The opinion of the court was delivered by: Laura Taylor Swain, District Judge
In this action arising out of the alleged denial of proper mental health care to Plaintiffs' decedent Frank Kucharczyk ("Decedent"), a mentally ill person who was at all times relevant herein incarcerated in the New York State prison system, Plaintiffs Joy Maccharulo and Delores Kucharczyk ("Plaintiffs"), as Co-Administratrices of Decedent's estate, assert claims under 42 U.S.C. § 1983 ("Section 1983"), 42 U.S.C. § 12131 ("ADA Title II"), and 29 U.S.C. § 794 ("Rehabilitation Act"). Plaintiffs' Amended Complaint names as defendants four New York State entities ("Entity Defendants")*fn1 and twenty-eight individuals ("Individual Defendants")*fn2 (collectively, "Defendants"). The Court has subject matter jurisdiction of the action pursuant to 28 U.S.C. § 1331. Defendants*fn3 have moved to dismiss the complaint on a variety of grounds, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The Court has considered thoroughly the parties' submissions and, for the following reasons, Defendants' motion will be granted in its entirety. Plaintiffs will be granted leave to replead their ADA Title II and Rehabilitation Act claims against the Entity Defendants.
The following facts are alleged in the Amended Complaint and are taken as true for purposes of this motion practice. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 189 (2d Cir. 2007). Decedent, at the time of his death in 2004, was a 44-year-old man who suffered from paranoid schizophrenia. On September 19, 2002, Decedent pleaded guilty to attempted robbery in the second degree and assault in the second degree and was sentenced to a term of seven years of incarceration by the Superior*fn4 Court of the State of New York, Westchester County. On November 25, 2002, Decedent was admitted to CNYPC for an OMH classification and service level designation, which would be relied upon to place him appropriately in the correctional system. The OMH classification system ranks each subject on a scale from one to five, with level-one subjects requiring the most intensive mental health treatment. CNYPC concluded that Decedent was "psychotic" and suffered from a serious mental illness, and assigned him an OMH classification of level two. He was transferred to Fishkill Correctional Center ("Fishkill"), a level-two facility, on January 21, 2003. At the time of his transfer, Decedent was "mentally stable."
Decedent's mental health deteriorated significantly during his five-month incarceration at Fishkill. The Fishkill staff was unable to treat Decedent's recurrent auditory hallucinations and paranoia. On June 11, 2003, the Fishkill staff downgraded Decedent's OMH level to level one and concluded that Decedent required more intensive mental health treatment. The staff reported that Fishkill was unable to provide Decedent with level-one treatment and approved his transfer to a level-one facility.
On June 27, 2003, Decedent was transferred to Auburn Correctional Center ("Auburn"). While receiving level-one treatment at Auburn, Decedent's mental health improved significantly. Decedent's OMH classification, however, remained at level one. On August 2, 2004, the Auburn staff nonetheless transferred Decedent back to Fishkill. During the seven-day transfer period from Auburn to Fishkill, Decedent's psychotropic medication was discontinued, causing him to experience auditory hallucinations, paranoia, restlessness, and insomnia. Although Decedent's psychotropic medication was reinstated on August 9, 2004, his mental health continued to deteriorate, leading to poor self-discipline and ultimately a mental breakdown on September 9, 2004. Decedent was transferred to Green Haven Correctional Center ("Green Haven"), a level-one facility, on October 15, 2004. Upon his arrival, Decedent collapsed and was transferred to St. Francis Hospital, where he died of an Olanzapine overdose.
Proceeding pro se, Plaintiffs commenced this actionby filing a complaint (the "Original Complaint")on October 15, 2007, asserting that Defendants Glenn Goord, Michael Hogan, Donald Sawyer, Robert Rizzo, (collectively, "Original Defendants"), William Connelly,*fn5 and unidentified "John Doe" defendants violated the Decedent's rights under the Eighth and Fourteenth Amendments to the Constitution and are thus liable under 42 U.S.C. § 1983.*fn6 Specifically, Plaintiffs alleged that while Decedent was incarcerated in DOCS, the named Defendants failed to treat Decedent's "serious psychologically debilitating medical condition," placed Decedent in solitary confinement despite his "severe mental illness," and "implemented a mental health system . . . wholly inadequate" to treat the mentally ill. (Compl. ¶ III-C.) The Court (Wood, C.J.) issued an order sua sponte on January 14, 2008 ("Jan. 14 Order") , directing Plaintiffs to amend the Complaint to address various specified insufficiencies. (Jan. 14 Order, 5.)
