The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision, brought this action under 42 U.S.C. § 1983 ("section 1983"). In his amended complaint (Dkt. No. 81), plaintiff seeks monetary and injunctive relief based on his claim that defendants have wrongfully refused to provide needed surgery on his right shoulder. There are three pending motions. First, the City of New York (sued as The Dept. of Corr. NYC), New York City Health and Hospitals Corporation (sued as Bellevue Hospital), and Rikers Island Facility (collectively, "City defendants") move (Dkt. No. 96) to dismiss under Fed. R. Civ. P. 12(b)(6). Second, defendants Lester Wright, Brian Fischer, Pedro Diaz, and Dr. Whalen (collectively, "State defendants") move (Dkt. Nos. 91, 119) for summary judgment. And third, plaintiff moves for a preliminary injunction (Dkt. No. 124).
Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge George H. Lowe issued a Report and Recommendation (Dkt. No. 130) recommending that the City defendants' motion to dismiss (Dkt. No. 96) be granted with leave to replead; that the State defendants' motion for summary judgment (Dkt. Nos. 91, 119) be granted without prejudice to refiling when plaintiff has exhausted his administrative remedies; and that plaintiff's motion for a preliminary injunction (Dkt. No. 124) be denied as moot. Magistrate Judge Lowe also granted the State defendants' request (Dkt. No. 129 ) for an extension of time to respond to plaintiff's preliminary injunction motion and adjourned the response deadline without date pending this Court's action on the Report-Recommendation.
Plaintiff objects (Dkt. No. 131) to virtually every aspect of the Report and Recommendation. The City defendants object (Dkt. No. 132) to Magistrate Judge Lowe's recommendation that plaintiff be given an opportunity to file a second amended complaint. On de novo review pursuant to 28 U.S.C. § 636(b)(1)(C), this Court accepts the Report and Recommendation in all respects except that the Court denies leave to amend against the City defendants. Accordingly, the action is dismissed.
The Court first addresses the City defendants' motion (Dkt. No. 96) to dismiss under Fed. R. Civ. P. 12(b)(6). The Court adopts the Report and Recommendation's recitation of the facts and applicable law. In moving to dismiss, the City defendants contend that plaintiff's claims against them are barred by the three-year statute of limitations applicable to section 1983 claims. See Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009). They urge that the latest date the claims could have accrued was August 21, 2006, when plaintiff was transferred to State custody. Plaintiff signed his complaint on September 11, 2009, more than three years later.
Plaintiff contends that he should benefit from the continuing violation doctrine and/or equitable tolling. The continuing violation doctrine provides an exception to the general rule that a section 1983 claim accrues when the plaintiff knows or has reason to know of the harm. See id. In cases where a plaintiff challenges an ongoing unlawful policy, the doctrine may be applied to delay commencement of the limitations period until the last unlawful act in furtherance of that policy. See id. The doctrine may apply "when a prisoner challenges a series of acts that together comprise an Eighth Amendment claim of deliberate indifference to serious medical needs." Id. at 182. The prisoner "must allege both the existence of an ongoing policy of deliberate indifference to his or her serious medical needs and some non-time-barred acts taken in the furtherance of that policy." Id. (citation, alteration, and internal quote omitted). The doctrine does not apply to medical indifference claims "that challenge discrete acts of unconstitutional conduct or that fail to allege acts within the relevant statutory period that are traceable to a policy of deliberate indifference." Id.
Plaintiff also contends that he should benefit from equitable tolling, "a doctrine that permits courts to extend a statute of limitations on a case-by-case basis to prevent inequity." Johnson v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996). The Second Circuit recently explained:
Generally, a litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way. Because statutes of limitations protect important social interests in certainty, accuracy, and repose, equitable tolling is considered a drastic remedy applicable only in rare and exceptional circumstance[s].
A.Q.C. ex rel. Castillo v. United States, 2011 WL 3926557, *7 (2d Cir. Sept. 8, 2011) (citations and internal quotation marks omitted). "The plaintiff bears the burden of showing that the action was brought within a reasonable period of time after the facts giving rise to the equitable tolling claim have ceased to be operational." Abbas v. Dixon, 480 F.3d 636, 642 (2d Cir. 2007) (citation and quotation marks omitted). The doctrine may be invoked to defeat a statute of limitations defense "when the plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action." Id. Even where plaintiff shows that he was the victim of fraud, misrepresentations or deception, however, he is not entitled to equitable tolling unless he can also show that these circumstances prevented him from timely commencing his action. See id.
The statute of limitations issue was first raised by this Court in its Memorandum-Decision and Order (Dkt. No. 8) upon preliminary review of the initial complaint (Dkt. No. 1) under 28 U.S.C. § 1915(e). The Court wrote:
The Court also notes that claims arising out of plaintiff's confinement in NYC DOC custody appear to be time-barred. The applicable statute of limitations for § 1983 actions arising in New York requires claims to be brought within three years. A §1983 cause of action accrues when the plaintiff knows or should know of the injury that is the basis of the cause of action. In determining when the statute begins to run, the proper focus is on the time of the illegal act, not the point at which the consequences of the act become painful.
In this case, plaintiff's confinement in NYC DOC custody ended in August, 2006. Plaintiff signed his complaint in this action more than three years later, on September 11, 2009. *** In light of plaintiff's pro se status, he is afforded the opportunity to file an amended complaint within thirty (30) days of the filing date of this Order if he wishes to proceed with this action against one or more of the New York City Defendants. Any amended complaint, which shall supersede and replace in its entirety the original complaint filed by plaintiff, must clearly allege plaintiff's intention to name one or more of ...