Ellis v. Kelly et al

Filing 13

MEMORANDUM AND ORDER: For the reasons stated in the attached memorandum and order, Ellis's motions for leave to amend are denied as futile because all of his federal claims are time-barred. The Court declines to exercise supplemental jurisdictio n over Ellis's state-law claims. This action is dismissed without prejudice to continuing to pursue the state-law claims in the action which Ellis has already filed in the Supreme Court of the State of New York. The Clerk of Cou rt is directed to enter judgment in accordance with this Memorandum and Order and to close this case. The Clerk of Court shall also send a copy of the judgment and this Memorandum and Order to Ellis at the address listed for him on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 44445 (1962). Ordered by Judge Roslynn R. Mauskopf on 3/18/2019. (Taronji, Robert)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
ROBERT ELLIS,
Plaintiff,
-against-

MEMORANDUM AND ORDER
17-CV-6656 (RRM)(SJB)

RAYMOND KELLY, Commissioner of New
York City Police Department; NEW YORK CITY
POLICE DEPARTMENT; CHARLES ARNAO,
Shield # 169; PETER MANCERI, Shield #4881;
LIAM MORRIS, Shield #6779; PHIL THOMAS,
Shield # Unknown; LT. TIMOTHY MERCER; (A)
Deputy Commissioner of Pennsylvania State Police;
PENNSYLVANIA STATE POLICE; NORM J.
CRAMER, Shield # 7111; BALLIET DRUMER,
Shield # Unknown; GAIL BAILEY-WALLACE,
MD, Westchester Correctional Health Services
Department; RICHARD LAUX, PA, New York
State Department of Corrections and Community
Supervision, Auburn Correctional Facility; JOHN
DOES #1, #2, #3, #4, and #5, Auburn Correctional
Facility; Jointly, Separately, and Individually,
Respectively,
Defendants.
---------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge:
In the fall of 2017, plaintiff Robert Ellis, a New York State prison inmate, commenced
this pro se § 1983 action against 17 defendants, alleging federal constitutional and state-law
violations which occurred between 2007 and 2010. In a memorandum and order dated June 15,
2018 (the “Prior Order”) (Doc. No. 9), the Court granted Ellis’s request to proceed in forma
pauperis but dismissed the action as time-barred. Although Ellis had alleged no facts in support
of equitable tolling, the Court, in an abundance of caution, granted Ellis permission “to seek
leave to amend in order to show why the statute of limitations should not bar his … action.”
(Prior Order, p. 5).
Ellis has now filed two separate motions for leave to amend. However, as discussed
below, these submissions only serve to further establish that his claims are time-barred and do

not establish a basis for equitable tolling. Accordingly, Ellis’s motion for leave to amend is
denied and this action is dismissed.
I.

Background
On or about October 29, 2017, Ellis – then an inmate at Shawangunk Correctional

