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Griffin v. Doe

United States District Court, N.D. New York

December 23, 2014

MANDI GRIFFIN, also known as Mandi T. Griffin, Plaintiff,
JOHN or JANE DOE(S), et al., Defendants

Order Filed: May 6, 2014

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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MANDI GRIFFIN, Plaintiff, Pro se, Bedford Hills, New York.

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Mae A. D'Agostino, United States District Judge.


On May 1, 2014, Plaintiff commenced this action pro se pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Americans with Disabilities Act (" ADA" ), and the Rehabilitation Act of 1973. See Dkt. No. 1. Plaintiff asserts that unnamed medical professionals and an unnamed general at the Fort Drum U.S. Army base provided inadequate medical care to her daughter, V.G. See id. at 5-6. Plaintiff alleges that Defendant(s)' actions violated V.G.'s constitutional rights under the First, Fifth, Eighth, and Fourteenth Amendments, as well as her rights under the ADA and the Rehabilitation Act. See id.

In an Order and Report-Recommendation dated May 6, 2014, Magistrate Judge Andrew T. Baxter granted Plaintiff's in forma pauperis (" IFP" ) application for purposes of filing only and recommended that Plaintiff's complaint be dismissed as frivolous and for failure to state a claim. See Dkt. No. 4. Specifically, Magistrate Judge Baxter first found that Plaintiff did not have standing to sue on her own behalf for the alleged deprivations of V.G.'s constitutional and statutory rights. Id. at 4-5. To the extent that Plaintiff's complaint could be read as bringing an action on behalf of V.G., Magistrate Judge Baxter noted that Plaintiff was not permitted to bring such an action pro se. Id. at 4 n.3. Magistrate Judge Baxter also found that Plaintiff's claims were time barred and that there was no basis for equitably tolling the applicable statutes of limitations. Id. at 7-8. Furthermore, Magistrate Judge Baxter found that Plaintiff failed to allege the personal involvement of any Defendant in a constitutional deprivation and did not allege any constitutional violation with the requisite specificity to state a claim. Id. at 9. With regards to Plaintiff's ADA and Rehabilitation Act claims, Magistrate Judge Baxter found that Plaintiff failed to allege that V.G. was denied the benefits of a program or services because of V.G.'s handicap. Id. at 11. Finally, Magistrate Judge Baxter found that permitting amendment would be futile and therefore recommended that the Court dismiss the complaint with prejudice. Id. at 11-12. The Court received Plaintiff's objections to the Order and Report-Recommendation on June 2, 2014. See Dkt. No. 7.


A. Plaintiff's objections

In her objections to Magistrate Judge Baxter's Order and Report-Recommendation, Plaintiff first objects to " the Court's assignment of a Magistrate" without Plaintiff's

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consent and asserts that " the Magistrate lacks authority to enter final judgment." See id. at 1. Plaintiff also objects to Magistrate Judge Baxter's recommendation that her complaint be dismissed based on lack of standing. See id. at 2. Plaintiff appears to agree that she cannot bring an action on behalf of V.G. pro se, but argues that the Court must permit her to obtain counsel and proceed with her action. See id. Plaintiff further objects to Magistrate Judge Baxter's Report-Recommendation on the grounds that Plaintiff's grief and " unawareness of [the] full effects" of Defendant(s)' purported conduct justify equitable tolling of the statute of limitations. See id. at 3-4. Additionally, Plaintiff objects to Magistrate Judge Baxter's findings that she has not alleged conduct that violates the ADA or Rehabilitation Act. See id. at 5-6. Finally, Plaintiff asserts that Defendant(s) are not entitled to qualified immunity. See id. at 7-8.

B. Standard of review

When a plaintiff seeks to proceed IFP, " the court shall dismiss the case at any time if the court determines that . . . the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In making this determination, " the court has the duty to show liberality towards pro se litigants," however, " there is a responsibility on the court to determine that a claim has some arguable basis in law before permitting a plaintiff to proceed with an action in forma pauperis." Moreman v. Douglas, 848 F.Supp. 332, 333-34 (N.D.N.Y. 1994) (internal citations omitted).