On March 14, 2008, Plaintiffs, through counsel, filed an Amended Complaint, which named 28 additional defendants and included two groups of unnamed individual defendants.*fn7 The Amended Complaint asserts a Section 1983 claim against various individual defendants, alleging that their deliberate indifference to Decedent's serious medical needs deprived him of his rights secured by the Eighth and Fourteenth Amendments. (Am. Compl. ¶¶ 102-107.) In addition, Plaintiffs' Amended Complaint asserts for the first time claims against various individual defendants and the Entity Defendants under Title II of the ADA and the Rehabilitation Act. (Am. Compl. ¶¶ 97-100.)
The Eleventh Amendment to the Constitution of the United States provides immunity against "any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. 11. Thus, a suit against a state, one of its agencies, or one of its officials acting in his official capacity is generally proscribed by the Eleventh Amendment. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). While sovereign immunity may be waived by the states, see CSX Transp. Inc. v. New York State Office of Real Property Servs., 306 F.3d 87, 95 (2d Cir. 2002), or abrogated through an act of Congress pursuant to its authority under Section Five of the Fourteenth Amendment, see Tennessee v. Lane, 541 U.S. 509, 518 (2004), the State of New York has not waived its immunity from suit, see Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977), and Section 1983 does not abrogate a state's Eleventh Amendment immunity, see Dube v. State Univ. of New York, 900 F.2d 587, 594 (2d Cir. 1990). Therefore, to the extent that Plaintiffs assert Section 1983 claims against New York State, its agencies, and/or its employees in their official capacity, those claims are barred by the Eleventh Amendment.*fn8
In deciding a motion to dismiss a complaint for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must "accept as true all factual statements alleged in the complaint and draw reasonable inferences in favor of the non-moving party." McCarthy, 482 F.3d at 191 (internal citations omitted). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. This plausibility standard does not amount to a "probability requirement," but it calls for more than a "sheer possibility that a defendant has acted unlawfully." Id. (internal quotation marks and citation omitted). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal quotation marks and citation omitted).
III. The Statute of Limitations
A statute of limitations provides an affirmative defense. See Fed. R. Civ. P. 8(c)(1).
The Court may consider Defendants' statute of limitations defense at this juncture because "a complaint can be dismissed for failure to state a claim pursuant to a Rule 12(b)(6) motion raising an affirmative defense if the defense appears on the face of the complaint." Official Comm. of the Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003) (internal quotation marks omitted). In Section 1983 actions, the applicable statute of limitations is a state's "general or residual statute for personal injury actions." Owens v. Okure, 488 U.S. 235, 250 (1989). Claims asserted under Title II of the ADA and Section 504 of the Rehabilitation Act are also governed by the applicable state statute of limitations for personal injury actions. See M.D. v. Southington Bd. of Educ., 334 F.3d 217, 221-22 (2d Cir. 2003) (Rehabilitation Act); Gardner v. Wansart, No. 05 Civ. 3351, 2006 WL 2742043, at *3 (S.D.N.Y. Sept. 26, 2006) (ADA Title II). In New York, claims brought under Section 1983, ADA Title II, and the Rehabilitation Act are governed by the three-year statute of limitations provided by Section 214(5) of the New York Civil Practice Law and Rules.*fn9 See Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (Section 1983); Gardner, 2006 WL 2742043, at *3 (Rehabilitation Act and ADA Title II).
It is clear from the face of the complaint that Plaintiffs' causes of action accrued, at the latest, on the date of Decedent's death, October 15, 2004. Plaintiffs commenced this action on October 15, 2007, the last day within the limitations period, and amended their complaint four months thereafter, on March 14, 2008, to assert new causes of action and to bring in new parties. Defendants contend that Plaintiffs' ADA Title II and Rehabilitation Act claims against Defendants Goord, Hogan, and Sawyer are untimely because they were first asserted after the statute of limitations had expired. Defendants further contend that all claims asserted against the Newly-Added Individual Defendants and Entity Defendants are time-barred. Since it is undisputed that more than three years have passed between the accrual date and the date of the ...