Facility – commenced this action by mailing of a copy of a verified complaint to the Clerk of
Court. That pleading (the “Complaint”) raised claims pursuant to 42 U.S.C. § 1983 against 17
defendants who, for purposes of this Memorandum and Order, can be grouped into four
categories: 1) the “NYPD Defendants,” 2) the “State Police Defendants,” 3) Dr. Bailey-Wallace,
and 4) the “Auburn Defendants.”
There are six defendants in the first category: the New York City Police Department
(“NYPD”); its former commissioner, Raymond Kelly (“Commissioner Kelly”); and four
detectives – Charles Arnao, Peter Manceri, Liam Morris, and Phil Thomas (the “NYPD
Detectives”). According to the Complaint, the NYPD Detectives used excessive force in
arresting Ellis on the morning of July 12, 2007. (Compl. ¶¶ 37–55). The Complaint alleges that
the detectives’ actions not only “constituted cruel and unusual punishment and deliberate
indifference” in violation of the Eighth and Fourteenth Amendments of the United States
Constitution but also “constituted the tort of Assault and Battery under the color of state law.”
(Id., ¶ 81). Commissioner Kelly allegedly failed to supervise and train the detectives properly.
(Id., ¶ 79). The NYPD is named as a defendant in the caption of the Complaint but is not listed
as a party in a section of the Complaint entitled “Parties, Jurisdiction and Venue.” In addition,
there are no allegations of actions or omission by the NYPD itself, separate and apart from the
actions and omissions attributed to the other five NYPD Defendants.
The second category is comprised of four defendants: the Pennsylvania State Police (the
“State Police”); a Deputy Commissioner of the State Police, Lt. Timothy Mercer; and two
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Pennsylvania State Troopers: Norm J. Cramer and Balliet Drumer (the “Troopers”). The
Complaint alleges that the Troopers witnessed the NYPD Detectives assault Ellis on July 12,
2007, but did not intervene. (Id., ¶¶ 51–52, 85). Lt. Mercer allegedly failed to supervise and
train the Troopers with respect to their duty to intervene and prevent the assault. (Id., ¶ 83). The
Complaint lists the State Police in the caption of the Complaint but – as with the NYPD – does
not include the State Police in the section of the Complaint entitled “Parties, Jurisdiction and
Venue.” In addition, there are no allegations of actions or omissions by the State Police separate
and apart from the actions and omissions attributed to the other three other State Police
Defendants.
The third category contains only one defendant: Gail Bailey-Wallace, M.D., the Medical
Director of Correctional Health Services at Westchester Medical Center in Valhalla, New York.
The Complaint alleges that in an order dated September 8, 2008, Justice Lott of the Supreme
Court of the State of New York directed that the Westchester County Department of Corrections
give Ellis an MRI. (Id., ¶ 83). Dr. Bailey-Wallace refused to obey that order, informing Justice
Lott in a letter dated October 21, 2008, that the MRI was unnecessary. (Id., ¶¶ 63–64).
The fourth category consists of six defendants employed by the New York State
Department of Corrections and Community Supervision (“DOCCS”) at Auburn Correctional
Facility (“Auburn”): a Physician’s Assistant named Richard Laux and five John Doe Defendants
(the “Doe Defendants”). The Complaint alleges that on June 30, 2009, Laux refused Ellis
medical treatment, stating that there was nothing wrong with him without even examining him.
(Id., ¶ 23). The pleading also alleges that the Doe Defendants denied Ellis’s requests for medical
treatment, including his request for an MRI, but does not allege when these actions or omissions
occurred. (Id., ¶ 91). However, in alleging that Ellis exhausted his administrative remedies, the

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Complaint alleges that Ellis complained to Auburn’s Superintendent, the facility’s Nurse
Administrator, and/or the State Commission of Corrections on July 8, 2009; October 9, 2009;
and May 7, 2010; and filed formal grievances at Auburn on July 12, 2009; October 9, 2009; and
June 7, 2010. (Id., ¶¶ 24–25, 29–30, 33–34).
The Prior Order
In its “Prior Order,” the Court dismissed all of Ellis’s claims as time-barred. The Court
noted that a three-year statute of limitations applies to § 1983 actions in New York, and that
Ellis’s claims accrued more than three years prior to the commencement of this action. Although
the Complaint did not allege any facts in support of equitable tolling, the Court nonetheless gave
Ellis 30 days in which to “seek leave to amend in order to show why the statute of limitations
should not bar his § 1983 action.” (Prior Order, p. 5). The Court advised Ellis to “include any
facts that would support that statutory or equitable tolling of the statute of limitations period.”
(Id.).
Ellis’s Motions for Leave to Amend
In response to the Prior Order, Ellis filed two distinct motions to amend. The first (Doc.
No. 10) consists of a five-page motion dated July 6, 2018; 18 exhibits; and a 14-page amended
complaint dated July 6, 2018. Ellis did not include an affidavit of service, but date stamps on
this submission reveal that the first motion was received in the Pro Se Office on July 11, 2018.
The second motion (Doc. No. 11) contains a seven-page memorandum of law dated July
13, 2018; no exhibits; and a 16-page amended complaint dated July 13, 2018. In an undated
cover letter accompanying this second motion, Ellis states that this submission was first mailed
to the Court on July 13, 2018. However, the only copy of the second motion that the Court

