Jennings v. The Municipality of Suffolk County et al

Filing 68

ORDER granting 49 Motion to Dismiss for Failure to State a Claim; granting 50 Motion to Dismiss; denying 61 Motion for Judgment on the Pleadings. For the reasons set forth in the Court's February 13, 2013 Memorandum and Order, defendan ts' motions to dismiss are granted. The Court declines to exercise supplemental jurisdiction over any state law claims that plaintiff is attempting to assert, and such state claims are dismissed without prejudice. Given that plaintiff's fed eral claims have been dismissed as time-barred, plaintiff's cross-motion for judgment on the pleadings is denied. 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; the refore, in forma pauperis status is denied for purposes of an appeal. IT IS FURTHER ORDERED that the Court will conduct a telephone conference on February 22, 2013, at 1:15 p.m. to address plaintiff's motion to amend the complaint in connection with the alleged medical/dental malpractice that occurred in 2011 after he was transferred to an upstate prison. At that time, counsel for defendants shall initiate the call and, once all parties are on the line, shall contact Chambers at [phone]. SO ORDERED. Ordered by Judge Joseph F. Bianco on 2/13/2013.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 11-cv-00911 (JFB) (ARL)
_____________________

CYLDE J. JENNINGS,
Plaintiff,
VERSUS

THE MUNICIPALITY OF SUFFOLK COUNTY, ET. AL.,
Defendants.
___________________
MEMORANDUM AND ORDER
February 13, 2013
___________________

JOSEPH F. BIANCO, District Judge:
Plaintiff Clyde J. Jennings (“plaintiff” or
“Jennings”) brought this action against the
County of Suffolk, County Executive Steve
Levy,
the
Suffolk
County
Police
Department, the Narcotics Enforcement
Special Operations Team (collectively, the
“Suffolk defendants”), the North Shore
Long Island Jewish Health System (“North
Shore” or “Hospital”) and medical doctor
Mark
Auerbach
(“Dr.
Auerbach”)
(collectively, the “medical defendants”), and
other individually-named defendants who
are members of either the police force or
Hospital.1,2 Plaintiff alleges that the
1

The Court refers to both the Suffolk defendants and
the medical defendants collectively as, “defendants.”
2
Additionally named defendants include Detective
Christopher Talt (Shield #1327), Supervising
Sergeant John Diffley (Shield #542), Supervising
Sergeant John Doe (Shield #594), Police Officer
Michael J. Cammarata (Car #306), Police Officer
Timothy Drake (Car #306), Transporting P.O. John

defendants deprived him of his civil rights
when the Suffolk defendants inflicted
excessive force upon him at the time of his
arrest on December 20, 2007, and when,
subsequent to his arrest, the defendants
denied him adequate medical care while in
police custody on December 20-21, 2007.3
Defendants move to dismiss this action,
pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure, on the grounds
that plaintiff’s complaint fails to state a
legally cognizable claim of a civil rights
violation under 42 U.S.C. § 1983.
Doe (Shield #5729), Transporting P.O. John Doe
(Shield #6037), Stationhouse Det. John Doe (Shield
#4096), Photographer Det. Serrata (Shield #1373),
Police Department Cell Attendant (Shield #116),
Tracy Busch (Registered Nurse), and David Reed
(R.P.A.-C).
3
In particular, plaintiff alleges violations of Article I,
Section 5 of the United States Constitution, as well as
of the First, Fourth, Eighth, and Fourteenth
Amendments. (Compl. ¶ 32.)

Defendants
additionally
allege
that
plaintiff’s Section 1983 claim is time-barred.
The medical defendants likewise assert that
plaintiff’s medical malpractice claim is
time-barred. For the reasons set forth herein,
the Court grants the defendants’ respective
motions to dismiss all federal claims, and
the Court declines to exercise supplemental
jurisdiction over any state claims.4

2011 medical care cannot resurrect the
untimely claims related to the alleged 2007
conduct. Moreover, plaintiff has failed to
allege a sufficient basis for equitable tolling.
Accordingly, the federal claims are
dismissed.
I. BACKGROUND
A. Factual Background

Specifically, plaintiff’s Section 1983
claims are based upon defendants’ alleged
conduct in December 2007. Because this
lawsuit was not filed until February 2011,
the federal claims are untimely under the
applicable three-year statute of limitations.
Although plaintiff contends that additional
improper medical care received in the
summer of 2011 (that was only necessary
because of the alleged December 2007
conduct) should extend the three-year
period, the Court disagrees. The 2011
medical care is a separate and discrete event,
unrelated to the 2007 conduct and to the
defendants in this case. For this reason, the

The following facts are taken from
plaintiff’s February 24, 2011 complaint, as
well as from his April 18, 2012 amended
complaint, and are not findings of fact by
the Court. Instead, the Court assumes these
facts to be true for purposes of deciding the
pending motions to dismiss and will
construe them in a light most favorable to
plaintiff, the non-moving party.
Plaintiff alleges that, at approximately
10:00 p.m. on the night of December 20,
2007, members of the Suffolk County Police
Department assaulted him during an arrest,
causing him to sustain various physical
injuries. (Compl. ¶¶ 3-7.)5 Specifically,
plaintiff contends that, after being chased by
a police officer, he laid down on the ground
with his hands behind his back. (Id. ¶ 4.) An
officer then punched him on the right side of
his face, with another officer placing his foot
on the previously punched part of plaintiff’s
face, pressing it into the ground. (Id. ¶¶ 4-5.)
With his hands now cuffed behind his back,
plaintiff claims he next suffered several
kicks to his face, (id. ¶ 6), and that
“[a]fterwards, I was helped to my feet by
several Police Officers, and the [sic]
punching and hitting me with fist and
retractible-batons [sic],” (id. ¶ 7.)

