The opinion of the court was delivered by: KEVIN CASTEL, District Judge
Plaintiff Barry Lee Vallen brings this action, pursuant to
42 U.S.C. § 1983, alleging that he was the victim of multiple
patient-to-patient assaults and deprivations of property during
the time that he resided at the Mid-Hudson Forensic Psychiatric
Center ("Mid-Hudson"), a facility operated by an agency of the
state of New York. In a Memorandum and Order dated September 2,
2004, I dismissed defendants New York State Office of Mental
Health and Mid-Hudson on the basis of the state's
constitutionally-based immunity from suit. Vallen v. Mid-Hudson
Forensic Office of Mental Health, 2004 WL 1948756 (S.D.N.Y.
Sept. 2, 2004). I concluded that the Complaint set forth
allegations sufficient to state claims against the individual
defendants for deliberate indifference to confinement conditions
that were seriously and dangerously unsafe. Id. at *3. I held
that plaintiff's claim did not arise under the Eighth Amendment
because he was not serving a term of imprisonment pursuant to a
conviction, but, generously construed, his pro se Complaint
could be read as alleging that persons acting under color of state law had deprived him, as an
involuntarily detained person, of rights protected by the
Fourteenth Amendment. Id.
Discovery in this action is now closed. The defendants have
moved for summary judgment dismissing the plaintiff's claims. For
the reasons explained below, the defendants' motion is granted.
The following facts are taken from plaintiff's pleadings, his
sworn deposition testimony or are otherwise not disputed. Where
multiple inferences can be drawn from the facts, I have
considered only the one most favorable to Mr. Vallen, the
In 1984, the plaintiff was charged with two counts of
second-degree murder in connection with the death of his parents.
(Vallen Dep. at 169) Plaintiff pleaded not guilty by reason of
mental illness or defect and was diagnosed as a
paranoid-schizophrenic. (Vallen Dep. at 169-71) A Justice of the
New York Supreme Court, Orange County, found that, at that point
in time, the plaintiff suffered from a dangerous mental illness
and ordered that he be committed to a psychiatric facility.
(Vallen Dep. at 170) Subsequently, plaintiff was discharged to
outpatient care on two occasions, but in each instance he was
later recommitted. (Vallen Dep. at 172-84) From April 18, 1997
through June 14, 2000, plaintiff was an in-patient at Mid-Hudson.
(Dickson Aff. ¶ 5)
In an order dated July 22, 2002, Chief Judge Michael B. Mukasey
dismissed plaintiff's deprivation of property claim and ruled
that the State of New York provided adequate post-deprivation
remedies for the recovery of lost property. (July 22, 2002 Order
at 3) He also ruled that the Complaint inadequately detailed the
assault claims, and dismissed those claims without prejudice.
(July 22, 2002 Order at 2, 4-5) Plaintiff filed an Amended
Complaint ("AC") dated January 24, 2003. The AC alleges that, during his three years of treatment at
Mid-Hudson Forensic Psychiatric Facility, the plaintiff was
subjected to violence and threats of violence, and that the
individual defendants promoted or failed to prevent these
incidents. The individual defendants were employed as security
hospital treatment assistants ("SHTAs") who were responsible for
assisting psychiatric patients in their day-to-day needs and
activities. (DeLusso Aff. ¶¶ 2-3)
Each of the incidents set forth in the AC are discussed below.
Generally described, the plaintiff alleges that the defendants
either encouraged or failed to intervene in violent attacks that
other patients inflicted upon the plaintiff. According to the AC,
the defendants were aware that various Mid-Hudson patients had
violent histories, and placed these patients in close proximity
to the plaintiff. On other occasions, the AC alleges that the
defendants displayed pleasure at the attacks on plaintiff that
allegedly took place. Plaintiff notes, by way of contrast, that
since the year 2000 he has resided at a facility in Rochester,
New York, and has never been threatened or assaulted.
Helpfully, as part of their motion papers, the defendants have
organized the allegations set forth in the Complaint into sixteen
distinct incidents or clusters of incidents. Solely for the
purposes of facilitating evaluation and discussion of the
incidents, I will refer to the sixteen incidents by the number
and descriptive title employed in the defendants' motion papers.
(Appendix to this Memorandum and Order) I do not in any way treat
the defendants' submission as having any evidentiary quality to
Summary Judgment Standard
Summary judgment "shall be rendered forthwith if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). It is the
initial burden of a movant on a summary judgment motion to come
forward with evidence on each material element of his claim or
defense, demonstrating that he or she is entitled to relief. A
fact is material if it "might affect the outcome of the suit
under the governing law . . ." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). The evidence on each material element
must be sufficient to entitle the movant to relief in its favor
as a matter of law. Vermont Teddy Bear Co., Inc. v. 1-800
Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004).