4

received was the one attached to the cover letter – ostensibly, a second copy of the motion –
which was not received by the Pro Se Office until July 27, 2018.
The memoranda of law included in the first and second motions to amend are nearly
identical, except in two respects. First, the second memorandum of law (Doc. No. 11-1)
references, but does not attach, the 18 exhibits submitted with the first memorandum of law.
Second, the second memorandum of law adds approximately two pages of legal argument,
beginning with the second full paragraph of page 4 and extending through the partial paragraph
at the top of page 6. These two new pages contain no new facts relevant to issue of equitable
tolling, but contain only state-law authorities relating to the issue of when tort claims accrue.
While the proposed amended complaint filed with the first motion is almost identical to
the Complaint, the proposed amended complaint attached to the second motion differs from the
Complaint in several respects. The proposed amended complaint attached to the second motion
(Doc. No. 11-1) adds paragraphs describing the NYPD and the Pennsylvania State Police to the
section of the pleading entitled “Parties,” (id., ¶¶ 20, 26), and includes two new causes of action
relating to these parties, both alleging negligent hiring, training, and supervision, (id., ¶¶ 80–81,
90–91). In addition, this pleading adds several new theories of liability, alleging that the NYPD
Detectives violated the anti-retaliatory provisions of New York Executive Law § 296, and
alleging § 1983 equal protection claims against the Troopers, Dr. Bailey-Wallace, Laux, and the
Doe Defendants.
Although there is a question as to whether the second motion to amend was timely filed,
the Court will assume that it was for purposes of this motion. The Court will deem the
memorandum filed with the second motion to be an amended memorandum of law, superseding
the memorandum of law filed with the first motion. In addition, the Court will deem the exhibits

5

included in the first motion to be attached to the amended memorandum of law (the “Amended
Memorandum”).
The Amended Memorandum
The Amended Memorandum explains in some detail why Ellis did not file this action
sooner. First, Ellis asserts that, while he “suspected that he was injured” during the July 12,
2007, assault, he “did not learn of his injuries” until 2010. (Am. Memo., p. 3). On June 29,
2010, Ellis had an MRI of his right shoulder which revealed a superior labral tear (id.) – a tear of
the fibrocartilage attached to the rim of the shoulder socket that helps keep the ball of the
shoulder joint in place. See https://www.hopkinsmedicine.org/orthopaedic-surgery/specialtyareas/sports-medicine/conditions-we-treat/labral-tear-shoulder.html. Immediately after learning
the results of this MRI, Ellis filed a § 1983 action in the Supreme Court of the State of New
York, Queens County, against Commissioner Kelly, the NYPD Detectives, and the Troopers.
(Am. Memo., p. 2; Ex. F). Although Ellis does not allege precisely when he filed this action, he
alleges that it was filed within three years of the July 12, 2007, incident. (Am. Memo., p. 2).
However, in late September 2010, the state court returned the § 1983 complaint to him with a
note indicating that one or more of his submissions needed to be notarized.
On August 20, 2010, Ellis was transferred from Auburn Correctional Facility to
Shawangunk Correctional Facility. (Am. Memo, p. 2; Ex. J). From October 21, 2010, to July
31, 2012, Ellis made regular trips between Shawangunk and other correctional facilities in
connection with court proceedings in Queens County. (Id.). Ellis asserts that he was unable to
access the law library or to resubmit his state-court action during this period. (Am. Memo., p. 2).
In addition, the right-handed Ellis had four different surgeries between February 2011
and April 2015 which allegedly limited his ability to write. Specifically, Ellis had surgery on his

6

right shoulder on February 15, 2011; his right elbow on June 14, 2013; his right wrist in June
2014; and his right shoulder again on April 28, 2015. Ellis asserts that, “[b]etween the multiple
medical trips and [his] … inability to use his right hand,” he “was in no position” to pursue a
legal action. (Id., p. 3). Accordingly, he contends that “equitable tolling should be applied … at
minimum to 2015.” (Id.).
Ellis does not specify precisely how much time he spent in the hospital or when his
physical disability ended. However, he does allege that he refiled his state-court claim on three
occasions between March 2015 and mid-July 2015. (Id.). Ellis’s Amended Memo does not
suggest any basis for equitably tolling for the period between mid-July 2015 and October 29,
2017, when he commenced this action by placing his complaint in the prison mailbox.
On August 15, 2016, Ellis filed a complaint with the New York State Commission on
Judicial Conduct, complaining about the handling of his state-court action. (Id.). The
Commission dismissed his complaint on January 20, 2017. (Ex. Q). Although Ellis claims that
the Commission’s action led to his “ultimately filing in the Eastern District,” (Am. Memo., p. 3),
he offers no explanation for why he waited over ten months after receiving the Commission’s
letter before commencing this action.
II.