" [I]n a pro se case, the court must view the submissions by a more lenient standard than that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F.Supp.2d 289, 295 (N.D.N.Y. 2003) (quoting Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations omitted). The Second Circuit has opined that the court is obligated to " make reasonable allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely because they lack a legal education. Id. at 295 (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)) (internal quotation marks omitted). However, this does not mean that a pro se litigant is excused from following procedural requirements. See id. (citing Showers v. Eastmond, 00 CIV. 3725, 2001 WL 527484, *2 (S.D.N.Y. May 16, 2001)).

Dispositive motions may be referred to a magistrate judge for proposed findings of fact and recommendations for the disposition of the motion by the district court. 28 U.S.C. § 636(b)(1)(B). For this type of referral, " [n]o consent of the parties is required because the magistrate judge is not issuing a final decision on the motion, but rather is recommending a decision to the district judge to which the plaintiff will have the opportunity to object if he disagrees with the determination." Van Gorder v. Lira, No. 9:08-CV-281, 2010 WL 1235328, *1 n.1 (N.D.N.Y. Mar. 15, 2010).

When a party files specific objections to a magistrate judge's report-recommendation, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However, when a party files " [g]eneral or conclusory objections, or objections which merely recite the same arguments [that he presented] to the magistrate judge," the court reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted).

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After the appropriate review, " the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

C. Application

In the present matter, Plaintiff appears to read Magistrate Judge Baxter's Order and Report-Recommendation as ordering the dismissal of Plaintiff's complaint. See Dkt. No. 7 at 1. However, Magistrate Judge Baxter in fact issued a recommendation to this Court that it dismiss Plaintiff's complaint. See Dkt. No. 4 at 12. As Magistrate Judge Baxter has not issued a dispositive order, Plaintiff's claim that the Court may not refer this case to Magistrate Judge Baxter for report and recommendation without Plaintiff's consent is unavailing.

Plaintiff's objection to the dismissal of her complaint on the ground that she should be permitted to seek counsel is not without merit. Plaintiff concedes that she cannot sue on behalf of her minor child pro se, but argues that under Cheung v. Youth Orchestra Foundation of Buffalo, Inc., 906 F.2d 59 (2d Cir. 1990), she should be permitted the opportunity to retain counsel. See Dkt. No. 7 at 2. The Court agrees that dismissing Plaintiff's complaint solely on this ground without permitting Plaintiff the opportunity to seek counsel would be improper.

However, the Court finds that Magistrate Judge Baxter correctly determined that Plaintiff's claims are time barred. As Magistrate Judge Baxter explained, Plaintiff's constitutional, ADA, and Rehabilitation Act claims are subject to a three-year statute of limitations period from the date her claim accrued. Construing Plaintiff's complaint liberally in light of her pro se status, to the extent that it can be read as alleging a tort claim against Defendant(s) acting in their official capacities, pursuant to the Federal Tort Claims Act, such claim must be presented to the appropriate federal agency within two years of accrual. See 28 U.S.C. § 2401(b). Plaintiff has not alleged that she raised a tort claim with the appropriate federal agency. Moreover, Plaintiff does not object to Magistrate Judge Baxter's finding that her claims accrued no later than 2006. Therefore, the statutes of limitations for Plaintiff's claims ran long prior to her filing of her complaint, even accepting February 7, 2014 as the filing date.

