supervising that facility's
medical staff." Id.
~~
7, 9. And though this Court sees reason in plaintiffs argument that the
implementation of the Hepatitis policy alleged in this case at correctional facilities would pass to
the treating physicians through the medical supervisors at each facility, this Court agrees that the
Third Amended Complaint is devoid of allegations that Dr. Curtin and Dr. O'Connell were
personally involved in the implementation of any such policy.
During his incarceration at each of the two doctors' correctional facilities, plaintiff has
alleged at least some facts that would suggest that he presented symptoms that indicated serious
17
liver issues, including, possibly, Hepatitis, and the treating physicians at those correctional
facilities failed in any way to investigate further or inform plaintiff of the issue. Specifically,
plaintiff alleges that while he was incarcerated at Dr. Curtin's correctional facility, Bare Hill, an
unknown medical employee reviewed his medical records and "identified and indicated a
likelihood of ... cirrhosis of the liver and other liver diseases." Id. if 44. However, K. Doe
alleges that he was not informed of, counseled on, or treated for this suspected cirrhosis. Id.
Additionally, Plaintiff alleges that while he was incarcerated at Dr. O'Connell's correctional
facility, Attica, he was subjected to an interfacility screening assessment, including an Alanine
Aminotransferase test, which revealed an elevated level of Alanine Aminotransferase in his
bloodstream, an indication of liver disease or infection. Id.
if 50. Again, K. Doe alleges that he
was not informed of, counseled on, or treated for these high Alanine Aminotransferase levels. Id.
However, these allegations go to the personal involvement of the treating physicians that
Dr. Curtin and Dr. O'Connell supervised. The allegations in the Third Amended Complaint that
Dr. Curtin and Dr. O'Connell, in their role as medical supervisors, indifferently or intentionally
enforced the Hepatitis policy at their facilities, is conclusory. Id.
if 86. PlaintiffK. Doe does not
identify with any particularity that Dr. Curtin and Dr. O'Connell personally knew about the
Hepatitis policy, or encouraged its implementation at their correctional facilities, much less that
they were aware ofK. Doe's symptoms and were deliberately indifferent to his medical
needs.
See,~,
K & A Radiologic Tech. Services, 189 F.3d at 278 ("For the requisite personal
involvement to be found, ... it is not sufficient that such a policy or practice continued to exist
during defendant's tenure; defendant must have known of it as well.") (emphasis added); see also,
McKenna, 386 F.3d at 437 (finding sufficient personal involvement for medical defendants, all
"alleged to have participated in the denial of treatment," as well as non-medical defendant
18
superintendents, alleged to have known of the denial of treatment through grievances and
"adequately alleged to have had responsibility for enforcing or allowing the continuation of the
challenged policies that resulted in denial of [the imnate]'s treatment"). If these allegations were
sufficient, it could create the possibility of Section 1983 liability for prison medical supervisors
any time there was a failure to diagnose an imnate. "That result would defeat the Second
Circuit's strict requirement of personal involvement as a prerequisite for [Section]
1983 liability." Johnson v. Abate, No. 93-CV-1134 (JG), 1999 WL 1215560, at *5 (E.D.N.Y.
Dec. 2, 1999) (citing Colon, 58 F.3d at 874 ("The bare fact that [defendant] occupies a high
position in the New York prison hierarchy is insufficient to sustain [plaintiffs] claim.")).
Therefore, plaintiffs claims against Dr. Curtin and Dr. O'Connell are dismissed for
failure to adequately allege personal involvement under Section 1983.
2.
Statute of Limitations - Relation Back
Finally, defendants argue that the claims against Acting Commissioner Annucci, Dr.
Koenigsmann, Dr. Augustin, and Dr. Sheikh (together, the "Newly-Named Defendants"), are
barred by the statute of limitations.
"The statute oflimitations for claims brought under Section 1983 is governed by state
law, and in this case is the three-year period for personal injury actions under New York State
law." Shomo v. Citv of New York, 579 F.3d 176, 181 (2d Cir. 2009) (applying three year statute
of limitations to an Eighth Amendment claim alleging a policy of deliberate indifference to
serious medical needs); see also Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Plaintiff
alleges that he first learned that he suffered from HBV and HCV from his private physician on or
19
about April 23, 2008. 6 Third Amended Complaint if 74. Therefore, the statute oflimitations ran
on April 23, 2011. All of the Newly-Named Defendants were named as John or Jane Doe
defendants in the earlier iterations of the complaint and were served in August of 2013. 7
Plaintiff does not contest that the Newly-Named Defendants were served after the statute
of limitations had run but argues that the Third Amended Complaint meets the requirements for
the "relation back" of claims set forth under Rule 15(c) of the Federal Rules of Civil Procedure.
