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April 1, 2005.

JOSE J. SHOMO, Plaintiff,
CITY OF NEW YORK, et al., Defendants.

The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

Plaintiff Jose J. Shomo, a pro se inmate in the custody of the Department of Correctional Services of the State of New York, brings this suit pursuant to 42 U.S.C. § 1983, seeking compensatory damages in the amount of $100 million relating to alleged violations of the First, Fourth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution by thirteen named defendants and 5 unnamed defendants. Plaintiff bases his claims on alleged deliberate indifference to his serious medical needs relating to his upper body paralysis and nervous system afflictions, assault, and destruction of personal property. Defendants have filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that the action is barred by plaintiff's failure (1) to file his claim within the statute of limitations; (2) to file a notice of claim to preserve state law claims; (3) to allege personal involvement on the part of certain defendants; (4) to properly state a deliberate indifference to medical needs claim; (5) to properly state a destruction of property claim; and (6) because of certain defendants' qualified immunity. I address such assertions by defendants as are necessary to resolve this motion. I. Background

From September 20, 1999 to January 4, 2001, Plaintiff was in the custody of the New York City Department of Corrections (DOC). Plaintiff alleges that during that time various corrections officers and medical care providers were responsible for numerous and continuous incidences of deliberate indifference to his medical needs, assault, and destruction of property. Plaintiff's allegations are summarized below.

  A. The Deliberate Medical Indifference Allegations

  On his first day in custody, September 20, 1999, Shomo received a physical examination from Dr. Christen Pedestu, who found that Shomo suffered from right arm paralysis and limited use of his left arm. See Compl., ¶ 30. Dr. Pedestu also noted that "Plaintiff was receiving Health Home Attendants Services while he was on the streets." Compl., ¶ 31. Accordingly, Dr. Pedestu recommended that the DOC admit Shomo to the North Infirmary Command (NIC). Id. Over the next five months, Shomo met with a barrage of doctors, including defendants Dr. Shahid Nawaz, ¶¶ 35, 41; Dr. Saroja Singha,*fn1 ¶¶ 39, 40, 78, 80; Dr. Joy Meyers, ¶¶ 40, 44-47, 71; Dr. Marie Francois, ¶ 52; Dr. Rameem Seegobin, ¶¶ 67, 71; and various unnamed doctors.

  Plaintiff Shomo's allegations relate that he suffered pain and paralysis in his arms, making it difficult or impossible to perform activities of daily living (ADLs) such as eating, dressing, grooming, toileting, or bathing. See, e.g., Compl., ¶¶ 33, 42-46. Medical and security staff at the DOC refused to provide assistance with those activities, despite Plaintiff's repeated requests. See e.g., Compl., ¶¶ 42-46, 50, 51, 54, 59, 66. Further, Plaintiff alleges that he was improperly housed with the general population of inmates during his stays at various detention facilities, when he should have been admitted to infirmary custody because of his medical condition. See, e.g., Compl., ¶¶ 33, 49, 51, 56, 62-66. As a result of these deprivations and improper treatment, Plaintiff states that he experienced "muscle spasms, migraine headaches, severe back and neck pain, as well as emotional trauma." Compl., ¶ 99. In particular, Shomo alleges that since DOC staff would not assist with him his ADLs, he was forced to pay other inmates to perform those activities for him or "remain dirty, stinking, unbathed, etc." Compl., ¶ 51. See also Compl., ¶ 97.

  Shomo also alleges that an injury to his foot went untreated by staff for a prolonged period of time, causing unnecessary pain and requiring Plaintiff to hop around on one foot for seven weeks while his foot healed. See Compl., ¶¶ 78-81, 101. Because medical staff refused to treat his foot, and because staff refused to provide Plaintiff with a wheelchair, Plaintiff allegedly fell down several times, causing injury to his left shoulder and ribs, as well as emotional trauma. See Compl., ¶ 102.

  Finally, Plaintiff alleges he suffered injury to his left arm as the result of corrections officers' refusal to obey instructions provided by the medical staff at the DOC. Following a court appearance on October 7, 1999,*fn2 Corrections Officer Pelite indicated that he intended to handcuff Shomo to another inmate for the return trip to Rikers Island detention facility. See Compl., ¶ 38. Plaintiff then explained to Pelite that he carried medical instructions describing how to handcuff him. Officer Pelite then notified the area supervisor, "Captain Swartz."*fn3 Id. According to the complaint, Captain Swartz said "he didn't give a hoot" what the medical instructions said, that it was too late to call special transportation, NIC or anyone else. Id. He then ordered Shomo to be handcuffed to the other inmate. Id. While handcuffed to the other inmate, Shomo began to suffer muscle spasms. Id. He later slipped while boarding the bus, causing his left arm, which was cuffed to the other inmate, to be wrenched upwards. Id. After these incidents, Plaintiff was taken to the NIC where he indicated that he was feeling pain and could not move his left arm. Id.