4

On November 19, 2012, while the current motion
to dismiss was pending, plaintiff filed a motion to
amend his complaint again. (Pl.’s Mot. to Amend
Compl., ECF No. 64.) Plaintiff is seeking to amend
the complaint to include claims against various
defendants for medical/dental treatment he allegedly
received in 2011 in an upstate facility controlled by
the New York State Department of Correctional
Services. This Memorandum and Order solely
addresses defendants’ motions to dismiss the current
amended complaint, filed on April 18, 2012. The
medical defendants suggest that the claims against
them have been abandoned because they are not
named in the November 19, 2012 proposed pleading;
the Court declines to deem them abandoned,
however, because it is possible that plaintiff simply
would like to supplement his prior pleading by
adding new defendants and events, rather than
replace it. Thus, the Court will continue to treat the
amended complaint, filed on April 18, 2012, as the
operative pleading, which the Court reads in
conjunction with the original complaint. The Court
will address the latest motion to re-plead at a
telephone conference, which will be scheduled in the
near future.

Plaintiff claims that, following the
assault, he requested medical treatment
5

Plaintiff does not clarify in his complaint the
grounds for his arrest.

2

Additionally, plaintiff claims in his
amended complaint that, on June 14, 2011, a
“corrective surgery” was improperly
performed on him by non-party Dr.
O’Kefee, which he contends constitutes a
continuous violation of his civil rights by the
medical defendants. (Pl.’s Aff. in Supp. of
Mot. to Amend (“Am. Compl.”) ¶¶ 1-3, 8.)6
Plaintiff suggests that the injuries he
sustained during his 2007 arrest required
oral surgery, (Am. Compl. ¶ 1), and that his
2011 treatment with Dr. O’Kefee is part and
parcel of the deliberate indifference to
serious medical needs claim because “it has
taken the duration of approximately four (4)
years to come to this far [sic], and corrective
surgery not be [sic] fully completed,” (id.
¶ 8.) Plaintiff does not allege that Dr.
O’Kefee is connected to the medical
defendants, nor does he claim that the
medical defendants are responsible, in whole
or in part, for the alleged delay in the June
2011 corrective procedure.

several times; each time, he was denied it.
(Id. ¶¶ 10-14.) Following his arrest, plaintiff
was brought to the Third Precinct where he
was interviewed, photographed, and brought
to the cell area. (Id. ¶ 10-13.) Plaintiff states
that he expressed his need for medical
attention to the interviewing officer, the
photographer, and the cell attendant; all
refused or failed to provide him with such
treatment. (Id.)
The following day, December 21, 2007,
police took plaintiff to the emergency room
at Southside Hospital, a hospital owned and
operated by North Shore. (Id. ¶ 17; Defs.’
North Shore and Auerbach’s Mem. in Supp.
of Mot. to Dismiss (“Medical Defs.’ Mem.”)
at 2.) Dr. Auerbach was his treating
physician. (Compl. ¶ 17.) The transporting
officers allegedly instructed Dr. Auerbach,
along with co-defendants Tracy Busch, R.N.
and David Reed, R.P.A.-C., to “clean
[plaintiff’s] face as best that they could and
only administer [him] whatever medical
attention that is minimal (such as
medications). And don’t take any [x]-rays or
[p]hotograhs of him.” (Id.) According to
plaintiff, the treating physicians provided
him with “minimal treatment and [then]
released [him] to the transporting [o]fficers.”
(Id.)

B. Procedural History
Plaintiff submitted his complaint to
prison officials on February 20, 2011. His
complaint was subsequently filed on
February 24, 2011. On April 28, 2011,
Suffolk defendants filed their pre-answer
motion to dismiss. Medical defendants filed
their motion to dismiss on June 16, 2011.

As a result of the alleged assault and
deficient medical treatment, plaintiff asserts
that he sustained various physical injuries,
including a loss of teeth; “pains that [he]
deal[s] with on a constant basis . . . in the
entire right side of [his] body, from head to
toes,” (id. ¶ 19); eye sensitivity, (id. ¶ 20);
under-eye bruising; and pains in his feet,
right shoulder, and the lower part of his
back, (id. ¶¶ 20-23.) On account of these
injuries, plaintiff contends that neither
exercise nor employment in the construction
field (his prior field of work) are viable
options for him upon release from detention.
(Id. ¶ 36.)

On June 15, 2011, plaintiff filed a
motion to strike pursuant to Rule 12(f) of the
Federal Rules of Civil Procedure, seeking to
remove “pleadings from the Defendants that
are insufficient to [plaintiff’s] defense or any
redundant, immatterial [sic], impertinent, or
scandalous matter to this complaint,” which
6

Specifically, plaintiff claims that he underwent
improper corrective surgery on the left side of his
face, which resulted in “drilling an unnecessary hole
in the area of [his] first Premolar along the path of
[his] Nasal Spine on the Maxilla Bone.” (Am. Compl.
¶ 2.)

