a claim against it because it fails to allege "an officially
sanctioned municipal custom or policy." Second, the County
maintains that virtually all of Gil's claims are timebarred. The
County also claims that, at a minimum, Gil's claim for punitive
damages against it must be dismissed.
1. Failure to allege a municipal custom or policy
To demonstrate an unconstitutional denial of medical care, a
plaintiff must show that the defendants were deliberately
indifferent to a serious medical injury. Estelle v. Gamble,
429 U.S. 97, 103-04, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A
plaintiff seeking to prove a claim of deliberate indifference to
serious medical needs must meet a two-pronged test comprised of
both an objective and a subjective component. See Wilson v.
Seiter, 501 U.S. 294, 298, 111 S.Ct. 2321, 115 L.Ed.2d 271
(1991). The objective component requires that the plaintiff
establish that his medical need was serious. See Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). The subjective
component requires that the plaintiff establish that the
defendants acted with a sufficiently culpable state of mind.
A prisoner's medical need is "serious" where the condition for
which he seeks treatment may produce death, degeneration, or
extreme pain. Covington v. Westchester County Jail, No. 96
Civ. 7551, 1997 WL 580697, at *2 (S.D.N.Y. Sept. 18, 1997); see
also Chance, 143 F.3d at 70203. The complaint alleges both
degeneration and extreme pain, and the County does not dispute
that Gil has sufficiently pled a serious medical need.
An individual defendant acts with a sufficiently culpable
state of mind where he knows of and disregards a prisoner's
serious medical needs or he consciously disregards a substantial
risk of serious harm. Chance, 143 F.3d at 703. "Even one
isolated failure to treat, without more . . . may in fact rise
to the level of a constitutional violation if the surrounding
circumstances suggest a degree of deliberateness, rather than
inadvertence, in the failure to render meaningful treatment."
Brown v. Coughlin, 758 F. Supp. 876, 882 (S.D.N.Y. 1991).
To establish liability on the part of the County, however, Gil
must demonstrate that his injury resulted from a municipal
"custom" or "policy." Monell v. Dep't of Soc. Servs.,
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). A "policy" for
the purposes of municipal liability need not be explicit; it may
arise from "a failure to adequately train, supervise, evaluate,
or discipline subordinates," Scott v. Abate, No. CV-93-4589,
1995 WL 591306, at *9 (E.D.N.Y. Sept. 27, 1995).
The County correctly points out that Gil has not explicitly
alleged the existence of a custom or policy that resulted in his
injuries. The County also contends, citing Thurman v. City of
Torrington, 595 F. Supp. 1521 (Conn. 1984), that no such policy
can be inferred from the facts alleged in the amended complaint
because Gil has not alleged deliberate indifference to anyone's
medical needs other than his own. In Thurman, however, the
court, while noting the general rule that "a plaintiff must
typically point to facts outside his own case" to support an
allegation of a municipal policy, found that allegations of a
series of acts and omissions by several police officers over a
period of months established "a pattern . . . evidenc[ing]
deliberate indifference" to the plaintiffs constitutional
rights, and held that an ongoing pattern of deliberate
indifference "raises an inference of `custom' or `policy' on the
part of the municipality." 595 F. Supp. at 1530.
Gil has alleged a series of acts and omissions by several
state actors over a period of seven months by which he was
denied access to doctors and treatment despite his repeated
requests and assertedly obvious pain. The denial of treatment
allegedly persisted even in the face of orders from
the judge presiding over Gil's criminal case. It was only when
Gil was transferred to the custody of the State of New York that
his condition was properly diagnosed and treated, but by then
his heel had been permanently damaged. These allegations
"clearly set out a pattern from which one might infer at least
deliberate unconcern for [Gil's] apparent suffering." Brown v.
Coughlin, 758 F. Supp. 876, 883 (S.D.N.Y. 1991). At the pleading
stage, therefore, these allegations are sufficient to support an
inference of municipal "custom" or "policy." See id.; Thurman,
595 F. Supp. at 1530.
The County seeks also dismissal of the complaint on the
grounds that any "custom" or "policy" involving medical care at
the Westchester County Jail cannot be attributed to it because
it contracted with EMSA to provide for inmates' medical needs.
However, a municipality's duty to provide medical care to
inmates is nondelegable and is not absolved by contracting with
a third party to provide care. Covington v. Westchester County
Jail, No. 96 Civ. 7551, 1998 WL 26190, at *3 (S.D.N.Y. Jan. 26,
1998) (citing Ancata v. Prison Health Servs., Inc.,
769 F.2d 700, 705 (11th Cir. 1985)).
In sum, the allegations of the amended complaint support an
inference that a "custom" or "policy" of Westchester County
caused Gil's injuries. Accordingly, the County's motion to
dismiss the complaint for failure to allege a County "custom" or
"policy" is denied.
2. The Timeliness of Gil's Action
Section 1983 claims based on injuries incurred in New York are
governed by New York's statute of limitations for general
personal injury actions, which provides that such actions must
be commenced within three years. Owens v. Okure, 488 U.S. 235,
237-39, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); see also N.Y.
C.P.L.R. § 214(5). Medical malpractice claims in New York must
be brought within two years and six months of the act,
omission, or failure complained of or, in the case of continuous
treatment, within two years and six months of the last
treatment. N.Y. C.P.L.R. § 214-a.
"A pro se action is deemed commenced when it is received by
the court as opposed to when it is formally filed." Espinal v.
Coughlin, 98 Civ. 2579, 1999 WL 387435, at *3 (citing Toliver
v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988)).
