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May 2, 2005.

GLENN S. GOORD, Commissioner of the New York Department of Correctional Services, et al., Defendants.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District


Plaintiff, Andrew Styles, appearing pro se, commenced this action under 42 U.S.C. § 1983. Plaintiff, an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), alleges that defendants, all of whom were at all relevant times DOCS officials or employees, violated his rights under the Eighth Amendment to the United States Constitution by causing or allowing him to contract Hepatitis C in 1989. Defendants have moved for summary judgment. For the reasons that follow, defendants' motion is granted, and the complaint is dismissed. FACTUAL BACKGROUND

In early 1989, while he was confined at Wende Correctional Facility ("Wende"), plaintiff worked as a nurse's aide at Wende's Regional Medical Unit ("RMU"). Plaintiff alleges that during his employment there, he was frequently in contact with AIDS patients. Plaintiff alleges that on one occasion, an HIV-positive inmate who was a patient at RMU had a seizure, and as plaintiff was helping a nurse to restrain the inmate, the nurse accidentally stuck plaintiff (and herself) in the arm with the same needle that she had used to sedate the inmate.

  Plaintiff's medical records indicate that he began suffering chronic nasal problems in 1991. Those symptoms persisted for a period of years, and in November 1994, following a blood test, plaintiff tested positive for Hepatitis C antibodies. Plaintiff was tested again in April 2000, and again tested positive. See Complaint Ex. 4.

  Plaintiff alleges that he was infected with Hepatitis C during the episode with the HIV-positive inmate at RMU. In his complaint, which was filed on September 16, 2002, plaintiff alleges that defendants violated his Eighth Amendment rights by not providing him with "adequate protective gear to shield him from the risk of contracting infectious diseases," and by not "tak[ing] any precautionary measures to train" him. Complaint at 4. In particular, plaintiff alleges that he should have been instructed in so-called "universal precautions," including proper procedures such as "how to clean, mop, wash people's clothes." Id.; Styles Deposition (Dkt. #29 Ex. B) at 27, lines 15-25. DISCUSSION

  Defendants contend that the complaint should be dismissed as time-barred. I agree. Plaintiff had until November 1997 to file a complaint, nearly five years before he actually did so.

  "A three-year statute of limitations, derived from New York's general personal injury statute of limitations, is applied to § 1983 actions brought in New York." Griswold v. Morgan, 317 F. Supp. 2d 226, 231 (W.D.N.Y. 2004) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989); Paige v. Police Dep't, 264 F.3d 197, 199 n. 2 (2d Cir. 2001)). The question in this case is when that three-year limitations period began to run. Defendants contend that it began no later than 1994, when plaintiff first tested positive for Hepatitis C. Plaintiff asserts that the limitations period did not commence until his "final" test results in 2000.

  The general rule in New York is that the limitations period for personal injury actions begins to run on the date of the injury. See N.Y.C.P.L.R. § 214(5). There are some exceptions to that rule, however. Plaintiff asks the Court to apply one such exception — C.P.L.R. § 214-c(4) — which allows a plaintiff to bring a claim up to six years after discovering his injury where "technical, scientific or medical knowledge and information sufficient to ascertain the cause of his injury had not been discovered, identified or determined" previously.

  Plaintiff has the burden of showing that this exception applies, Bano v. Union Carbide Corp., 361 F.3d 696, 710 (2d Cir. 2004) (citing Pompa v. Burroughs Wellcome Co., 259 A.D.2d 18, 22 (3d Dep't 1999)), and he has failed to do so. For § 214-c(4) to apply, plaintiff must show both "that the state of medical or scientific knowledge was such that the causation of his injury could not have been identified within the three-year period after the discovery of the injury," and "that it was impossible to determine the cause of his injury within three years after the discovery of his injury." Freier v. Westinghouse Elec. Corp., 303 F.3d 176, 206 (2d Cir. 2002), cert. denied, 538 U.S. 998 (2003). In the case at bar, plaintiff has shown neither. There is no evidence at all that the medical community lacked the means to have discovered plaintiff's condition before April 2000 (in fact, plaintiff's condition was discovered about five and a half years earlier). Likewise, plaintiff, who knew that he had tested positive for Hepatitis C in 1994, has not shown why he could not have known the cause of that condition (allegedly, his being stabbed with a contaminated needle) until 2000.

