Ford v. Pathak et al
ORDER that plaintiff's request to proceed in forma pauperis is Granted; that the complaint is dismissed with prejudice and that leave to appeal to the Court of Appeals as a poor person is denied. Signed by Hon. Michael A. Telesca on 2/18/15. (SG)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DR. PATHAK KAMAL-ELMIRA CORR. FACILITY,
Plaintiff, Richard Ford, currently an inmate at the Attica
Correctional, filed this pro se action under 42 U.S.C. § 1983
correctional facilities at which plaintiff had been incarcerated,
denied him adequate medical care in 2004 in response to his
complaints of a “stabbing” pain he suffered in his face caused by
a stabbing injury at the Clinton Correctional Facility in 2004.
(See Docket No. 1, Complaint; Docket No. 6, Order (“Order”), at 1.)
Specifically, plaintiff alleged that four of the five defendant
physicians--Dr. Lee (Clinton), Dr. Taylor (Southport), Dr. Rehaney
(Clinton) and Dr. Danziger--had neglected to follow routine medical
care procedures and treatment when examining his face, had failed
to locate the metal object left in his face as a result of the
stabbing and had allowed the object to remain embedded in his face
for such a lengthy period of time that it “traveled” to a more
dangerous spot on his face.
(See Complaint, Claims 1-4; Order, at
With respect to the fifth physician, Dr. Kamal, plaintiff
alleged that Dr. Kamal performed surgery to remove the foreign
object from his face, but caused nerve damage because he believed
Dr. Kamal failed to follow proper medical protocol.
Fifth Claim; Order, at 4-5.)
The Court granted plaintiff permission to proceed in forma
pauperis but because all of the alleged acts (or failures to act)
occurred on specific dates, all of which fell between June 1, 2004
and November 11, 2004, the Court directed plaintiff to show cause
why his complaint should not be dismissed on the basis of the
statute of limitations. (Order, at 6-7 (citing Abbas v. Dixon, 480
F.3d 636, 640 (2d Cir. 2007) (citation omitted.)
The Order noted
specifically that plaintiff’s response should “included any grounds
plaintiff may wish to present regarding whether there is any basis
to equitably toll the statute of limitations.”
(Id., at 7 (citing
Abbas, 480 F.3d at 640-42.)
Upon review of plaintiff’s response to the Order (Docket No.
7, Response), the Court finds that plaintiff has not established
limitations and, accordingly, this action must be dismissed.
Plaintiff’s Response first summarizes some of the allegations
defendant physicians, and then claims that he was first advised by
a “paralegal” in the law library at Southport that he “could put in
a 1983 claim as long as [he] basically receive [d] the [New York]
[C]ourt of [C]laim[s] decision and that [he] put [his] notice of
appeal within thirty days of the time limitation to submit . . .
the notice of appeal kept [his] claim active.”
Plaintiff then appears to claim that he was later
prohibited him from filing a complaint in federal court while his
case was “playing out” in the Court of Claims.1
(Id., “prt.” 2.)
Petitioner claims that he his unfamiliar with the law and he only
followed the advice given by the paralegal at Southport.
To be entitled to equitable tolling, a petitioner must show
“that extraordinary circumstances prevented him from filing his
petition on time” and that he “acted with reasonable diligence
throughout the period he seeks to toll.”
Smith v. McGinnis, 208
F.3d 13, 17 (2d Cir.) (per curiam), cert. denied, 531 U.S. 840
(2000); see also Doe v. Menefee, 391 F.3d 147, 159 (2d Cir.2004)
(noting that, under federal law, equitable tolling is limited to
As noted by the Court previously in its prior Order, at 7, n.2, plaintiff
had referred to an action involving the same facts that are the subject of the
instant matter that he filed in the New York Court of Claims in December, 2005
and which was dismissed by the Court of Claims in December, 2011. Plaintiff had
stated that his appeal from the dismissal was pending in the Appellate Division
of the New York Supreme Court. The Court of Claims decision to which plaintiff
referred to was Ford v. The State of New York, #2011-049-108, Claim No. 111756,
issued by the Court of Claims on December 22, 2011, and dismissed plaintiff’s
medical malpractice claim, which was based on his allegation that one of the
defendants herein, Dr. Kamal, performed surgery on his face which resulted in
recurring numbness and pain.
“rare and exceptional circumstances”.) (citation omitted)). Courts
in this Circuit have consistently rejected claims of equitable
tolling based on a prisoner’s ignorance of law or reliance on other
inmates for assistance.
See Bowman v. Walsh, 2007 WL 2815711, at
*2 (E.D.N.Y. Sept. 25, 2007) (collecting cases); see also United
States v. Cicero, 214 F.3d 199, 204-05 (D.C.Cir.2000) (denying
equitable tolling where petitioner had entrusted the processing of
his legal documents to a jailhouse lawyer); Urena v. Brown, 2007 WL
3284646, at *2 (S.D.N.Y. Nov. 5, 2007) (rejecting petitioner's
claim that he faced an “extraordinary circumstance” warranting
equitable tolling because he received erroneous advice from an
inmate legal library clerk); Huang v. United States, 2003 WL
22272584, at *2-3 (S.D.N.Y. Oct. 2, 2003) (noting that the courts
in the Southern District have “unanimously found” that a “lack of
“[Inmate] had ultimate responsibility for managing the
preparation and timely filing of his habeas petition, and neither
his entrusting some aspect of it to another person, or his own
Hamilton v. Warden of Clinton Correctional Facility, 573 F.Supp.2d
779, 780-81 (S.D.N.Y. July 1, 2008) (citing Menefee, 391 F.3d at
175, 177; Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir.2001)).
Accordingly, plaintiff’s complaint is barred by the applicable
statute of limitations, see Order, at 5-6, and the complaint is
dismissed with prejudice.
For the reasons discussed above, the complaint is dismissed
with prejudice on the basis that it is barred by the statue of
Plaintiff is forewarned that his right to pursue
further relief in federal court at public expense will be greatly
curtailed if he has three actions or appeals dismissed under the
provisions of 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
28 U.S.C. § 1915(g).
The Court hereby certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this Order would not be taken in
good faith, and leave to appeal to the Court of Appeals as a poor
person is denied.
Coppedge v. United States, 369 U.S. 438
Further requests to proceed on appeal as a poor person
should be directed, on motion, to the United States Court of
Appeals for the Second Circuit, in accordance with Rule 24 of the
Federal Rules of Appellate Procedure.
IT HEREBY IS ORDERED, that plaintiff's request to proceed in
forma pauperis is granted;
FURTHER, that the complaint is dismissed with prejudice; and
FURTHER, that leave to appeal to the Court of Appeals as a
poor person is denied.
S/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
February 18, 2015
Rochester, New York
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