3

defendants filed a reply. The Court has fully
considered the submissions of the parties.9

plaintiff asserted “aid in the purpose to
create prejudice against the true issues of
this complaint.” (Pl.’s Mot. to Strike ¶¶ 1-2.)
Suffolk defendants countered on June 17,
2011, noting that they had not filed any
pleading in the action, with the exception of
their pending motions to dismiss, such that
Rule 12(f) could be deemed applicable. On
July 25, 2011, plaintiff submitted a letter to
the Court, requesting leave to amend. This
request was filed on August 1, 2011.7 At a
hearing held on December 28, 2011, the
court denied plaintiff’s motion to strike, but
granted plaintiff’s request to amend his
complaint. Plaintiff subsequently filed an
amended complaint, against the same
defendants but adding allegations related to
the original claims, which the Court
accepted on April 18, 2012.8 On May 18,
2012, the County defendants and medical
defendants filed separate motions to dismiss.
On June 18, 2012, plaintiff filed his
response. On June 22, 2012, the medical

II. STANDARD OF REVIEW
In reviewing a motion to dismiss under
Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a court must accept the factual
allegations as set forth in the complaint as
true and draw all reasonable inferences in
favor of the plaintiff. See ATSI Commc’ns.,
Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d
Cir. 2007); Cleveland v. Caplaw Enters.,
448 F.3d 518, 521 (2d Cir. 2006). The
plaintiff must satisfy “a flexible ‘plausibility
standard,’ which obliges a pleader to
amplify a claim with some factual
allegations in those contexts where such
amplification is needed to render the claim
plausible.” Iqbal v. Hasty, 490 F.3d 143,
157-58 (2d Cir. 2007). “[O]nce a claim has
been stated adequately, it may be supported
by showing any set of facts consistent with
the allegations in the complaint.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 563
(2007). Thus, the Court does not require
“heightened fact pleading of specifics, but
only enough facts to state a claim to relief
that is plausible on its face.” Id. at 570.

7

Plaintiff resubmitted a nearly identical request
several weeks later, dated August 15, 2011, and filed
with the Court on August 25, 2011.
8
The specific date when plaintiff submitted the
amended complaint to prison authorities is not clear
from the record. On both February 1, 2012 and
March 21, 2012, plaintiff’s “Affidavit in support of
Motion to Amend the Complaint” was filed with the
Court. The docket contains two separate proofs of
service of the amended complaint, one dated January
25, 2012, and the other dated March 17, 2012. The
January 25 proof of service states that “on the 25th
day of July, of 2011[,] I the Plaintiff delivered this
complaint to the prison authorities.” The March 17
proof of service states that the complaint was
delivered on March 17, 2012 to prison authorities.
Because either of the possible dates for the amended
complaint’s delivery to prison authorities – which is
the relevant date for purposes of assessing accrual of
plaintiff’s claims, see Whitfield v. O’Connell, No. 09
Civ.1925(WHP), 2010 WL 1010060, at *5 (S.D.N.Y.
Mar. 18, 2010) – is outside of the three-year statute
of limitations period for the alleged claims, the Court
need not determine which dated version of the
amended complaint (which are identical in content) is
the correct one.

This standard is especially true when a
case involves a pro se plaintiff. The Second
Circuit recently emphasized in Sealed
Plaintiff v. Sealed Defendant that “[o]n
occasions too numerous to count, we have
reminded district courts that when [a]
plaintiff proceeds pro se, . . . a court is
obliged to construe his pleadings liberally. . .
. This obligation entails, at the very least, a
permissive application of the rules
governing the form of pleadings. . . . This is
particularly so when the pro se plaintiff
9

Plaintiff also filed a motion for judgment on the
pleadings on November 5, 2012. However, because
the federal claims must be dismissed for the reasons
discussed infra, plaintiff’s cross-motion is denied.

4

Eagleston v. Guido, 41 F.3d 865, 871 (2d
Cir. 1994)). Although “state law supplies the
statute of limitations for claims under
section 1983, federal law determines when a
federal claim accrues.” Quiles v. City of
N.Y., No. 01Civ. 10934(LTS)(THK), 2003
WL 21961008, at *5 (S.D.N.Y. Aug. 13,
2003). The clock for such a claim begins to
run “‘when the plaintiff knows or has reason
to know of the injury which is the basis of
his action.’” Pendleton, 849 F. Supp. 2d at
329 (quoting Pearl v. City of Long Beach,
296 F.3d 76, 80 (2d Cir. 2002)); see also
Eagleston, 41 F.3d at 871 (“[T]he proper
focus is on the time of the . . . act, not the
point at which the consequences of the act
become[] painful.” (quoting Chardon v.
Fernandez, 454 U.S. 6, 8 (1981) (internal
quotation marks omitted)). In the context of
an excessive force claim, the clock starts
running “when the use of force occurred.”
Fairley v. Collins, No. 09 Civ. 6894(PGG),
2011 WL 1002422, at *3 (S.D.N.Y. Mar. 15,
2011) (quoting Jefferson v. Kelly, No. 06
Civ. 6616(NGG) (LB), 2008 WL 1840767,
at *3 (E.D.N.Y. Apr. 22, 2008)); see also
Perez v. Johnson, No. 07 Civ. 3761(NRB),
2008 WL 2876546, at *2 (S.D.N.Y. July 23,
2008) (“Plaintiff’s first claim, for excessive
force, accrued . . . when he was allegedly
injured by the arresting officers.”).

alleges that her civil rights have been
violated. . . . Accordingly, the dismissal of a
pro se claim as insufficiently pleaded is
appropriate only in the most unsustainable
of cases.” 537 F.3d 185, 191 (2d Cir. 2008)
(internal citations and internal quotation
marks omitted); see also Weixel v. Bd. of
Educ. of the City of N.Y., 287 F.3d 138, 14546 (2d Cir. 2002) (holding that when
plaintiff is appearing pro se, the court shall
“‘construe [the complaint] broadly, and
interpret [it] to raise the strongest arguments
that [it] suggest[s].’” (quoting Cruz v.
Gomez, 202 F.3d 593, 597 (2d Cir. 2000))
(alterations in original)).
When assessing a motion to dismiss, the
Court generally may only consider the “facts
stated in the complaint or documents
attached to the complaint as exhibits or
incorporated by reference.” Nechis v. Oxford
Health Plans, Inc., 421 F.3d 96, 100 (2d Cir.
2005); accord Kramer v. Time Warner Inc.,
937 F.2d 767, 773 (2d Cir. 1991). Here,
plaintiff did not append any documents to
his complaint or incorporate any such
documents by reference therein. The Court
therefore confines its review to the face of
the complaint.
III. DISCUSSION
A.