A. Plaintiff's Claims are Untimely under Federal Law
Federal Rule of Civil Procedure "15(c)(l)(C) provides the federal standard for relation
back." Hogan, 738 F.3d at 517. Under relation back, an amended complaint adding a new party
is deemed to relate back to the date of the original pleading when each of the following factors is
met:
(1) the claim must have arisen out of conduct set out in the original pleading;
(2) the party to be brought in must have received such notice that it will not be
prejudiced in maintaining its defense;
(3) that party should have known that, but for a mistake of identity, the original
action would have been brought against it; and ...
[4] the second and third criteria are fulfilled within 120 days of the filing of the
original complaint, and ... the original complaint [was] filed within the
limitations period.
6
The date that defendants provided, March 12, 2008, was the date that K. Doe's physician
diagnosed him with chronic cirrhosis of the liver, but the physician did not inform K. Doe of his
Hepatitis infection until the following month. Third Amended Comp!. if 74.
7
Curiously, plaintiff's brief only refers to Dr. Augustin and Dr. Sheikh, when making the
relation back argument. Even more curious, however, is the fact that neither Dr. Augustin nor Dr.
Sheikh are named in the Third Amended Complaint. These doctors are apparently two of the
John or Jane Doe Defendant Medical Directors, whose identities were not known at the time the
complaint was filed. See Transcript of Oral Argument at 20-21, K. Doe v. New York, No. 10CV-1792 (E.D.N.Y. July 2, 2014), ECF Docket# 99. It is unclear how plaintiff expects this
Court to hold that relation back could apply to two defendants who are not named in the
amended pleadings. However, as discussed further below, relation back could not keep these two
doctors in this case, even if they were named in the Third Amended Complaint.
20
Id. (emphasis in original) (quoting Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (2d
Cir. 1995)). Here, the defendants argue that plaintiff cannot meet the third requirement for
relation back because "although Rule 15(c)(I )(C) explicitly allows the relation back of an
amendment due to a 'mistake' concerning the identity of the parties ... [,]the failure to identify
individual defendants when the plaintiff knows that such defendants must be named cannot be
characterized as a mistake." Id. at 517-18 (internal quotations omitted) (quoting Barrow, 66 F.3d
at 470). They are correct.
Put simply, "lack of knowledge of a John Doe defendant's name does not constitute a
'mistake of identity."' Id. at 518, (quoting Barrow, 66 F.3d at 470); see also Ceara v. Deacon, -F.Supp.3d --, No. 13-CV-6023 (K.MK), 2014 WL 6674559, at *4 (S.D.N.Y. Nov. 25, 2014)
(concluding that the plaintiffs claims did not relate back under Rule 15(c)(l)(C) because the
plaintiff was "ignorant" and not "mistaken" about the John Doe defendants' identities); Strada v.
Citv ofNew York, No. I l-CV-5735 (MKB), 2014 WL 3490306, at *10 (E.D.N.Y. July 11,
2014) (citing Hogan and explaining that "Barrow remains good law ... and precludes [the] [c]ourt
from finding that [the] [p]laintiffs failure to amend the [c]omplaint to name the individual
officers was a mistake contemplated by Rule 15(c)"). Therefore, plaintiffs claims in the Third
Amended Complaint against the Newly-Named Defendants cannot relate back to the original
pleading under Rule 15(c)(l)(C). See Hogan, 738 F.3d at 518.
B. Plaintijj"s Claims are Untimely under State Law
However, even where a plaintiffs claims do not relate back under Rule 15(c)(I )(C), the
Second Circuit has held that "Rule 15(c)(l)(A) permits an amended pleading to relate back when
'the law that provides the applicable statute of limitations allows relation back."' Id. (quoting
Fed.R.Civ.P. 15(c)(l)(A)). As stated earlier, the statute oflimitations for claims brought under
21
Section 1983 is governed by state law, and in Hogan, the Second Circuit explained that New
York state law "provides a 'more forgiving principle of relation back' in the John Doe context,
compared to the federal relation back doctrine under Rule 15(c)(l)(C)." Id. Under§ 1024 of the
New York Civil Practice Law and Rules ("CPLR"), a complaint relates back where: (1) the
plaintiff"exercise[d] due diligence, prior to the running of the statute of limitations, to identify
the defendant by name"; and (2) the plaintiff "describe[d] the John Doe party in such form as
will fairly apprise the party that [he] is the intended defendant." Id. at 519 (internal quotations
and citations omitted).