Standard of Review
Under 28 U.S.C. § 1915A, a district court “shall review, before docketing, if feasible or,

in any event, as soon as practicable after docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A. Upon review, a district court shall dismiss a prisoner’s complaint
sua sponte if the complaint is “frivolous, malicious, or fails to state a claim upon which relief
may be granted; or seeks monetary relief from a defendant who is immune from such relief.”
Id.; Liner v. Goord, 196 F.3d 132, 134 & n.1 (2d Cir. 1999) (noting that sua sponte dismissal of
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frivolous prisoner complaints is not only permitted but mandatory); see also Tapia-Ortiz v.
Winter, 185 F.3d 8, 11 (2d Cir. 1999). A complaint may be dismissed as frivolous prior to
service where it is clear from the face of the complaint that the claim is time-barred under the
applicable statute of limitations. See Pino v. Ryan, 49 F.3d 51, 54 (2d Cir. 1995).
Pro se complaints are held to less stringent standards than pleadings drafted by attorneys
and the Court is required to read the plaintiff’s pro se complaint liberally and interpret it raising
the strongest arguments it suggests. Erickson v. Pardus, 551 U.S. 89 (2007); Hughes v. Rowe,
449 U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 191–93 (2d Cir.
2008). Moreover, at the pleadings stage of the proceeding, the Court must assume the truth of
“all well-pleaded, nonconclusory factual allegations” in the complaint. Kiobel v. Royal Dutch
Petroleum Co., 621 F.3d 111, 123 (2d Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
“Ordinarily, the district court should not dismiss a pro se plaintiff’s complaint without granting
leave to amend ‘when a liberal reading of the complaint gives any indication that a valid claim
might be stated.’” Hariprasad v. New York, 722 F. App’x 102, 103 (2d Cir. 2018) (summary
order) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)); see Adams v. Horton, 725
F. App’x 78, 79 (2d Cir. 2018) (summary order).
While leave to amend is to be granted “freely ... when justice so requires,” Fed. R. Civ. P.
15(a), “leave to amend should be denied if it would be futile.” Thompson v. Racette, 519 F.
App’x 32, 34 (2d Cir. 2013) (summary order) (citing Cuoco, 222 F.3d at 112). “[A] proposed
amendment is considered futile and leave may be appropriately denied when the statute of
limitations for asserting the amended claim has expired.” Lin v. Joedy, 214 F. Supp. 3d 207, 211
(W.D.N.Y. 2016) (citing Grace v. Rosenstock, 228 F.3d 40, 53 (2000)).
III.

Discussion
“The statute of limitation for claims brought under 42 U.S.C. § 1983 is generally the

statute of limitations for the analogous claim under the law of the state where the cause of action
accrued.” McDonough v. Smith, 898 F.3d 259, 265 (2d Cir. 2018) (internal quotation marks and
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citation omitted), cert. granted, No. 18-485, 2019 WL 166879 (U.S. Jan. 11, 2019). Because Ҥ
1983 claims are best characterized as personal injury actions,” Owens v. Okure, 488 U.S. 235,
240 (1989), the applicable limitations period for § 1983 claims “is found in the general or
residual [state] statute [of limitations] for personal injury actions.” Pearl v. City of Long Beach,
296 F.3d 76, 79 (2d Cir. 2002) (alterations in original) (internal quotation marks and citation
omitted). Since New York law requires that most personal injury actions be commenced within
three years, see N.Y. C.P.L.R. § 214(5), “[c]laims under § 1983 are governed by a three-year
statute of limitations in New York.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 79
(2d Cir. 2015) (citing Pearl, 296 F.3d at 79.
In contrast, “the accrual date of a § 1983 cause of action is a question of federal law that
is not resolved by reference to state law.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (emphasis
in original). “Federal courts apply ‘general ... common-law tort principles’ to determine the
accrual date of a Section 1983 claim.” Spak v. Phillips, 857 F.3d 458, 462 (2d Cir. 2017)
(quoting Wallace, 549 U.S. at 388). “[I]t is the standard rule that accrual occurs when the
plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and
obtain relief.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (quoting Wallace, 549 U.S. at
388). “Put other ways, an action accrues ‘when the wrongful act or omission results in
damages,’ id., and ‘once the plaintiff knows or has reason to know of the injury which is the
basis of his action,’ Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (internal quotation marks
omitted).” McDonough, 898 F.3d at 265. However, a “cause of action accrues even though the
full extent of the injury is not then known or predictable.” Wallace, 549 U.S. at 391 (quoting 1
C. Corman, Limitation of Actions § 7.4.1, 526–527 (1991) (footnote omitted)). “Were it
otherwise, the statute would begin to run only after a plaintiff became satisfied that he had been