When the moving party has met this initial burden and has
asserted facts to demonstrate that the non-moving party's claim
cannot be sustained, the opposing party must "set forth specific
facts showing that there is a genuine issue for trial," and
cannot rest on "mere allegations or denials" of the facts
asserted by the movant. Fed.R.Civ.P. 56(e). In raising a
triable issue of fact, the nonmovant carries only "a limited
burden of production," but nevertheless "must `demonstrate more
than some metaphysical doubt as to the material facts,' and come
forward with `specific facts showing that there is a genuine
issue for trial.'" Powell v. Nat'l Bd. of Med. Exam'rs,
364 F.3d 79, 84 (2d Cir. 2004) (quoting Aslanidis v. United States
Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993)).
An issue of fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248. Caution is particularly warranted
when considering a summary judgment motion in a discrimination
action, since direct evidence of discriminatory intent is rare,
and often must be inferred. Forsyth v. Fed'n Empl. & Guidance
Serv., 409 F.3d 565, 569 (2d Cir. 2005). The Court must "view
the evidence in the light most favorable to the non-moving party
and draw all reasonable inferences in its favor, and may grant
summary judgment only when no reasonable trier of fact could find
in favor of the nonmoving party." Allen v. Coughlin,
64 F.3d 77, 79 (2d Cir. 1995) (quotations and citations omitted); accord Matsushita
Electric Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). In reviewing a motion for summary judgment, the court
must scrutinize the record, and grant or deny summary judgment as
the record warrants. See Fed.R.Civ.P. 56(c). In the absence
of any disputed material fact, summary judgment is appropriate.
The defendants have served the pro se plaintiff with the
notice explaining the manner in which a party may oppose summary
judgment, as required by Local Rule 56.2. I am mindful of the
latitude afforded to a pro se party opposing a summary
judgment motion. See Forsyth, 409 F.3d at 570 ("special
solicitude" owed to pro se litigants opposing summary
judgment); Shabtai v. U.S. Dep't of Educ., 2003 WL 21983025, at
*5 (S.D.N.Y. Aug. 20, 2003) (obligation to construe leniently
pro se opposition papers on a summary judgment motion).
However, a party's pro se status does not alter the
obligation placed upon the party opposing summary judgment to
come forward with evidence demonstrating that there is a genuine
dispute regarding material fact. Miller v. New York City Health
& Hosp. Corp., 2004 WL 1907310, at *9 (S.D.N.Y. Aug. 25, 2004).
1. Statute of Limitations Defense
The applicable limitations period for Section 1983 actions is
found in the state statute of limitations for personal injury
actions. Owens v. Okure, 488 U.S. 235, 249-50 (1989).
"Accordingly . . . New York's three-year statute of limitations
for unspecified personal injury actions, New York Civil Practice
Law and Rules § 214(5), governs section 1983 actions in New
York." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). The
statute of limitations begins to accrue "`when the plaintiff
knows or has reason to know of the injury which is the basis of his action.'" Id. (quoting Singleton v.
City of New York, 632 F.2d 185, 191 (2d Cir. 1980)).
This action was filed in the pro se office on December 10,
2001, although the Complaint was not formally accepted for filing
until July 22, 2002. The timeliness of the Complaint for statute
of limitations purposes is measured from the delivery to the
pro se office on December 10, 2001. See Ortiz v.
Cornetta, 867 F.2d 146 (2d Cir. 1999); Toliver v. Sullivan
County, 841 F.2d 41 (2d Cir. 1988). It is undisputed that some
of the events alleged in the AC occurred more than three years
prior to such delivery, i.e. prior to December 10, 1998.
Here, plaintiff argues that he is entitled to tolling under New
York law by reasons of insanity. Once the defendant demonstrates
that the claim facially falls within the limitations period, the
plaintiff, not the defendant, bears the burden of proof on
tolling. See Doe v. Holy See (State of Vatican City),
17 A.D.3d 793, 794 (3d Dep't 2005); Assad v. City of New York,
238 A.D.2d 456, 457 (2d Dep't 1997).
CPLR 208 provides for tolling when "a person entitled to
commence an action [was] under a disability because of infancy or
insanity at the time the cause of action accrues. . . ." While
the words of the statute, taken at face value, might appear to be
broad enough to apply to any person suffering from a debilitating
mental illness, the New York Court of Appeals has interpreted the
statute more narrowly. McCarthy v. Volkswagen of Am.,
55 N.Y.2d 543 (1982). The McCarthy Court reviewed the legislative history
of the provision and concluded that the legislature intended that
CPLR 208 be "narrowly interpreted". Id. at 548. In the words of
the Court: "we believe that the Legislature meant to extend the
toll for insanity to only those individuals who are unable to
protect their legal rights because of an over-all inability to
function in society." Id. at 548-549. New York courts have
consistently applied the McCarthy standard to claims of tolling by reason of
insanity. See, e.g., Eberhard v. Elmira City School Dist.,
6 A.D.3d 971, 973 (3d Dep't 2004) (McCarthy standard not
satisfied by claim of post-traumatic stress syndrome); Burgos v.