Section 1983 Claims

Deliberate indifference claims accrue
along the same lines, i.e., “when the plaintiff
knows or has reason to know of the injury,”
Fairley, 2011 WL 1002422, at *3; Whitfield
v. O’Connell, No. 09 Civ.1925(WHP), 2010
WL 1010060, at *5 (S.D.N.Y. Mar. 18,
2010) (same), but with a catch: “when a
prisoner challenges a series of acts that
together comprise an Eighth Amendment
claim of deliberate indifference to serious
medical needs,” Shomo v. City of N.Y., 579
F.3d 176, 182 (2d Cir. 2009), the continuing
violation doctrine serves as an “‘exception
to the normal knew-or-should-have-known

As a threshold matter, defendants argue
that plaintiff’s federal claims under Section
1983 are time-barred because plaintiff did
not file his claim within three years of the
alleged violations. For the reasons set forth
below, the Court agrees with defendants.
1.

Legal Standard

Section 1983 actions arising in New
York have a statute of limitations period of
three years. Pendleton v. Goord, 849 F.
Supp. 2d 324, 329 (E.D.N.Y. 2012) (citing
5

v. Morgan, 536 U.S. 101, 113 (2002)
(stating the equitable tolling doctrine is “to
be applied sparingly”).

accrual date,’” id. at 181 (quoting Harris v.
City of N.Y., 186 F.3d 243, 248 (2d Cir.
1999)). Assessing an Eighth Amendment
continuing violation claim for statute of
limitations purposes requires the plaintiff to
“allege (1) ‘an ongoing policy of deliberate
indifference to his or her serious medical
needs’; and (2) for each defendant, ‘some
acts in furtherance of the policy within the
relevant statute of limitations period.’”
Whitfield, 2010 WL 1010060, at *5 (quoting
Shomo, 579 F.3d at 179, 182-84). The
application of such factors allows a court to
weed out those Eighth Amendment claims
“that
challenge
discrete
acts
of
unconstitutional conduct or that fail to allege
acts within the relevant statutory period that
are traceable to a policy of deliberate
indifference.” Shomo, 579 F.3d at 182.

2.

Application as to Suffolk Defendants
a. Excessive Force Claim

Plaintiff claims violations arising from
the Suffolk defendants’ alleged infliction of
excessive force and their subsequent denial
of medical care, all of which started and
ended on December 20-21, 2007. The Court
need not determine whether plaintiff has
stated a legally cognizable excessive force
claim because, applying the applicable legal
framework, any such claim here is timebarred.
Specifically, plaintiff’s allegations make
clear that plaintiff’s excessive force claim
accrued on December 20, 2007, i.e., “when
the use of force occurred.” Jefferson, 2008
WL 1840767, at *3; see also Daniel v. Safir,
175 F. Supp. 2d 474, 480 (E.D.N.Y. 2001)
(“[C]ourts have repeatedly held that claims
for . . . excessive force accrue on the
date . . . the force is used.”); Perez, 2008
WL 2876546, at *2 (“Plaintiff’s first claim,
for excessive force, accrued . . . when he
was allegedly injured by the arresting
officers.”). Although plaintiff’s complaint
was not filed with the Court until February
24, 2011, he delivered his complaint to
prison authorities on February 20, 2011. See
Whitfield, 2010 WL 1010060, at *5 (stating
“[f]or statute of limitations purposes, a pro
se prisoner’s complaint is deemed filed on
the date that the prisoner turn[s] his
complaint over to prison officials for
transmittal to the court, not when the court
actually receives it” (citation and internal
quotation marks omitted)). Thus, plaintiff’s
only actionable excessive force claims are
those that accrued on or after February 20,
2008. See id. Because plaintiff’s excessive
force claim accrued on December 20, 2007,

Plaintiffs, however, may stop the clock
when they can show that equitable tolling of
their federal claim is warranted. Where
equitable tolling applies, “the statute does
not begin to run until the plaintiff either
acquires actual knowledge of the facts that
comprise his cause of action or should have
acquired such knowledge through the
exercise of reasonable diligence . . . .”
Cerbone v. Int’l Ladies’ Garment Workers’
Union, 768 F.2d 45, 48 (2d Cir. 1985)
(internal quotation marks omitted)); Keating
v. Carey, 706 F.2d 377, 382 (2d Cir. 1983)
(stating “when the defendant fraudulently
conceals the wrong, the time does not begin
running until the plaintiff discovers, or by
the exercise of reasonable diligence should
have discovered, the cause of action”).
Equitable tolling is not to be applied
liberally, however; rather, it “applies only
when plaintiff is prevented from filing
despite exercising that level of diligence
which could reasonably be expected in the
circumstances.” Veltri v. Bldg. Serv. 32B-J
Pension Fund, 393 F.3d 318, 322 (2d Cir.
2004); see also Nat’l R.R. Passenger Corp.
6

serious
medical
needs.”
Jones
v.
Montalbano, No. 9-CV-4548 (DLI)(VVP),
2012 WL 847373, at *3 (E.D.N.Y. Mar. 13,
2012) (alteration in original); see also
Benjamin v. Galeno, 415 F. Supp. 2d 254,
258 (S.D.N.Y. 2005) (noting the deliberate
indifference standard “incorporates both
objective and subjective elements,” and
stating “[t]he objective ‘medical need’
element measures the severity of the alleged
deprivation, while the subjective ‘deliberate
indifference’ element ensures that the
defendant prison official acted with a
sufficiently culpable state of mind” (quoting
Morales v. Mackalm, 278 F.3d 126, 132 (2d
Cir. 2002)).