9

harmed enough, placing the supposed statute of repose in the sole hands of the party seeking
relief.” Id.
“Although federal law determines when a section 1983 claim accrues, state tolling rules
determine whether the limitations period has been tolled, unless state tolling rules would ‘defeat
the goals’ of section 1983.” Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 2007) (quoting Pearl,
296 F.3d at 80). No section of New York law provides “that the time for filing a cause of action
is tolled during the period in which a litigant pursues a related, but independent cause of action.”
Bd. of Regents of Univ. of State of N.Y. v. Tomanio, 446 U.S. 478, 486 (1980). In Tomanio, the
Supreme Court “determined that New York’s rules of tolling, insofar as they fail to provide that
a § 1983 action is tolled while a related state action is being pursued, are not inconsistent with
the provisions of 42 U.S.C. § 1983.” Leigh v. McGuire, 507 F. Supp. 458, 460 (S.D.N.Y.), aff'd
without op., 659 F.2d 1060 (2d Cir. 1981); see Robertson v. Finnegan, No. 86-CV-6492 (MJL),
1989 WL 58023, at *3 (S.D.N.Y. May 23, 1989).
A. The Claims against the NYPD Defendants and State Police Defendants
While it may have taken until 2016 for Ellis to learn the full extent of the injuries
inflicted by the NYPD Detectives, his § 1983 and state-law claims against these defendants
accrued on July 12, 2007. “[A]n excessive force claim accrues ‘when the use of force
occurred.’” McClanahan v. Kelly, No. 12-CV-6326 (PGG), 2014 WL 1317612, at *4 (S.D.N.Y.
Mar. 31, 2014) (quoting Jefferson v. Kelly, No. 06-CV-6616 (NGG) (LB), 2008 WL 1840767, at
*3 (E.D.N.Y. Apr. 22, 2008)). Ellis’s claims against the Troopers also accrued on July 12, 2007,
since “a claim based on failure to intervene accrues when the failure to intervene occurs.”
Thomas v. City of Troy, 293 F. Supp. 3d 282, 303 (N.D.N.Y. 2018) (citing Roundtree v. City of
New York, 15-CV-6582 (GHW), 2018 WL 443751, at *3 (S.D.N.Y. Jan. 16, 2018)). Ellis’s

10

claims against Commissioner Kelly and Lt. Mercer for failure to train and supervise accrued that
same day. See Jones v. Swank, No. 2:11-CV-797, 2012 WL 4107981, at *5 (S.D. Ohio Sept. 19,
2012) (claim for failure to train accrues when the plaintiff either knows or has reason to know of
the injury that forms the basis of his claim). The claims against the NYPD and the State Police
are based on the same acts underlying the claims against Commissioner Kelly and Lt. Mercer.
Since Ellis’s claims against the NYPD Defendants and State Police Defendants accrued
on July 12, 2007, the three-year statute of limitations expired on July 12, 2010. Ellis implies that
he filed his state-court action against these defendants by that date. (Am. Memo., p. 2) (stating
that Ellis filed his § 1983 action in state court “within the three (3) year time limitation”).
However, New York law does not provide for tolling “during the period in which a litigant
pursues a related, but independent cause of action,” Tomanio, 446 U.S. at 486, and Ellis has not
suggested any other basis for tolling the time prior to July 12, 2010. Accordingly, Ellis’s § 1983
claims against the NYPD Defendants and the State Police Defendants are time-barred. It would
be futile to permit Ellis to amend his pleading with respect to these defendants. See Lin, 214 F.
Supp. 3d at 211.
B. The Claims against Dr. Bailey-Wallace and the Auburn Defendants
The determination of precisely when Ellis’s claims accrued against Dr. Bailey-Wallace
and the Auburn Defendants is complicated because it is unclear whether the continuing-violation
doctrine applies to § 1983 claims that do not involve allegations of discrimination. “[T]he
Second Circuit has not ruled directly on point, in a published case, that the continuing-violation
doctrine applies in a failure-to-treat case.” Remigio v. Kelly, No. 04-CV-1877 (JGK) (MHD),
2005 WL 1950138, at *9 n. 6 (S.D.N.Y. Aug. 12, 2005). However, in at least two cases, the
Second Circuit has implied that it might. The first case – Pino v. Ryan, supra – involved an