Plaintiff's assertion that the applicable limitations periods should have been tolled by her grief, mental anguish, and purported prior unawareness that Defendant(s)' alleged actions " may very well [have been] a contribution to V.G.'s untimely death" is unavailing. See Dkt. No. 7 at 3-4. Although mental illness can warrant equitable tolling of a statute of limitations in extraordinary circumstances, a plaintiff seeking equitable tolling on this basis " must offer a 'particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights.'" Bolarinwa v. Williams, 593 F.3d 226, 232 (2d Cir. 2010) (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). Here, Plaintiff has offered no evidence of her claimed mental anguish or how it affected her ability to file her claims within the statutory deadlines, which passed at least five to six years prior to her commencement of this action. Courts in this circuit have routinely rejected similar claims as insufficient to establish the extraordinary circumstances required for equitable tolling. See, e.g., Boos, 201 F.3d at 185 (rejecting equitable tolling where the plaintiff offered a conclusory, vague statement that she suffered from paranoia, panic attacks, and depression); Thomas v. Burmax Co., Inc., No. 12-CV-6363, 2013 WL 6681616, *5 (E.D.N.Y. Dec. 18, 2013) (denying equitable tolling where the plaintiff claimed he

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suffered from depression and post-traumatic stress disorder that rendered him in a debilitated state); Chalom v. Perkins, No. 97 Civ. 9505, 1998 WL 851610, *6 (S.D.N.Y. Dec. 9, 1998) (finding the plaintiff's claim of mental anguish and stress insufficient to satisfy the high standard for equitable tolling); Brundin v. United States, No. 95 Civ. 2689, 1996 WL 22370, *5 (S.D.N.Y. Jan. 19, 1996) (holding that the plaintiff's grief at the unexpected death of her father did not warrant equitable tolling).

Further, Plaintiff alleged no facts from which the Court can conclude that she was previously unaware of her claims against Defendant(s). " The concept of equitable tolling is grounded in the notion that a statute of limitations should not run against a plaintiff who lacks actual knowledge of the facts that comprise her cause of action." Krish v. Conn. Ear, Nose & Throat, Sinus & Allergy Specialists, P.C., 607 F.Supp.2d 324, 328 (D. Conn. 2009). Plaintiff has failed to demonstrate how she recently learned, more than eight years after Plaintiff's conviction for the murder of her child, that Defendant(s)' actions allegedly contributed to her daughter's death. Accordingly, Plaintiff has not alleged sufficient facts to warrant equitable tolling of the limitations periods applicable to her claims.

Although it is unnecessary for the Court to consider the sufficiency of Plaintiff's pleadings in light of the fact that Plaintiff's claims are time barred, the Court nonetheless concludes that Plaintiff's objections to Magistrate Judge Baxter's analysis of her ADA and Rehabilitation Act claims are unfounded. Plaintiff essentially argues that the ADA and Rehabilitation Act are applicable because her daughter was deprived of medical equipment she needed to perform daily life activities because of her handicap. See Dkt. No. 7 at 5-6. As discussed in the Order and Report-Recommendation, the ADA and Rehabilitation Act apply only where a disabled person is denied a benefit extended to non-handicapped individuals. Plaintiff does not allege that Defendant(s) denied V.G. any benefit or service provided to non-handicapped persons. Therefore, the Court finds that Plaintiff has not stated a claim under the ADA or Rehabilitation Act.

Finally, the Court notes that Magistrate Judge Baxter did not rely on qualified immunity as a ground for dismissing Plaintiff's complaint. To the extent that Plaintiff's discussion of qualified immunity can be read as objecting to Magistrate Judge Baxter's finding that Plaintiff has failed to allege constitutional violations with sufficient specificity to state a claim, Plaintiff's argument is unavailing. The only facts that Plaintiff alleged are that Defendant(s) " failed to provide V.G. with adequate medical care," " fail[ed] to provide V.G. with the proper adaptive equipment, [and] proper formula for proper nutrition," " sent [Private Darryl A. Griffin] home with a blue catheter as a substitution for V.G.'s Gastrointestine [sic] tube," and did not " construct a medicine pole for V.G." Dkt. No. 1 at 4-6; Dkt. No. 7 at 6. Plaintiff failed to state the nature of V.G.'s constitutional rights which were allegedly infringed upon, other than to name the First, Fifth, Eighth and Fourteenth Amendments. See Dkt. No. 1 at 5-6. Plaintiff's objections to Magistrate Judge Baxter's Report-Recommendation provided no further explanation as to Plaintiff's constitutional claims, merely stating that " V.G.'s rights were clearly violated." See Dkt. No. 7 at 7. Plaintiff's allegations are not sufficiently specific to indicate a deprivation of rights. Further, the Court agrees with Magistrate Judge Baxter that Plaintiff has not alleged any action taken by any individual Defendant that would establish personal involvement in the alleged constitutional violations.