it is time-barred pursuant to the applicable
three-year statutory period. See Fairley,
2011 WL 1002422, at *3 (stating “‘[i]n New
York, the personal injury statute of
limitations that applies to section 1983
actions is three years’” (quoting Quiles,
2003 WL 21961008, at *5)).
b. Deliberate Indifference Claim
Plaintiff’s deliberate indifference claim
against the Suffolk defendants based upon
the alleged conduct in December 2007 is
similarly time-barred. Plaintiff states that he
continually requested medical care during
the two-day period when he was in police
custody, and that he did not promptly
receive the medical care he sought during
this timeframe, which constitutes a violation
of his Eighth Amendment right to be free
from cruel and unusual punishment. (See
Compl.
¶¶
10-16.)
Plaintiff
also
acknowledges that the specific factual
events supporting his claims are limited to
the time period of December 20 through
December 21, 2007. (See id. ¶ 33 (stating
“[t]hat at all times relevant hereto, I was
detained or denied medical treatment on the
date of: December the 20th of 2007 to
December the 21st of 2007 with all of the
positions and titles herein noted”); id. ¶ 34
(stating “all of the defendants noted in this
action violated either an act of police
brutality &/or medical depriving me of
attention for aid of this act that was brought
against me, by the defendants in their
individual and official capacities”).)

Plaintiff’s allegations make clear that, as
of December 21, 2007, he was aware of all
facts concerning the alleged denial of
medical care, i.e., his requests and
subsequent denials for medical care while in
police custody. Plaintiff does not identify
any specific conduct by the Suffolk
defendants occurring after December 21,
2007.
Thus,
plaintiff’s
deliberate
indifference claim fails under the applicable
statute of limitations, i.e., three years. For
plaintiff to have timely filed his claim,
plaintiff needed to have submitted his
complaint no later than December 21, 2010;
instead, he delivered it to prison officials on
February 20, 2011, two months past the
requisite deadline. Thus, his deliberate
indifference claim is time-barred.
c. Continuing Violation
Plaintiff does not expressly assert a
continuing violation claim as to the Suffolk
defendants in his original complaint.
However, he does do so in his amended
complaint, which refers back to the incidents
alleged in the original complaint, and which
the Court accepted on April 18, 2012.
Specifically, plaintiff alleges that “ongoing
medical procedures . . . need[ed] to be done

A deliberate indifference claim may lie
where plaintiff can show, objectively, “that
he was ‘actually deprived of adequate
medical care’ and that ‘the inadequacy of
medical care [wa]s sufficiently serious,’”
and subjectively, “that the charged prison
official acted with a sufficiently culpable
state of mind, namely that the official was
deliberately indifferent to the plaintiff’s
7

seen by doctors and brought to hospitals, but
that prison doctors and staff ignored
repeated
medical
treatment
recommendations and denied plaintiff
medical care access); Johnson, 412 F.3d at
404 (“[A] deliberate indifference claim can
lie where prison officials deliberately ignore
the medical recommendations of a
prisoner’s treating physicians.”).

on [plaintiff] in-order to partially correct the
damage of excessive force done to
[plaintiff’s] facial area alone, from the
incident that [occurred] on the date & time
of 12-20-2007 at approximately 10:00 p.m.”
(Am. Compl. ¶ 1.) On careful consideration
of the pleadings, the Court concludes that
the facts do not state a plausible continuing
violation claim, beyond December 2007, as
to the Suffolk defendants.

Moreover, even assuming arguendo that
plaintiff could allege a policy of deliberate
indifference based upon the December 2021 period, any continuing violation claim
still must fail because plaintiff alleges no
“non-time-barred acts taken in furtherance
of that policy” by the Suffolk defendants.
Shomo, 579 F.3d at 182. Stated differently,
plaintiff asserts no additional actions taken
by the Suffolk defendants during the threeyear limitations period following the
December 20-21, 2007 incident. See
Whitfield, 2010 WL 1010060, at *5 (stating
a successful continuing violation claim
requires “an ongoing policy of deliberate
indifference to [a plaintiff’s] serious
medical needs” and “for each defendant,
some acts in furtherance of the policy within
the relevant statute of limitations period”
(citation and internal quotation marks
omitted)).

Specifically, plaintiff has asserted no
facts suggesting that the Suffolk defendants
had “‘an ongoing policy of deliberate
indifference to [plaintiff’s] serious medical
needs,’” nor that the Suffolk defendants
committed “‘some acts in furtherance of the
policy’” during the applicable three-year
statute of limitations period. Whitfield, 2010
WL 1010060, at *5 (quoting Shomo, 579
F.3d at 179, 182).
As to the first point, plaintiff alleges that
during the approximately twenty-four hour
period when he was in police custody in
2007, he requested medical care and was
denied it by several of the prison’s personnel
responsible for supervising him. The Court
is not convinced that these medical denials
suggest a policy; indeed, the alleged facts set
forth a “discrete unlawful act” of denial of
medical treatment during the approximate
twenty-four hour custodial period. See
Shomo, 579 F.3d at 181 (“[T]he continuing
violation doctrine can be applied when the
plaintiff’s claim seeks redress for injuries
resulting from ‘a series of separate acts that
collectively constitute one ‘unlawful [act],’
but the doctrine cannot be applied when the
plaintiff challenges conduct that is a discrete
unlawful act.” (quoting Morgan, 536 U.S. at
117)); see also id. at 182 (continuing
violation claim sufficiently pled because
facts showed policy of denial of access to
care, as opposed to “an outright denial of
access to care”; finding as supportive of
policy the fact that plaintiff was frequently