11

appeal from the sua sponte dismissal of an inmate’s complaint on the ground that the plaintiff’s
deliberate indifference claims against prison officials were time-barred. Although the complaint
alleged only acts or omissions which occurred five years prior to the filing of the complaint,
appellate counsel argued that it was at least “‘conceivable’ that further factual development of
the record might have indicated that the defendants continued to deny [the inmate] medical
treatment for the lingering effects of his injuries ….” Id. at 54. While the Second Circuit
affirmed the district court’s decision, noting that it was within the judge’s “discretion to dismiss
… [the] complaint as facially time-barred,” it noted that the plaintiff had “the opportunity to
allege in a timely motion for reconsideration any additional facts that might have existed
indicating wrongful conduct continuing within the limitations period.” Id.
The second case – Pratts v. Coombe, 59 F. App’x 392, 395 (2d Cir. 2003) (summary
order) – involved an appeal from the sua sponte dismissal of a complaint in which an inmate
alleged that a doctor and a nurse at a state prison had been deliberately indifferent to his medical
needs over a seven-year period. The Second Circuit not only construed the plaintiff’s pro se
appeal as arguing that this deliberate indifference claim was “not time-barred based on a theory
of continuing violation,” (id. at 395), but also provided the plaintiff with guidance as to how
plead such a theory, stating that the plaintiff’s “pursuit of a continuing violation claim requires
him to plead both an ongoing policy of deliberate indifference and ‘some non-time-barred acts
taken in furtherance of that policy.’” Id. (quoting Harris v. City of New York, 186 F.3d 243, 250
(2d Cir. 1999)).
At least two district courts have cited to Pratts or Pino in extending the continuingviolation doctrine to § 1983 deliberate indifference claims. See Crenshaw v. Wright, No. 09-CV6059L, 2009 WL 2447931, at *3 (W.D.N.Y. Aug. 3, 2009) (citing Pratts for the proposition that

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“if a continuing violation can be shown, a plaintiff is entitled to bring suit challenging conduct
that was a part of that violation, even conduct that occurred outside the statute of limitations
period”); Cole v. Miraflor, No. 99-CV-977 (RWS), 2001 WL 138765, at *6 (S.D.N.Y. Feb. 19,
2001) (citing to Pino and applying the continuing violation doctrine in calculating the date on
which a deliberate indifference claim accrued). However, other district courts have limited the
continuing-violation doctrine to discrimination claims. See Vested Bus. Brokers, Ltd. v. Cty. of
Suffolk, No. 16-CV-4945 (JMA) (SIL), 2017 WL 4122616, at *5 (E.D.N.Y. Sept. 15, 2017),
aff’d, 741 F. App’x 39 (2d Cir. 2018); Koehl v. Greene, No. 9:06-CV-0478 (LEK) (GHL), 2007
WL 2846905, at *7 (N.D.N.Y. Sept. 26, 2007). In Koehl, Judge Kahn opined that it was “highly
questionable whether the ‘continuing violation’ doctrine, which is ‘largely a creature of Title VII
employment discrimination law,’ may also be applied in Section 1983 civil rights actions that do
not involve allegations of discrimination.” 2007 WL 2846905, at *7. Judge Kahn noted that
Pratts was a summary order, and thus without precedential effect in this Circuit, and that Pino
was “consistent with the proposition that the continuing-violation doctrine may apply to
deliberate indifference claims arising under 42 U.S.C. § 1983 if those claims involve allegations
of discrimination.” Id. at *8 (emphasis omitted). In Vested Bus. Brokers, Ltd., Judge Azrack,
citing to Koehl, found that “the weight of authority in the Second Circuit appears to hold that the
continuing-violation doctrine may not be applied to Section 1983 civil rights claims that do not
involve allegations of discrimination.” 2017 WL 4122616, at *5.
While this split of authority complicates the determination of precisely when Ellis’s
deliberate indifference claims accrued, the Court does not need to calculate that date with
precision. The only allegations against Dr. Bailey-Wallace stem from her October 2008 refusal
to order an MRI. The deliberate indifference allegations against the Auburn Defendants must