Accordingly, the County claims that for purposes of the statute
of limitations, this action was commenced on February 25, 1999,
when the Pro Se Office received the complaint that was assigned
this docket number — 99 Civ. 3210. Therefore, contends the
County, all of Gil's claims are time barred — since they all
accrued more than three years prior to February 25, 1999 — with
the exception of any Eighth Amendment claim asserted pursuant to
42 U.S.C. § 1983 that accrued after February 25, 1996.
In his response, Gil emphasizes the November 19, 1997, date of
his original complaint docketed as 98 Civ. 3093, states that he
does not know why it was dismissed, and notes that he filed the
same complaint in February 1999, which was then docketed as this
action. Affirmation With Memorandum in Response to Defendant's
Motion to Dismiss Amended Complaint ¶¶ 34. Gil also points out
that his two shower accidents took place less than two years and
six months before he filed the complaint in 1997. Id. ¶ 5.
Construing Gil's papers to raise the strongest arguments they
suggest, see Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d
Cir. 1986), the Court interprets Gil's submission as: (1) a
request for relief from the judgment in 98 Civ. 3093 pursuant to
Fed.R.Civ.P. 60(b)(6) in order to permit Gil to have the benefit
of the November 24, 1997, filing date in that action; and (2) an
argument that the statutes of limitations were equitably tolled
during the pendency of 98 Civ. 3093.
Rule 60(b)(6) of the Federal Rules of Civil Procedure permits
a court to
relieve a party from a final judgment for any reason — other
than those enumerated in subsections 1 through 5 of the rule —
"justifying relief from the operation of the judgment." The rule
"confers broad discretion on the trial court to grant relief
when `appropriate to accomplish justice.'" Matarese v.
LeFevre, 801 F.2d 98, 106 (2d Cir. 1986) (quoting Int'l
Controls Corp. v. Vesco, 556 F.2d 665, 668 n. 2 (2d Cir.
1977)); see also 7 Moore's Federal Practice, ¶ 60.27 at
Although relief pursuant to Rule 60(b)(6) is generally granted
only upon a showing of exceptional circumstances or undue
hardship, "a pro se litigant . . . `should not be impaired by
the harsh application of technical rules.'" Major v. Coughlin,
No. 94 Civ. 7572, 1997 WL 391121, at *2 (S.D.N.Y. July 11, 1997)
(quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Pro
se litigants are not, however, excused from the requirement that
they produce "highly convincing" evidence to support a
Rule 60(b) motion. Id.
The combination of factors present here warrant relief
pursuant to Rule 60(b)(6). First, Gil neither speaks nor writes
English. (Compl. at 2) Second, the County has made no argument
that litigating this case now would unfairly prejudice it in any
way. Moreover, Gil's claims are similar to ones found
meritorious in other cases, see, e.g., Brown v. Coughlin,
758 F. Supp. 876 (S.D.N.Y. 1991), and the May 1998 dismissal for
failure to provide the Prisoner Authorization Form — which Gil
remedied in February 1999 — may effectively bar Gil from any
recovery on his claims. Considering all of these factors and
"the preference for resolving claims on their merits," the
judgment in 98 Civ. 3093 should be vacated. Major, 1997 WL at
391121, at *3-*4.
Because the Court grants Gil's request for relief from the
judgment in 98 Civ. 3093, that portion of the County's motion to
dismiss the complaint that relies on the February 25, 1999,
commencement date of this action will be denied as moot. Action
98 Civ. 3093 shall be reopened, reassigned to this Court, and
consolidated with this action for all purposes. Accordingly, the
Court need not decide whether Gil would be entitled to equitable
tolling for the purposes of pursuing his action in this case
without the benefit of the filing date in 98 Civ. 3093.
3. Punitive damages against a municipality
To the extent Gil has asserted a claim for punitive damages
against the County, it is dismissed with prejudice. Punitive
damages are not available in a section 1983 action against a
municipality except in an "extreme situation where the taxpayers
are directly responsible for perpetrating an outrageous abuse of
constitutional rights." City of Newport v. Fact Concerts,
Inc., 453 U.S. 247, 267 n. 29, 101 S.Ct. 2748, 69 L.Ed.2d 616
(1981); Ciraolo v. City of New York, 216 F.3d 236, 240 (2d
Cir. 2000). This is not such a case.
B. Personal Jurisdiction
Gil served the amended complaint on the County by mailing a
copy to the offices of the Westchester County Attorney. This
service fails to comply with the requirements of Fed.R.Civ.P.
4(j) for service upon a municipality. Gil contends that he
requested service of process by the United States marshal
pursuant to Fed.R.Civ.P. 4(c) in his motion for leave to file an
amended complaint, and that he relied in good faith upon the
Marshals Service to effectuate service.
The amended complaint, however, was never received by the
Clerk of Court and summonses naming the County and EMSA were
therefore never issued. Thus, Gil's reliance on the Marshals
Service was misplaced.
Gil also contends, however, that he has made good faith
efforts to serve all of the defendants in this action and that
the County has not been prejudiced by any
ineffective service. He requests an order requiring the Clerk of
Court to issue a summons and directing the Marshals Service to
effectuate service, which the Court construes as a request to
extend the time limit for service of process pursuant to
Because Gil has made good faith efforts to effectuate service,
he will be afforded the opportunity to properly serve the
amended complaint. In addition, this action will be referred to
the Pro Bono Panel for appointment of counsel in accordance with
its procedures. Gil shall have 150 days from the date of this
opinion or 90 days from the date of the appearance of counsel,
whichever is less, to effectuate service.
For the reasons set forth above, Westchester County's motion
to dismiss this action is granted with prejudice as to any claim
for punitive damages against it and denied in all other
respects. Gil is granted relief from the final judgment in 98
Civ. 3093; that action shall be reopened, reassigned to this
Court, and consolidated with this action for all purposes.
Appropriate orders will issue concurrently with this opinion.