In his amended complaint, plaintiff
alleges that a Dr. O’Kefee improperly
performed corrective oral surgery on him on
June 14, 2011, and that such surgery
correlates to the injuries plaintiff sustained
from the Suffolk defendants’ alleged
excessive use of force on December 20,
2007. (Am. Compl. ¶ 1.) This allegation
fails to turn back statutory time. The acts
allegedly performed by the Suffolk
defendants on December 20, 2007 are
“discrete” from any actions performed by
non-party Dr. O’Kefee approximately four
years later. See Shomo, 579 F.3d at 181
(noting Supreme Court precedent in which
8

plaintiff was unable to timely file his
complaint. (Compl. ¶ 42.) Plaintiff
additionally asserts that he “was mentally
misrepresented in an equitable conduct
which would allow [him] to induce a
commencement in a most timely manner.”
(Id.) Neither of these allegations is sufficient
to justify application of the equitable tolling
doctrine.

continuing violation doctrine held to apply
to “repeated conduct” that “occurs over a
series of days or perhaps years and[] [is] in
direct contrast to discrete acts” (quoting
Morgan, 536 U.S. at 115) (internal quotation
marks omitted)). Plaintiff establishes no
relationship between the Suffolk defendants
and Dr. O’Kefee; he does not explain why
they should not be considered wholly
independent actors; and he raises no
allegations that the Suffolk defendants and
Dr. O’Kefee colluded together regarding
plaintiff. Indeed, Dr. O’Kefee is not even
named as a party in either plaintiff’s original
or amended complaint. This allegation is
insufficient for purposes of establishing
either an ongoing policy of deliberate
indifference or a non-time-barred act, as the
June 14, 2011 incident is a separate and
distinct instance of medical care from the
December 20-21 2007 treatment.

It is well-established that “in section
1983 actions, [the court] borrow[s] not only
a state’s limitations period but also its
‘tolling rules.’” Pearl, 296 F.3d at 80
(quoting Bd. of Regents v. Tomanio, 446
U.S. 478, 484-86 (1980)). Under New York
law, tolling of a statute of limitations period
is warranted “where the court has stayed the
action, see N.Y. C.P.L.R. § 204, where the
defendant is outside the state, see N.Y.
C.P.L.R. § 207, or where the plaintiff is
under the disabilities of insanity or
infancy[,] [s]ee N.Y. C.P.L.R. § 208.”
Fairley, 2011 WL 1002422, at *4. Notably,
“New York does not toll the limitations
period for most prisoners’ lawsuits . . . [n]or
is the statute of limitations tolled [simply]
because plaintiff is a pro se litigant.” Id. at
*5 (quoting Irizarry v. Whittel, No. 01 Civ.
10735(DC), 2002 WL 31760240, at *3
(S.D.N.Y. Dec. 9, 2002)). As previously
acknowledged, equitable tolling should be
applied sparingly. See Pearl, 296 F.3d at 85
(“Although we have broadly stated . . . that
we will apply the equitable tolling doctrine
‘as a matter of fairness’ where a plaintiff has
been ‘prevented in some extraordinary way
from exercising his rights,’ Miller v. Int’l
Tel. & Tel. Corp., 755 F.2d 20, 24 (2d Cir.
1985), we made it clear that we had in mind
a situation where a plaintiff ‘could show that
it would have been impossible for a
reasonably prudent person to learn’ about
his or her cause of action.”); Johnson v.
Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996));
see also Rochester v. Sixth Precinct Police

Thus, because plaintiff sets forth no
allegations suggesting a policy of denying
medical care and has not alleged non-timebarred acts by the Suffolk defendants
conducted in furtherance of such a policy,
the continuing violation doctrine does not
apply. Accordingly, plaintiff’s deliberate
indifference claim against the Suffolk
defendants is time-barred.
d. Equitable Tolling
Although plaintiff’s federal claims
against the Suffolk defendants relate to
conduct falling outside of the applicable
statute of limitations, the Court must
consider the issue of equitable tolling. For
the following reasons, the Court concludes
that equitable tolling is unwarranted in this
case.
Plaintiff contends that equitable tolling
is warranted in the instant action because,
“being that [his] equilibrium was off” from
the alleged December 20, 2007 assault,
9

lawsuit within the three-year period after the
alleged assault. For these reasons, equitable
tolling does not apply as to plaintiff’s claims
against the Suffolk defendants. Accordingly,
plaintiff’s claims against the Suffolk
defendants are barred under the applicable
three-year statute of limitations and hereby
dismissed.

Station, 370 F. App’x 244, 245 (2d Cir.
2010) (“[U]nder the doctrine of equitable
tolling, a court may, under compelling
circumstances, make narrow exceptions to
the statute of limitations in order to prevent
inequity.” (quoting In re U.S. Lines, Inc.,
318 F.3d 432, 436 (2d Cir. 2003)) (internal
quotation marks omitted)).

3.