  B. The Assault Allegation

  On March 11, 2000, Plaintiff alleges that after a brief exchange of words, Corrections Officer Little reached through the bars of his cell, and then "violently pulled him into the bars," Compl., ¶ 91, as well as "scratching and clawing him." Compl., ¶ 135. As a result, Plaintiff suffered severe pain to the left shoulder, lacerations, swelling, and bruises. See Compl., ¶ 136.

  C. Destruction of Property

  Shomo states generally that corrections officers destroyed his personal property during searches of his cell and that this occurred at least 100 times between October 8, 1999, and January 4, 2001. See Compl., ¶ 95. Plaintiff additionally states that he suffered physical and emotional pain after each cell search because his physical ailments made it painful for him to rearrange his cell and that he was compelled to pay other inmates to assist him. See Compl., ¶ 97. II. Discussion

  A. Standards on a 12(b)(6) Motion to Dismiss

  A Rule 12(b)(6) motion requires the court to determine whether plaintiff has stated a legally sufficient claim. A motion to dismiss under Rule 12(b)(6) may be granted only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). The court's function is "not to assay the weight of the evidence which might be offered in support" of the complaint, but "merely to assess the legal feasibility" of the complaint. Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980). In evaluating whether plaintiff may ultimately prevail, the court must take the facts alleged in the complaint as true and draw all reasonable inferences in favor of the plaintiff. See Jackson Nat'l Life Ins. Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994). Moreover, a complaint submitted pro se must be liberally construed and is held to a less rigorous standard of review than formal pleadings drafted by an attorney. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980); Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d Cir. 1986).

  B. Service of Process

  Corporate Counsel for the City of New York accepted service of process and represents defendants City of New York, New York City Department of Corrections, William Fraser, Eric Perry, Dr. Saroja Singh, and Dr. Marie Francois. See Letter From Jordan M. Smith to Hon. Alvin K. Hellerstein of April 26, 2004. Corporate Counsel provided addresses for defendants Pauline Little, Dr. Joy Myers, St. Barnabas Hospital, Marquita Wright, Dr. Shahid Nawaz, and Dr. Rameeh Seegobin. Id. In his Opposition to Defendant Motion to Dismiss ("Plaintiff's Opposition"), Shomo indicates that an attempt to serve defendants Wright, Dr. Nawaz, Dr. Seegobin by United States Marshals did not succeed, presumably because the addresses provided by the City of New York were no longer accurate when the attempt was made. See Plaintiff's Opposition ¶ 6.

  Under ordinary circumstances, the plaintiff must serve notice on the defendant within 120 days of filing the complaint. See Fed.R. Civ. Proc. Rule 4(m). This rule is not strictly enforced in pro se prisoner cases. See Carney v. Davis, 1991 U.S. Dist. LEXIS 10254, No. 90 Civ. 2591, 1991 WL 150537, at *3 (S.D.N.Y. 1991) (declining to dismiss pro se prisoner's action despite three and one-half years delay in service). I find that Plaintiff Shomo requested that U.S. Marshals serve notice on Drs. Nawaz and Seegobin within a reasonable period of time and that he was not in a position to monitor whether they succeeded in serving those defendants. I therefore direct Corporate Counsel for the City of New York to investigate and provide Shomo with updated addresses for Drs. Nawaz and Seegobin, and to confirm that Dr. Myers has been served notice, as these are the only three persons against whom Plaintiff has leave to re-plead.

  C. Statute of Limitations

  Plaintiff Shomo states claims under 42 U.S.C. § 1983, the Civil Rights Act of 1964, the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. See Compl., ¶¶ 97-136. The defendants argue that the statute of limitations has expired for all claims made by Shomo pursuant to those Acts.

  1. 42 U.S.C. § 1983

  Congress did not provide a statute of limitations period for the filing of § 1983 claims. In the absence of congressional specification, the Supreme Court has held that "[w]here state law provides multiple statutes of limitations for personal injury actions, courts considering § 1983 claims should borrow the general or residual statute for personal injury actions." Owens v. Okure, 488 U.S. 235, 250 (1989). In New York, the relevant period is three years. See N.Y.C.P.L.R. § 214(5) (Consol. 2004); Pearl ...

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