  Another exception to the general rule does apply here, although it does not save plaintiff's claim. Under CPLR § 214-c, "the three-year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance . . . must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier." C.P.L.R. § 214-c(2). The purpose behind this rule is "to ameliorate the harsh effect of th[e] ancient common-law rule, which often prevented recovery by a person exposed to a toxic or harmful substance who would not be aware of the injury at the time it was inflicted." DiMarco v. Hudson Valley Blood Services, 147 A.D.2d 156, 159-60 (1st Dep't 1989).

  By its terms, § 214-c includes an "injection" within the definition of "exposure." C.P.L.R. § 214-c(1). Because Styles alleges that he contracted Hepatitis C from an accidental injection by a contaminated needle, CPLR § 214-c governs the timeliness of his claims. See, e.g., Hoemke v. New York Blood Center, No. 88 CIV. 9029, 1989 WL 147642, at *1 (S.D.N.Y. Nov. 28, 1989) (§ 214-c applied to suit against blood bank by plaintiff who alleged he had contracted AIDS in blood transfusion), aff'd, 912 F.2d 550 (2d Cir. 2000); DiMarco, 147 A.D.2d at 159-60 (same); see also Prego v. New York, 141 Misc. 2d 709 (Sup.Ct. Kings Co. 1988) (blood containing the AIDS virus is a toxic substance under § 214-c), aff'd, 147 App. Div. 2d 165 (2d Dep't 1989). Plaintiff therefore had three years from the date on which he discovered or should have discovered his injury to commence this lawsuit.

  As stated, that date was November 1, 1994, when plaintiff first tested positive for Hepatitis C. I am not persuaded by plaintiff's assertion that the 2000 test was the last in a "combination of tests" spanning several years, and that it was only this "final" test that definitively proved that he carried the virus. Plaintiff's Memorandum of Law (Dkt. #33) at 4. Even if that were true, the limitations period would still have begun running in November 1994.

  Cases applying § 214-c make clear that a plaintiff cannot choose the date on which he "discovers" his injury by delaying medical tests, or by taking successive tests to "confirm" the results of earlier tests. For that matter, test results are not necessarily even required to commence the limitations period. Rather, courts have held that a cause of action accrues at the moment a plaintiff begins to experience symptoms that a reasonable person would link with the underlying illness. See, e.g., Prego, 141 Misc. 2d at 712. Thus, once a plaintiff becomes aware — through whatever means — of the primary condition from which he is suffering, the statute begins to run.

  For example, in Whitney v. Quaker Chem. Corp., 90 N.Y.2d 845 (1997), the plaintiff developed respiratory problems that he attributed to exposure to chemicals contained in the defendant's product in August 1989, but did not bring suit until October 1993, more than four years later. Affirming summary judgment in favor of the defendant, the New York Court of Appeals held that the plaintiff's action was time-barred, even though the plaintiff contended that "his symptoms worsened and changed in 1991" and that it was not until September 1991 that he received a diagnosis that a certain substance had caused his injury. Noting that "the symptoms that afflicted plaintiff in 1989 led him to make repeated visits to the hospital and the health center for treatment," the court stated that evidence "demonstrate[d] that plaintiff had discovered the injury underlying his claims" prior to 1991, and added that "[a]ll that is necessary to start the limitations period is that plaintiff be aware of the primary condition for which damages are sought." Id. at 847. See also Charowsky v. Kurtz, No. CIV. A. 98-CV-5589, 2001 WL 187337, at *3 (E.D.Pa. Feb. 23, 2000) (finding § 1983 action time-barred where plaintiff alleged that he had contracted Hepatitis C in an incident in June 1995, but did not file suit until September 1998; when plaintiff was diagnosed with the disease in December 1997, "he learned nothing more than the full extent of ...

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