The opinion of the court was delivered by: Denise Cote, District Judge
Plaintiff Frank Barbaro ("Barbaro") was injured in an automobile accident before becoming a federal prisoner. He brings this action to recover for the defendants' failure to treat those injuries while he was incarcerated at the Federal Correctional Institution in Otisville, New York ("Otisville") between January 1998 and December 2003. This Opinion revisits rulings on whether the statute of limitations bars certain portions of Barbaro's claims. For the reasons described below, the prior rulings remain unchanged.
Barbaro filed his first administrative tort claim on March 1, 2004. Acting pro se, he filed this Federal Tort Claims Act ("FTCA") and Bivens action on August 5, 2005, and an amended complaint ("Complaint") on November 1, 2005. An Opinion of October 10, 2006 ("2006 Opinion") granted in part the defendants' motion to dismiss the Complaint. Barbaro v. United States, No. 05 Civ. 6998 (DLC), 2006 WL 2882975 (S.D.N.Y. Oct. 10, 2006). Of significance here, the 2006 Opinion held that Barbaro's FTCA claim was untimely to the extent it was based on events occurring prior to March 1, 2002, and that the continuous treatment doctrine did not permit Barbaro to circumvent the FTCA's two year statute of limitations. Id. at *2-3. As for Barbaro's Eighth Amendment deliberate indifference Bivens claim, the 2006 Opinion held that the claim was barred to the extent that it sought recovery for events occurring before August 5, 2002, that is, three years prior to the filing of this action. The 2006 Opinion observed that even if the continuous treatment doctrine applied outside the context of professional malpractice, it would not toll the statute of limitations for Barbaro's Eighth Amendment claim. Id. at *4. The 2006 Opinion allowed Barbaro's FTCA and Eighth Amendment claims to proceed to the extent they arose from the defendants' failure to treat him in response to requests that he made within their respective statutes of limitation. Pursuant to newly appointed counsel's request, an Order of July 10, 2007 permitted Barbaro a second opportunity to oppose the defendants' motion to dismiss and to recover the opportunity to proceed based on a failure to treat him prior to the two and three year cut-off dates.
Given that Barbaro was not previously represented by counsel, his renewed opposition to the motion to dismiss is treated as a supplement to his previous opposition, not as a motion for reconsideration.*fn1 The standards governing a Rule 12(b)(6) motion to dismiss and the statute of limitations analysis for FTCA and Bivens claims, as well as the facts alleged in the Complaint, were described in the 2006 Opinion, and familiarity with that opinion is presumed.
Barbaro contends that the 2006 Opinion erred (1) in concluding that Barbaro's FTCA claim accrued before the two-year statute of limitations date, March 1, 2002, and (2) in rejecting his reliance on the continuous treatment doctrine to toll the statute of limitations. Both of these contentions are rejected.
The plaintiff points to no error in the 2006 Opinion's statement of the discovery rule for the accrual of an FTCA claim. See Barbaro, 2006 WL 2882975, at *2. An FTCA claim, thus, accrues at the time of injury or at the time a plaintiff has or with reasonable diligence should have discovered the critical facts of both his injury and its cause. Id. (citation omitted).
Barbaro contends that his FTCA medical malpractice claim accrued no earlier than March 2003, when a radiologist reviewed Barbaro's MRI studies and noted "marked degenerative change within the cervical spine." While Barbaro admits that he knew before that time that he had injuries, including spinal injuries, from a prior car accident and knew that the defendants had refused the more than 100 requests he had made for medical treatment of those injuries, he argues that he "was unaware that his condition was deteriorating as a result" of defendants' failure to provide treatment.
The Second Circuit has not addressed the accrual of an FTCA medical malpractice claim that alleges that non-action by a defendant aggravated a pre-existing condition. In evaluating a summary judgment decision in a Federal Employers' Liability Act ("FELA") action, which also has a discovery-based trigger for its statute of limitations, however, it has addressed a claim that the plaintiff suffered from gradual injuries sustained before and during the statute of limitations. Mix v. Delaware & Hudson Ry. Co., 345 F.3d 82, 88 (2d Cir. 2003). It held that plaintiffs can recover for gradual injuries suffered during the limitations period that "are sufficiently distinct from those previously suffered" and can recover for aggravation to existing injuries, provided that "the aggravation was caused by a distinct act of negligence whose existence and relationship to the injury was unknown" prior to the limitations period. Id. at 86, 90 (emphasis supplied). In contrast, ongoing tortious conduct does not toll or restart the statute. Id. at 89. The plaintiff in Mix complained of hearing problems associated with continual exposure to loud noise during his work for the railway. Id. at 85.
To establish that an injury is distinct, a plaintiff may show that a separate condition arose during the limitations period due to the lack of care, or that initial symptoms, which were temporary in nature, became permanent injuries during the limitations period due to the cumulative impact of the injuries. Id. at 90-91. Thus, a temporary discomfort may manifest itself "as a cumulative, permanent injury" during the limitation period. Id. As for evidence that there is a distinct cause of injury, a continued failure to treat does not qualify as a distinct cause. Id.
Barbaro does not contend that there was any distinct act of negligence that was sufficient to shift the accrual date for the statute of limitations forward. Nor does he contend that he discovered in March 2003 that he was suffering from a condition separate from that of which he had long been aware. Barbaro argues instead that the failure to provide him with adequate medical care "seriously aggravated" his pre-existing medical conditions. He contends in opposition to this motion that he did not know until an MRI was performed in 2003 that his condition was "actually deteriorating."
Based on the allegations in the Complaint, the Government has shown that it is entitled to a finding that the statute of limitations for those FTCA claims arising from any failures to treat his injuries before March 1, 2002 accrued before that date. Barbaro does not plead that he learned after that date of a distinct injury arising from the failure to provide care. Instead, he suffered a traumatic injury from an auto collision that preceded incarceration. The Complaint repeatedly alleges that Barbaro understood from the beginning of his incarceration that he was suffering from serious injuries that required immediate attention, including surgical care, because they were "degenerative." Barbaro alleges in the Complaint that he arrived in federal prison with herniated discs in his neck and back and a regularly dislocating shoulder. These gave him daily pain, stiffness, range of motion and strength limitations, tingling and numbness, muscle atrophy and physical deformity, nerve damage, and anxiety; resulted in sleep deprivation; and impeded his ability to walk, among other things. Barbaro explains that he reported the daily pain caused by his neck, back and shoulder injuries to the prison every week, advising them on each occasion that he needed to be examined by a neurosurgeon and an orthopedic surgeon. He asserts that the medical records from January 1998 onwards demonstrate the degeneration of his condition. The Complaint, even when construed liberally, does not support an inference that Barbaro learned of a distinct injury through the report of the MRI conducted in 2003.*fn2
Barbaro relies principally on Hughes v. United States, 263 F.3d 272, 276-77 (3d Cir. 2001); Augustine v. United States, 704 F.2d 1074, 1076 (9th Cir. 1983); and Williams v. United States, 03 Civ. 9909, 2007 WL 951382 (S.D.N.Y. Mar. 25, 2007), in support of his contention that an FTCA claim accrues when a plaintiff discovers that his condition has worsened as a result of inadequate treatment. None of these cases, or the others to which he cites, supports a finding that the statute of limitations for Barbaro's FTCA claim accrued in 2003. In each of the three cases, the plaintiff ...