Under CPLR § 1024, due diligence "requires that a plaintiff 'show that he or she made
timely efforts to identify the correct party before the statute oflimitations expired."' Ceara, 2014
WL 6674559, at *6 (quoting Strada, 2014 WL 3490306, at *5). Here, plaintiff cannot satisfy that
due diligence requirement, as he failed to act with due diligence in identifying the John Doe
Defendants prior to the filing of the Third Amended Complaint, much less prior to the running of
the statute oflimitations. Hogan, 738 F.3d at 519; see also JCG v. Ercole, No. 11-CV-6844 (CM)
(JLC), 2014 WL 1630815, at *14 (S.D.N.Y Apr. 24, 2014) (finding lack of due diligence where,
in the three years he had to discover the unknown parties, plaintiff waited until the last minute to
submit multiple discovery requests and failed to promptly seek further discovery); Temple v.
New York Cmty. Hosp. of Brooklyn, 89 A.D.3d 926, 927-928, 933 N.Y.S.2d 321, 322 (2d Dept.
2011) (concluding that "the plaintiff failed to exercise due diligence" in part, because when the
responses to "some limited discovery demands" were "less than adequate, the plaintiff failed to
promptly seek further discovery ... and failed to properly and promptly seek assistance from the
[New York] Supreme Court"); cf. Hogan, 738 F.3d at 519 (determining that the plaintiff met first
requirement under § 1024 because he "diligently sought to identify" John Doe defendants by
22
submitting "multiple discovery requests to the Attorney General's office"); Ceara, 2014 WL
6674559, at *7 (finding due diligence requirement satisfied where plaintiff wrote to the Inspector
General, requesting the full names of the defendants, and received no response).
As discussed in more detail under "Procedural History" above, the docket reflects the
drawn out nature ofthis action. Plaintiff has amended the complaint three times since he
originally filed it in April of2010, almost two years after discovering his Hepatitis. Original
Complaint, ECF Docket# 1, First Amended Complaint, ECF Docket #14, Second Amended
Complaint, ECF Docket # 21, Third Amended Complaint, ECF Docket # 63. Throughout these
amendments, the parties were well aware of the need to identify the unknown treating physicians
and medical supervisors. On October 18, 2010, between filing the First and Second Amended
Complaints, plaintiff moved to serve the John Doe defendants via substituted service, noting that
although he had "diligently sought medical records ... that would clearly indicate the name of
the treating physician[s]," he had not yet received those records. ECF Docket# 15. On October
21, 2010, Magistrate Judge Viktor V. Pohorelsky denied this motion but assured the plaintiff that
he would "be given adequate time to effectuate service once the medical records [we]re produced
which identif[ied] the names of the various personnel ... named as John and Jane Does." ECF
Docket# 17. Towards the end of2010, plaintiff was provided with his medical records and, as
noted in a meeting with Magistrate Judge Pohorelsky on December 22, 2010, reviewed the
"medical records in an effort to identify the specific individuals." ECF Docket# 19. Meanwhile,
the defendants were instructed, "to the extent possible, [to] assist in providing the names of
persons whom the medical records disclose as providing care but whose identities [could not] be
ascertained due to illegibility or other similar reasons." Id. The parties continued to meet with
Magistrate Judge Pohoreslky and work to identify the remaining defendants, ECF Docket # 20,
23
until March 4, 2011, about a month and a half before the statute oflimitations ran, when plaintiff
filed the Second Amended Complaint, removing all of the John Does and adding some named
parties. ECF Docket # 21.
In September of2012, this Court dismissed all of the claims in the Second Amended
Complaint, except those against Governor Pataki, in his individual capacity, and gave plaintiff
thirty days to amend. K. Doe I, 2012 WL 4503409, at *12. After a few extensions, plaintiff filed
the Third Amended Complaint late, on May 24, 2013. ECF Docket# 63. The Newly-Named
Defendants, two of whom actually remain as John Does in the Third Amended Complaint, were
not served until August of 2013, almost two and a half years after the statute of limitations had
run and almost two years after plaintiff had received his medical records.