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The Court recognizes that a pro se litigant should normally be granted leave to amend his or her complaint at least once " when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)) (internal quotation marks omitted). However, in light of the fact that Plaintiff's claims are time barred, Magistrate Judge Baxter correctly concluded that amendment would be futile.

Based on the foregoing, the Court finds that Magistrate Judge Baxter correctly determined that Plaintiff's complaint should be dismissed with prejudice.

D. Leave to appeal IFP

Pursuant to 28 U.S.C. § 1915(a)(3), the Court hereby certifies that any appeal of this Order sought by Plaintiff would not be taken in good faith. If on consideration of a plaintiff's application for leave to appeal IFP, the court is " conscientiously convinced that there is no substantial question for review and that an appeal will be futile, or . . . convinced that there is no reasonable basis for the claims of alleged error," the court must certify that the appeal is not taken in good faith. United States v. Farley, 238 F.2d 575, 576 (2d Cir. 1956) (internal citations and quotation marks omitted). In light of the fact that the limitations period for any conceivable claim by Plaintiff arising out of the facts alleged in her complaint passed well over five years ago and that Plaintiff has alleged no facts that would justify equitable tolling, the Court finds that an appeal by Plaintiff would not pose any non-frivolous issue for review. Therefore, the Court denies leave to appeal to the Court of Appeals IFP.


After carefully reviewing Magistrate Judge Baxter's Report-Recommendation, Plaintiff's submissions and the applicable law, and for the reasons stated herein, the Court hereby

ORDERS that Magistrate Judge Baxter's May 6, 2014 Order and Report-Recommendation (Dkt. No. 4) is ADOPTED in its entirety for the reasons stated therein; and the Court further

ORDERS that Plaintiff's complaint (Dkt. No. 1) is DISMISSED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in Defendants' favor and close this case; and the Court further

ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.



Hon. Andrew T. Baxter, United States Magistrate Judge.

The Clerk has sent to the Court for review a complaint, together with an application to proceed in forma pauperis (IFP) (Dkt. Nos. 1, 2), filed by plaintiff Mandi T. Griffin. (Dkt. Nos. 1, 2). Plaintiff brings this complaint on a form for complaints pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). (Compl. at 1) (Dkt. No. 1). However, in the body of the complaint, plaintiff cites the Americans with Disabilities Act, (" ADA" ),[1] and the Rehabilitation Act of 1973.[2]

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Plaintiff appears to be complaining about the medical care received by " V.G.," who the court assumes was plaintiff's child. Plaintiff seeks injunctive relief in the form of an order that " all Army bases [] be in compliance according to A.D.A. standards of medical care for children. (Compl. CM/ECF p.7). Plaintiff also seeks twenty million dollars in damages.

I. IFP Application

A review of plaintiff's IFP application shows that plaintiff declares she is unable to pay the filing fee. (Dkt. No. 7). This court agrees, and finds that plaintiff is financially eligible for IFP status. In addition to determining whether plaintiff meets the financial criteria to proceed IFP, the court must also consider the sufficiency of the allegations set forth in the complaint in light of 28 U.S.C. § 1915, which provides that the court shall dismiss the case at any time if the court determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B)(i) -(iii).

In determining whether an action is frivolous, the court must consider whether the complaint lacks an arguable basis in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Dismissal of frivolous actions is appropriate to prevent abuses of court process as well as to discourage the waste of judicial resources. Neitzke, 490 U.S. at 327; Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir. 1974). Although the court has a duty to show liberality toward pro se litigants, and must use extreme caution in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and has had an opportunity to respond, the court still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (finding that a district court may dismiss a frivolous complaint sua sponte even when plaintiff has paid the filing fee).