Here, plaintiff has failed to provide any
grounds warranting equitable tolling. See
Fairley, 2011 WL 1002422, at *5; Irizarry,
2002 WL 31760240, at *4. Plaintiff’s
allegations do not suggest an extraordinary
prevention of his ability to exercise his
rights, nor that it was impossible for him to
learn about his cause of action. Indeed,
regarding this latter point, plaintiff’s
complaint makes clear that, as of December
21, 2007, he was in possession of all of the
facts concerning his alleged deliberate
indifference claim against the Suffolk
defendants. Furthermore, plaintiff sets forth
no facts concerning these defendants that
post-date the December 20-21, 2007 period.
In addition, plaintiff also does not allege any
fraudulent concealment on the part of the
defendants. See Pearl, 296 F.3d at 82
(equitable tolling for a federal cause of
action may be appropriate where “fraudulent
concealment of a cause of action [ ] has ‘in
some sense accrued earlier’” (quoting
Pinaud v. Cnty. of Suffolk, 52 F.3d 1139,
1156 (2d Cir. 1995))). Plaintiff’s assertions
of an unbalanced equilibrium or “mental[]
misrepresent[ation] in an equitable conduct”
are insufficient justifications as to why
plaintiff failed to file by the requisite
limitations period. Cf. Ormiston v. Nelson,
117 F.3d 69, 72 n.5 (2d Cir. 1997) (“Mere
ignorance of the law is . . . insufficient to
delay the accrual of the statute of
limitations.”).
Plaintiff’s
conclusory
assertion that his “equilibrium was off” from
the alleged December 2007 assault does
nothing to explain why he could not file his

Application as to Medical
Defendants

A fair reading of the complaint reveals
the following allegations against the medical
defendants: (1) medical personnel were
deliberately indifferent to plaintiff’s serious
medical needs in violation of his Eighth
Amendment right to be free from cruel and
unusual punishment, and (2) medical
personnel are liable for medical malpractice
under New York law. The Court addresses
each in turn.
a. Deliberate Indifference Claim
Plaintiff alleges that the medical
defendants violated “an act of . . . medical
depriving [plaintiff] of attention for aid of
[the alleged police assault] that was brought
against [plaintiff].” (Compl. ¶ 34.)
As a threshold matter, there is no
allegation of state action. See Ciambriello v.
Cnty. of Nassau, 292 F.3d 307, 323 (2d Cir.
2002) (“In order to state a claim under
§ 1983, a plaintiff must allege that he was
injured by either a state actor or a private
party acting under color of state law.”);
Green v. Maraio, 722 F.2d 1013, 1016 (2d
Cir. 1983) (stating “a claim for relief under
42 U.S.C. § 1983 only need allege that some
person acting under color of state law
deprived the claimant of a federal right”).
Here, North Shore is a private, domestic notfor-profit New York State corporation.
Plaintiff alleges no facts suggesting that
North Shore, Dr. Auerbach, or the treating
10

would be time-barred. Plaintiff’s only
allegations against the specifically-named
medical defendants concern the treatment he
received on December 21, 2007. That is,
plaintiff references no other medical
treatment by these medical defendants
following the December 21, 2007 incident.
Plaintiff delivered his complaint in the
instant case to prison authorities on February
20, 2011. He, therefore, missed the requisite
statutory-of-limitations
deadline
by
approximately two months. For these
reasons, plaintiff’s deliberate indifference
claim against the medical defendants fails.
See Fairley, 2011 WL 1002422, at *3.

physicians may be deemed to have acted
under color of state law at the time of
plaintiff’s December 21, 2007 treatment.
Nor do the pleadings suggest that North
Shore’s actions – via Dr. Auerbach and the
other co-defendant treating physicians –
were the product of “some official [state]
policy.” Bektic-Marrero v. Goldberg, 850 F.
Supp. 2d 418, 433 (S.D.N.Y. 2012) (“[T]o
state a § 1983 claim against a private entity,
a plaintiff must allege that an action
pursuant to some official policy caused the
constitutional deprivation.”).
Although plaintiff alleges that Dr.
Auerbach and the other treating doctors
were instructed by the transporting officers
to “clean [plaintiff’s] face as best they could
and only administer [plaintiff] whatever
medical attention that is minimal . . . [a]nd
don’t take any X-rays or Photographs of
him,” (Compl. ¶ 17), such conclusory
assertions are insufficient to set forth an
official policy on the part of the Suffolk
County Police Department pursuant to
which – so the argument would go – officers
were required to instruct privately owned
hospitals to administer quick and minimal
medical evaluations whenever an arrestee
was brought in. See Roy v. New York, No.
07-CV-0340(DLI), 2007 WL 602303, at *1
(E.D.N.Y. Feb. 20, 2007) (stating a “finding
of factual frivolousness is appropriate when
the facts alleged rise to the level of the
irrational or the wholly incredible, whether
or not there are judicially noticeable facts
available to contradict them” (quoting
Denton v. Hernandez, 504 U.S. 25, 33
(1992)) (internal quotation mark omitted)).
Plaintiff also never alleges that, even if this
were such an official policy of the Suffolk
defendants, the treating physicians actually
abided by it.

b. Continuing Violation
The only alleged continuing violation
that the Court derives from the pleadings is,
again, plaintiff’s assertion (contained in his
amended complaint) that on June 14, 2011,
Dr. O’Kefee performed improper corrective
oral surgery on plaintiff. In plaintiff’s own
words: “the deliberate indifference that it
has taken the duration of approximately four
(4) years to come to this far, and corrective
surgery not be fully completed. Yet this to
me is another day that I have to live with the
disfigurement of the after effects of the
unjustly assault on me.” (Am. Compl. ¶ 8.)
In essence, plaintiff claims that a continuing
deliberate indifference violation has
occurred because over four years after the
alleged December 20, 2007 assault, plaintiff
needed oral surgery. This is insufficient for
purposes of surmounting the applicable time
bar.
Plaintiff fails to explain how any of the
alleged medical acts performed by the
medical defendants in December 2007
correlate to those undertaken by non-party
Dr. O’Kefee in June 2011. Again, plaintiff
alleges no relationship between the doctors
(whether
personal
or
professional),
establishes no reason as to why they should

However, even assuming arguendo that
state action could be alleged with respect to
the medical defendants, the federal claims
11

evidencing such a policy, his Section 1983
claim against the medical defendants is
untimely.