City of New York, 294 A.D.2d 177, 178 (1st Dep't 2002) ("The
doctor's affirmation . . . was vague and conclusory in asserting
that plaintiff's `dementia and psychotic disorder [are] due to
multiple medical conditions [that] have existed for many years
and are permanent,' and thus insufficient to raise an issue of
fact" on CPLR 208 tolling under the McCarthy standard).
The standard articulated in McCarthy has two components.
First, the party must be "unable to protect [his] legal rights"
and, second, the reason he is unable to protect his legal rights
is "because of an over-all inability to function in society". I
assume for the purposes of this motion that, during the period
for which plaintiff seeks tolling, he had "an over-all inability
to function in society." In this regard, plaintiff has had
several "retention hearings" that have resulted in findings that
Vallen should remain in an institutional setting. (Vallen Decl. ¶
1) However, I still must consider whether plaintiff has raised a
triable issue of fact as to his ability to protect his legal
rights during the period for which he seeks tolling.
As part of their summary judgment burden, the defendants have
come forward with evidence of Vallen's direct, personal and
vigorous pursuit of his legal rights in judicial proceedings
instituted during the period for which he claims tolling. In
November 1998, plaintiff commenced an action in the Court of
Claims of the State of New York alleging that the state had been
negligent in permitting seven inmate assaults on him over the
course of one and one-half years. (Peeples Aff., Ex. C) He was
then familiar with the necessity of timely filing a claim, as
evidenced by his handwritten complaint dated November 16, 1998,
which recites as follows: "This claim is filed within 3 years
after the claim accrued, as required by law." (Peeples Aff., Ex. C)*fn1 Vallen v. State of New
York, Claim No. 100141 (N.Y. Ct. Cl. Sept. 1, 1999). He filed a
second Court of Claims action in or around July 1999 alleging
that the state had been negligent by permitting a patient
identified as C.J. to initiate a physical attack.*fn2
(Peeples Aff. Ex. D) Vallen v. State of New York, Claim No.
100803 (N.Y. Ct. Cl. Apr. 17, 2001). Plaintiff filed a third
Court of Claims action in July 1999, alleging that the state was
negligent in permitting the theft of his personal property; in
that action, he set forth a detailed list of each item of lost
property and its value, including a "suit for court" ($279) and a
pair of ostrich leather western boots ($350) (Peeples Aff. Ex. E)
Vallen v. State of New York, Claim No. 100804 (N.Y. Ct. Cl.
Apr. 17, 2001). Also in July 1999, he filed a Section 1983 action
in this District alleging that his constitutional rights had been
violated. (Peeples Aff. Ex. I) Vallen v. Connelly, 99 Civ. 9947
(SAS).*fn3 In March 2000, plaintiff filed a fourth suit in
the Court of Claims alleging that falsified claims had been
levied against him. (Peeples Aff. Ex. F) Vallen v. State of New
York, Claim No. 102160 (N.Y. Ct. Cl. Sept. 1, 2000). In toto,
between November 1998 and March 2000, Vallen, proceeding pro
se, filed five separate lawsuits in two different fora in an
effort to enforce and protect his legal rights. In two of the
pleadings, he affirmatively expressed an understanding of the
applicable statute of limitations. The 1999 federal court action
evinces an awareness of a federal remedy and the procedural means
to invoke it. Cf. Cerami v. City of Rochester Sch. Dist.,
82 N.Y.2d 809, 813 (1993) (considering, inter alia, the numerous
law-suits filed by the party claiming toll in rejecting such a
In response to the defendants' evidence submitted on their
summary judgment motion, plaintiff has been unable to raise a
triable issue of fact as to his ability to protect his legal rights during the period for which he claims tolling. The
plaintiff has had a full opportunity to conduct discovery. In his
papers in opposition to summary judgment, he has exhibited an
understanding of the requirements of Rule 56, which were
explained to him in the Local Rule 56.2 Notice. Yet, nowhere does
he address his ability or inability to protect his rights during
the time he has been in a mental health facility. Indeed, rather
than rebut the defendants' evidence, plaintiff notes that, during
the period for which he seeks tolling, he "pressed charges and
the patient C.J. was convicted and sent to Orange County jail."
(Pro Se Affidavit in support to deny [sic] summary judgment) The
closest he comes to responding to the defendant's argument is the
assertion that he lost some or all of his lawsuits on the basis
of "simple technicalities", thereby demonstrating that he was
unable to protect his rights. (Pro Se Mot. to Den. Summ. J. at 1)
But it does not follow that because other claims he asserted were
dismissed on various grounds that, therefore, he was unable ...