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is " plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell A. Corp., 550 U.S. at 555). The court will now turn to a consideration of the plaintiff's complaint under the above standards.

II. Facts

In her complaint, plaintiff claims that the defendants were deliberately indifferent to the medical care of " V.G." when they failed to provide V.G. with " the proper adaptive equipment, [and] proper formula for proper nutrition . . . ." (Compl. at CM/ECF p.5, First Cause of Action). Plaintiff claims that the U.S. Army's " deliberate negligence" revealed " malfeasance." (Compl. CM/ECF p.4). Plaintiff also states that defendants were " deliberately indifferent" to V.G.'s need for medical care when " Private Daryl A. Griffin" was sent home with a blue catheter as a substitute for V.G.'s gastrointestinal tube. Plaintiff states that " this action," as well as

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" the events surrounding such" violated V.G.'s Fifth, Eighth, and Fourteenth Amendment rights, and that V.G. was " entitled to equal protection from cruel and unusual punishment." (Compl. CM/ECF p.6, Second Cause of Action). Plaintiff claims that the defendants' deliberate indifference was " one prelude to [V.G.'s] untimely death." (Compl. CM/ECF p.4, Facts).

The court notes that there are multiple reasons why this case should be dismissed sua sponte, and will outline some of those reasons below.

IV. Standing

A. Legal Standards

Standing is the threshold question in every federal case and implicates the court's subject matter jurisdiction. Cohan v. Movtady, 751 F.Supp.2d 436, 439 (E.D.N.Y. 2010) (quoting Ross v. Bank of America, 524 F.3d 217, 222 (2d Cir. 2008)). Thus, standing may be raised sua sponte by the court. Cent. States Southeast & Southwest Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005) (citations omitted). To establish constitutional standing the plaintiff must have suffered an injury in fact, that is distinct and palpable, and the injury must be fairly traceable to the challenged action, and must be likely redressable by a favorable decision. Ross v. Bank of America, 524 F.3d at 222 (citing Denney v. Deutsche Bank AG, 443 F.3d 253, 263 (2d Cir. 2006) (quotation omitted)). In Morgan v. City of New York, 166 F.Supp.2d 817, 819 (S.D.N.Y. 2001), the court held that a parent could not bring a civil rights action based upon the deprivation of her daughter's constitutional rights.[3]

B. Application

It is unclear, but plaintiff appears to be suing on her own behalf for injuries to her child that were allegedly caused by defendants. Based on the above, plaintiff has no standing to do so. While there are situations in which a parent may bring an action on behalf of a child, plaintiff's child is dead, and plaintiff is not, and cannot purport to bring this action on V.G.'s behalf. See Torres v. Howell, No. 3:03-CV-2227, 2006 WL 1525942, at *8 (D. Conn. May 30, 2006) (discussing parental standing). The court in Torres held that there was no constitutional harm to a plaintiff's parental rights cognizable under section 1983 unless the parent-child relationship was targeted, such as when the issue is custody. Id. (citations omitted). See Love v. Riverhead Central School Dist., 823 F.Supp.2d 193, 200 (E.D.N.Y. 2011).

The same principle is applicable to any Bivens action asserted by this plaintiff. In this case, plaintiff discusses only the constitutional and statutory rights of V.G. There is never an assertion or discussion of plaintiff's rights or how they were violated by the allegedly inappropriate medical care. Thus, to the extent that plaintiff is attempting to bring a damage action based on the alleged constitutional or statutory violations suffered by her daughter, plaintiff has no standing to do so. See also Igartua v. Elmhurst Hosp. D-11 Psych. Ward, No. 09-CV-3287, 2011 WL 1337494, at *5 (E.D.N.Y. Mar. 17, 2011) (dismissing action to the extent that plaintiff was asking

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for recovery based on injuries to her infant).

