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 ...