Smith v. Russo et al

Filing 64

DECISION AND ORDER: It is ORDERED that Defendant's objections to the Report-Recommendation of Magistrate Judge Dancks, dkt. # 59 , are hereby OVERRULED in part and SUSTAINED in part. The Report-Recommendation, dkt. # 58 , is hereby ACCEPTE D and ADOPTED insofar as Magistrate Judge Dancks concludes that Defendant's motion for summary judgment, dkt. # 51 , should be DENIED. The Court will REMAND the case to the Magistrate Judge for briefing and a Report- Recommendation on the iss ue of whether the doctrine of fraudulent concealment applies to any claims Plaintiff may have for his incarceration between June 8, 2012 and June 17, 2013. Signed by Senior Judge Thomas J. McAvoy on September 23, 2019. (Copy served via regular mail)(rep)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________________
ANDREW SMITH,
Plaintiff,
v.

9:17-CV-244
(TJM/TWD)

PAT RUSSO, et al.,
Defendants.
___________________________________________
Thomas J. McAvoy,
Sr. U.S. District Judge

DECISION & ORDER
Plaintiff filed this action, brought pursuant to 42 U.S.C. § 1983, alleging that
Defendants violated his rights while confining him at the Rensselaer County Correctional
Facility. After initial review by the Court, the only claim that remains is Plaintiff’s allegation
that Defendant Dr. Russell Fricke violated Plaintiff’s constitutional rights by failing to treat
his prostate condition. Dr. Fricke filed a motion for summary judgment. See dkt. # 51.
The Court referred the motion to the Hon. Thérsè Wiley Dancks, United States Magistrate
Judge, for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(c). The Report-Recommendation, dated August 7, 2019, recommends that the Court
deny the Defendant’s motion. See dkt. # 58.
Defendant objected to the Report-Recommendation. When a party objects to a
magistrate judge’s Report-Recommendation, the Court makes a “de novo determination of
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those portions of the report or specified proposed findings or recommendations to which
objection is made.” See 28 U.S.C. § 636(b)(1). After such a review, the Court may
“accept, reject, or modify, in whole or in part, the findings or recommendations made by
the magistrate judge. The judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions.” Id. The Court will therefore be able to evaluate
the summary judgment motion and Plaintiff’s response to it.
Having reviewed the record de novo and having considered the other issues raised
in the Plaintiff’s objections, this Court has determined to accept and adopt the
recommendation of Magistrate Judge Dancks for the reasons stated in the ReportRecommendation, with one additional instruction. The Court agrees that facts exist
sufficient for a jury to conclude that Dr. Fricke was deliberately indifferent to Plaintiff’s
serious medical need. Magistrate Judge Dancks also addressed the issue of whether
Plaintiff’s claims for conduct between June 8, 2012 and June 17, 2013 were time-barred.
Magistrate Judge Dancks found that the doctrine of fraudulent concealment could apply
and provide equitable tolling of the statute of limitations for this period. Explaining that
doctrine and noting that Plaintiff–proceeding pro se–had not raised the defense,
Magistrate Judge Dancks concluded that:
Dr. Fricke has not presented any evidence regarding the alleged fraudulent
concealment in this case, nor has he discussed relevant case law. Accordingly, the
Court recommends that Defendant’s motion for summary judgment dismissing
Plaintiff’s claims against Dr. Fricke which predate March 3, 2014, as time-barred be
denied, based upon the existence of disputed issues of fact surrounding when
Plaintiff had reason to know of his injury and whether Dr. Fricke should be
precluded under the fraudulent concealment doctrine from asserting a defense
based on the statute of limitations.
Report-Recommendation, dkt. # 58, at 29.
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Defendant objected to this conclusion and of fered legal and factual argument on
the issue. The Plaintiff has not offered any argument, since the Magistrate Judge raised
the issue sua sponte in her Report-Recommendation. While the Court agrees that a
disputed issue of fact exists over the question of whether Defendant engaged in deliberate
indifference to a serious medical need at a time within the statute of limitations, the Court
concludes that the issue of whether Defendant can be liable for conduct outside the threeyear limitations period needs fuller examination. The Magistrate Judge was unable to
consider the Defendant’s arguments on the tolling issue before offering her conclusions on
the matter as the Defendant failed to address the issue at all. The Court concludes that
the question would be best addressed after the parties have provided additional argument.
The Court will therefore remand the case to the Magistrate Judge to permit the parties to
submit briefing on the issue of equitable tolling and fraudulent concealment.
It is therefore ORDERED that Defendant’s objections to the ReportRecommendation of Magistrate Judge Dancks, dkt. # 59, are hereby OVERRULED in part
and SUSTAINED in part. The Report-Recommendation, dkt. # 58, is hereby ACCEPTED
and ADOPTED insofar as Magistrate Judge Dancks concludes that Defendant’s motion for
summary judgment, dkt. # 51, should be DENIED. The Court will REMAND the case to
the Magistrate Judge for briefing and a Report-Recommendation on the issue of whether
the doctrine of fraudulent concealment applies to any claims Plaintiff may have for his
incarceration between June 8, 2012 and June 17, 2013 .
IT IS SO ORDERED.
Dated: September 23, 2019

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