V. Statute of Limitations

A. Legal Standards

Plaintiff has asserted claims under Bivens for alleged constitutional violations against her daughter by federal officials acting in their individual capacity. In a Bivens action, the victim of constitutional violations by federal officials may recover damages despite the absence of a statute specifically conferring such a cause of action. Robinson v. Overseas Military Sales, 21 F.3d 502, 510 (2d Cir. 1994). The statute of limitations for a Bivens action is borrowed from the state statute of limitations for personal injury actions under the law of the state in which the federal court sits, as is the limitations period for civil rights actions under 42 U.S.C. § 1983. Owens v. Okure, 488 U.S.235, 250-51, 109 S.Ct. 573, 102 L.Ed.2d 594 (1987) (section 1983); Gonzalez v. Hasty, 651 F.3d 318, 321 (2d Cir. 2011) ( Bivens ); Woolsey v. County of Suffolk, No. 11-CV-4806, 2014 WL 1010640, at *6 (E.D.N.Y. March 14, 2014) ( Bivens ) (citing Latimore-El v. Doe, No. 12-CV-621, 2012 WL 2131539, at *2 (E.D.N.Y. June 12, 2012)). The statute of limitations for ADA and Rehabilitation Act claims is also three years from the date of accrual. Chisholm v. United of Omaha Life Ins. Co., 514 F.Supp.2d 318, 326 (D. Conn. 2007) (citations omitted) (ADA); Doyle v. United Airlines, Inc., 914 F.Supp.2d 325, 334 (E.D.N.Y. 2012) (Rehabilitation Act).

Thus, unless the limitations period is tolled for some reason, a plaintiff must file her Bivens action within three years of the accrual of each cause of action. Federal law, governs the question of when the claim accrues. Covington v. City of New York, 171 F.3d 117, 121 (2d. Cir. 1999) (citing Morse v. University of Vermont, 973 F.2d 122, 125 (2d. Cir. 1992)). Generally, under federal law, a cause of action accrues 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) (internal quotation marks omitted)). Although federal law determines when plaintiff's claim accrues, state tolling rules determine whether the limitations period has been tolled. Abbas v. Dixon, 480 F.3d 636, 641 (2d Cir. 1997).

Generally, the court will also consider whether the statute of limitations should be " equitably" tolled. However, equitable tolling is applied only in " rare and exceptional circumstances." Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005). The party seeking equitable tolling must establish that extraordinary circumstances prevented her from filing the complaint on time, and that she acted with reasonable diligence throughout the period that she seeks to toll. Doe v. Menefee, 391 F.3d 147, 159 (2d Cir. 2004) (citation omitted). The party seeking tolling bears the burden of proving diligence. Cekic v. INS, 435 F.3d 167, 171 (2d Cir. 2006).

Although the statute of limitations is an affirmative defense, and must generally await a defense motion, dismissal is appropriate when the facts supporting the statute of limitations defense are set forth in the papers that plaintiff herself submitted. Messeroux v. Maimonides Medical Center, No. 11-CV-5343, 2013 WL 2414690, at *1 (E.D.N.Y. May 31, 2013) (citing Leonhard v. United States, 633 F.2d 599, 609 n.11 (2d Cir. 1980)). This action is one of the cases in which the running of the statute of limitations is clear from the face of the complaint and the facts stated by plaintiff even though she does not indicate when the alleged constitutional violations occurred.

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B. Application

One of the problems in this complaint is that plaintiff never indicates when the defendants' actions allegedly occurred. With such an omission, normally, it would be impossible to determine if the statute of limitations had run. However, the court properly takes judicial notice that plaintiff is now incarcerated for the murder of her three-year-old handicapped child. See People v. Griffin, 48 A.D.3d 1233, 851 N.Y.S.2d 808 (4 Dep't 2008). Plaintiff has been incarcerated since 2006 for this crime.

Clearly, plaintiff's claims with respect to her daughter would have accrued no later than the date of V.G.'s death, which obviously occurred before plaintiff was convicted of the homicide. Even if plaintiff were referring to another child, plaintiff has still been incarcerated since 2006, and anything that occurred with respect to any child would have occurred prior to plaintiff's incarceration. Although the court did not receive plaintiff's complaint until May 1, 2014, plaintiff signed the complaint on February 7, 2014. (Compl. at p.7). Even giving plaintiff the benefit of finding that the complaint was filed on February 7, 2014, the statute of limitations for all plaintiff's claims has long since run.