Given the above procedural history, plaintiffs arguments that he was unable to read some
of the names in the medical records and had other difficulties identifying the treating physicians
and medical supervisors therein are unavailing. If that were the case, plaintiff should have
reached out to the defendants or this Court for assistance.
See,~
Temple, 89 A.D.3d at 927-28
(concluding that "the plaintiff failed to exercise due diligence" in part, because when the
responses to "some limited discovery demands" were "less than adequate, the plaintiff failed to
promptly seek further discovery ... and failed to properly and promptly seek assistance from the
[New York] Supreme Court"). Instead, plaintiff filed the Second Amended Complaint with all
John Does removed, thereby signaling to this Court and to the defendants that the requisite
parties had been identified.
Nor is this Court persuaded of plaintiffs diligence by his claims to have written letters to
each correctional facility, addressed to the John or Jane Does he sought to identify. This claim is
only substantiated by a letter regarding the John Does one of the correctional facilities, from fall
24
of 2013, written to plaintiff in response to his sending that facility a summons and copy of the
Third Amended Complaint. See Exhibit C to Plaintiffs Memorandum of Law in Opposition to
Motion to Dismiss, K. Doe v. New York, No. 10-CV-1792 (E.D.N.Y. Dec. 23, 2013), ECF
Docket # 101-3. Even assuming that such letters were sent to the correctional facilities of all of
the John and Jane Does in the Third Amended Complaint, their delivery in mid-2013 hardly
shows diligence on the part of the plaintiff, who could easily have sent letters requesting the
identities of these unnamed defendants back in late 2010 and early 2011, once plaintiff received
a copy of his medical records. Accordingly, this Court finds that plaintiff has not met the due
diligence requirement for his claims against the Newly-Named Defendants in the Third
Amended Complaint to relate back under CPLR § 1024.
Finally, plaintiff cannot rely on New York's relation-back doctrine, set forth in CPLR
§ 203. New York courts allow claims against a new defendant to "relate back to timely filed.
pleadings," under CPLR § 203 when:
(1) the new claim arose out of the same conduct, transaction or occurrence as the
original allegations; (2) the new party is united in interest with the original
defendant, and by reason of that relationship can be charged with such notice of
the institution of the action that he will not be prejudiced in maintaining his
defense on the merits; and (3) the new party knew or should have known that, but
for a mistake as to the identity of the proper parties, the action would have been
brought against him as well.
Strada, 2014 WL 3490306, at *6 (quoting JCG, 2014 WL 1630815, at *15). "New York courts
have held, however, that a plaintiff may not add a new defendant," under CPLR § 203 "unless
'the new party knew or should have known that, but for an excusable mistake by plaintiff as to
the identity of the proper parties, the action would have been brought against him as well."'
Vasconcellos v. City of New York, No. 12-CV-8445 (CM), 2014 WL 4961441, at *8 (S.D.N.Y.
Oct. 2, 2014) (emphasis added) (quoting Malament v. Vasap Constr. Com., 285 A.D.2d 584,
25
584, 728 N.Y.S.2d 381, 381 (2d Dept. 2001)). Since, "[t]his requirement closely tracks the
federal relation-back requirement of Rule 15(c)(l)(C)," plaintiff"thus fails to satisfy the state's
corollary to that rule, as well." Id.; see also Buran v. Coupal, 87 N.Y.2d 173, 179 (1995) (noting
that§ 203 was largely modeled after Rule 15(c) of the Federal Rules of Civil Procedure).
Accordingly, because plaintiffs claims against the Newly-Named Defendants in the
Third Amended Complaint do not relate back to the original pleading under either federal or
state law, defendants' motion to dismiss on statute of limitations grounds should be granted as to
the Newly-Named Defendants.
CONCLUSION
For the reasons stated above, defendants' motion to dismiss the Third Amended
Complaint is denied in part and granted in part. Plaintiff has sufficiently alleged the plausibility
of the claim that there was such a Hepatitis policy, as well as the personal involvement of
Governor Pataki. However, plaintiff's claims against Dr. Curtin and Dr. O'Connell are dismissed
without prejudice for failure to allege personal involvement under Section 1983, and plaintiffs
claims against Acting Commissioner Annucci, Dr. Koenigsmann, Dr. Augustin, and Dr. Sheikh
are barred by the statute oflimitations.
SO ORDERED.
Dated: Brooklyn, New York
March 13, 2015
/s/ Judge Raymond J. Dearie
RAY
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