not be viewed as independent actors, and
makes no allegation that the 2007 doctors
somehow conspired or collaborated with the
2011 doctor to deny plaintiff adequate
medical care – as part of an official policy or
otherwise. The most plaintiff presents is that
his June 2011 treatment allegedly was
necessitated by the same incident as the
December 2007 treatment. As previously
stated, separate and distinct instances of
medical care (one of which falls outside of
the three year statutory framework) do not
establish either a policy of deliberate
indifference or non-time-barred acts taken in
furtherance of such a policy. See Shomo,
579 F.3d at 181 (stating the continuing
violation doctrine does not apply where
plaintiff only challenges conduct “that is a
discrete unlawful act” (citing Morgan, 536
U.S. at 117)); id. at 182 (to assert a
continuing violation, plaintiff must “allege
both the existence of an ongoing policy of
[deliberate indifference to his or her serious
medical needs] and some non-time-barred
acts taken in furtherance of that policy”
(quoting Harris, 186 F.3d at 250) (alteration
in original)). They also do not suggest a
single yet ongoing practice of deliberate
indifference on the part of the medical
defendants. Cf. Port Auth. Police Asian Jade
Soc’y of N.Y. & N.J., Inc. v. The Port Auth.
of N.Y. and N.J., 681 F. Supp. 2d 456, 46566 (S.D.N.Y. 2010) (holding that various
acts that occurred over different days could
be construed as “a single, ongoing
unlawful . . . practice” where they related to
and evidenced a discriminatory policy, but
noting that Supreme Court precedent has
made clear “that a series of related but
ultimately discrete acts could not be treated
as a single unlawful . . . practice (emphasis
added) (citing Morgan, 232 F.3d at 114)).

c. Equitable Tolling
The Court also has considered the issue
of equitable tolling. Plaintiff’s equitable
tolling argument does not differ from that
previously stated with respect to the County
defendants. In brief, plaintiff alleges that the
equitable tolling doctrine applies because his
“equilibrium was off” due to the alleged
December 20, 2007 incident, (Compl. ¶ 42),
and he “was mentally misrepresented in an
equitable conduct which would allow [him]
to induce a commencement in a most timely
manner,” (id.), which prevented him from
timely filing his complaint. For the reasons
previously set forth, such allegations are
insufficient for purposes of applying the
equitable tolling doctrine.
As discussed supra, plaintiff sets forth
no compelling circumstances that would
support this Court applying a doctrine that
typically is only exercised sparingly and on
limited occasions. See Irwin v. Dep’t of
Veterans Affairs, 498 U.S. 89, 96 (1990).
The pleadings suggest no fraud on the part
of the defendants in trying to conceal the
alleged wrong. See Keating, 706 F.2d at
381. As of December 21, 2007, plaintiff was
aware of all facts concerning his alleged
deliberate indifference claim against medical
defendants. Moreover, plaintiff sets forth no
facts as to these specific medical defendants
that post-date the December 20-21, 2007
period. Plaintiff’s assertions of an
unbalanced equilibrium or “mental[]
misrepresent[ation] in an equitable conduct”
are insufficient justifications as to why
plaintiff failed to file by the requisite
limitations period. Cf. Ormiston, 117 F.3d at
72 n.5. Thus, the equitable tolling doctrine is
inapplicable to plaintiff’s claims against the
medical defendants. Accordingly, his federal

Because plaintiff fails to show either an
ongoing unlawful policy of deliberate
indifference or non-time-barred acts
12

2011 after he was transferred to an upstate
prison.

claims against the medical defendants are
barred under the three-year statute of
limitations period and dismissed.

SO ORDERED.
4. State Law Claims
In light of the dismissal of plaintiff’s
federal claims, the Court, in its discretion,
declines
to
exercise
supplemental
jurisdiction over any state law claims that
plaintiff may be attempting to assert. See 28
U.S.C.
§ 1367(c)(3)
(providing
that
supplemental jurisdiction may be declined
over a state claim if “the district court has
dismissed all claims over which it has
original jurisdiction”); see also Pitchell v.
Callan, 13 F.3d 545, 549 (2d Cir. 1994)
(“[I]t is axiomatic that a court should decline
to exercise jurisdiction over state-law claims
when it dismisses the federal claims prior to
trial.”).

______________________
JOSEPH F. BIANCO
United States District Judge
Dated: February 13, 2013
Central Islip, NY
***
Plaintiff is proceeding pro se, 09A6400,
Cape Vincent Correctional Facility, 36560
Route 12E P.O. Box 739 Cape Vincent, NY
13618. The attorneys for the defendants are
Arlene S. Zwilling, Suffolk County
Attorney, P.O. Box 6100 H. Lee Dennison
Building Fifth Floor, 100 Veterans
Memorial Highway Hauppauge, NY 117880099; Gillian C. Thomas, Heidell, Pittoni,
Murphy & Bach 99 Park Avenue New York,
NY 10016, Paul Haberman, Heidell, Pittoni,
Murphy & Bach 10 East Street 40th Street
Suite 1300 New York, NY 10016.

III. CONCLUSION
For the foregoing reasons, defendants’
motions to dismiss the federal claims are
granted. The Court declines to exercise
supplemental jurisdiction over any state law
claims that plaintiff is attempting to assert,
and such state claims are dismissed without
prejudice. Given that plaintiff’s federal
claims have been dismissed as time-barred,
plaintiff’s cross-motion for judgment on the
pleadings is denied. 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; therefore, in forma pauperis
status is denied for purposes of an appeal.
See Coppedge v. United States, 369 U.S.
438, 444-45 (1962).
The Court will conduct a telephone
conference on February 22, 2013, at 1:15
p.m. to address plaintiff’s motion to amend
the complaint in connection with the alleged
medical/dental malpractice that occurred in
13