13

arise from actions or omissions which occurred prior to August 20, 2010, when Ellis was
transferred from Auburn to Shawangunk Correctional Facility. Accordingly, even if Ellis could
make out a continuing violation involving Dr. Bailey-Wallace and the Auburn Defendants,
Ellis’s deliberate indifference cause of action would accrue, at the very latest, on August 20,
2010 – more than seven years and two months before he commenced this action.
C. Equitable Tolling
In his Amended Memorandum, Ellis argues that the Court should equitably toll the period
between October 21, 2010, and sometime in 2015. (Am. Memo. at 2–3). “Generally, a litigant
seeking equitable tolling bears the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way.”
Watson v. United States, 865 F.3d 123, 132 (2d Cir. 2017) (quoting Mottahedeh v. United States,
794 F.3d 347, 352 (2d Cir. 2015)). The second prong “is met only where the circumstances that
caused a litigant’s delay are both extraordinary and beyond its control.” Frederick v. JetBlue
Airways Corp., 671 F. App’x 831, 832 (2d Cir. 2016) (summary order) (quoting Menominee
Indian Tribe of Wis. v. United States, 136 S.Ct. 750, 756 (2016)) (emphasis in Menominee Indian
Tribe). In addition, the litigant “must further demonstrate that those circumstances caused him
to miss the original filing deadline.” Watson, 865 F.3d at 132 (quoting Harper v. Ercole, 648
F.3d 132, 137 (2d Cir. 2011)) (emphasis in Watson).
Ellis has not demonstrated a basis for equitable tolling. First, he claims that he was
unable to file this action between October 21, 2010, and July 31, 2012, because he was being
shuttled “back and forth to court” and was involved in a criminal case in Queens County. (Am.
Memo. at 2). However, the document which Ellis has provided in support of this claim
establishes that he remained in Shawangunk for months at a time during this 21-month period.

14

For example, he was at Shawangunk for over four months between November 19, 2010, and
March 25, 2011; for most of the month of April 2011; for almost two months between June 3,
2011 and July 29, 2011; and for over a month between November 30, 2011, and January 6, 2012.
Ellis does not explain what events beyond his control prevented him from filing an action during
these eight months. To the contrary, his Amended Memorandum suggests that he himself may
have chosen to concentrate on his criminal cases during this period. (See Am. Memo. at 2)
(“These trips made it not possible . . . to resubmit as petitioner was facing a criminal trial in
Queens County while appealing his conviction in Kings County.”).
Second, Ellis claims that he had four surgeries between February 15, 2011, and April 28,
2015, that impeded his ability to write. However, these surgeries were generally more than a
year apart. He had surgery to his right shoulder on February 15, 2011; surgery to his right elbow
almost exactly 26 months later, on June 14, 2013; surgery to his right wrist a year after that, in
June 2014; and a second surgery to his right shoulder on April 28, 2015. (Am. Memo. at 3).
“[H]ospitalization may demonstrate extraordinary circumstances, … depending on the facts
presented,” but “a party seeking equitable tolling based on a medical condition or hospitalization
would be expected to provide corroborating evidence of the condition and its severity.” Harper,
648 F.3d at 137 & n.4. Here, Ellis has not provided any evidence that these surgeries required
prolonged hospitalization or rendered him so disabled as to justify tolling the entire period from
February 15, 2011, to the end of 2015. Indeed, Ellis himself alleges that he filed submissions in
his state-court case on July 15, 2015 – less than two months after his second shoulder surgery.
In sum, even assuming that the continuing-violation doctrine applies to § 1983 deliberate
indifference claims and that Ellis’s claims against Dr. Bailey-Wallace and the Auburn
Defendants accrued on August 20, 2010, these claims would still be time-barred unless Ellis

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could establish equitable tolling of four years and two months. Ellis has not demonstrated a
basis for equitably tolling that lengthy a period of time. Accordingly, it would be futile to grant
Ellis leave to amend his claims against Dr. Bailey-Wallace and the Auburn Defendants.
CONCLUSION
For the reasons stated above, Ellis’s motions for leave to amend are denied as futile
because all of his federal claims are time-barred. The Court declines to exercise supplemental
jurisdiction over Ellis’s state-law claims. This action is dismissed without prejudice to
continuing to pursue the state-law claims in the action which Ellis has already filed in the
Supreme Court of the State of New York.
The Clerk of Court is directed to enter judgment in accordance with this Memorandum
and Order and to close this case. The Clerk of Court shall also send a copy of the judgment and
this Memorandum and Order to Ellis at the address listed for him on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order
would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of
an appeal. See Coppedge v. United States, 369 U.S. 438, 444–45 (1962).
SO ORDERED.
Dated: Brooklyn, New York
March 18, 2019

Roslynn R. Mauskopf

____________________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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