The court has considered possible equitable tolling of the statute of limitations, and finds that there is no basis for equitable tolling in this action. Whatever happened prior to her child's death was well known to the plaintiff, and there is no reason to have waited this long to file an action. Thus, the case may be dismissed based on statute of limitations grounds.

VI. Personal Involvement

A. Legal Standards

In order to maintain a civil right action, a plaintiff " must show some tangible connection between the constitutional violation alleged and [a] particular defendant." Toole v. Connell, 9:04-CV-724 (LEK/DEP), 2008 WL 4186334, at *6 (N.D.N.Y. Sept. 10, 2008). Personal involvement is a prerequisite to the assessment of damages in a section 1983 case, and respondeat superior is an inappropriate theory of liability. Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citation omitted); Richardson v. Goord, 347 F.3d 431, 435 (2d Cir. 2003). The same law is applicable to Bivens actions.

In Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986), the Second Circuit detailed the various ways in which a defendant can be personally involved in a constitutional deprivation, and thus be subject to individual liability. A supervisory official is personally involved if the supervisor directly participated in the infraction. Id. The defendant may have been personally involved if, after learning of a violation through a report or appeal, he or she failed to remedy the wrong. Id. Personal involvement may also exist if the official created a policy or custom under which unconstitutional practices occurred, or allowed such a policy or custom to continue. Id. Finally, a supervisory official may be personally involved if he or she were grossly negligent in managing subordinates who caused the unlawful condition. Id. See also Iqbal v. Hasty, 490 F.3d 143, 152-53 (2d Cir. 2007) (citing Colon v. Coughlin, 58 F.3d 865, 873) (2d Cir. 1995)), rev'd on other grounds, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

B. Application

In this case, plaintiff does not actually name any defendants. She names " the General" and John or Jane Does. She does not allege how the General at Fort Drum could possibly have been involved in giving Daryl Griffin an incorrect catheter for V.G. Plaintiff states generally that the defendants' lack of proper medical care

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somehow was a " prelude" to V.G.'s untimely death. Plaintiff has simply failed to allege either personal involvement or any constitutional violations with enough specificity to state a claim. It is well-settled that " complaints relying on civil rights statutes are insufficient unless they contain some specific allegation of fact indicating a deprivation of rights, instead of a litany of general conclusions that shock but have no meaning." Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).

VII. ADA and Rehabilitation Act

A. Legal Standards

In order to state a claim under section 504 of the Rehabilitation Act, a plaintiff must show that he or she (1) has a disability for purposes of the Act; (2) that she was " otherwise qualified" for a benefit that she was denied; (3) that she was denied the benefit solely because of her disability; and (4) that the benefit is part of a program or activity that receives federal financial assistance. Romano v. SLS Residential, Inc. 246 F.R.D. 432, 440 (S.D.N.Y. 2007). Under the ADA, the plaintiff must establish that she (1) is a qualified individual with a disability; (2) is being excluded from participation in, or being denied benefits of some service, program or activity by reason of his or her disability; and (3) the entity providing the service is a public entity. Allah v. Goord, 405 F.Supp.2d at 274.

The Second Circuit has held that section 504 prohibits discrimination against a handicapped individual " only where the individual's handicap is unrelated to, and thus improper to consideration of, the services in question." Cushing v. Moore, 970 F.2d 1103, 1109 (2d Cir. 1992). In Cushing, the court found that plaintiffs did not state a claim for denial of methadone by a methadone clinic because the Rehabilitation Act does not create a cause of action based on a handicap that gives rise to the need for the services. Id. In Romano, the court stated that if the psychiatric services were the very services that brought plaintiffs to the program, then plaintiffs could not bring suit under the Rehabilitation Act challenging those services. 246 F.R.D. at 440 (citing Grzan v. Charter Hosp., 104 F.3d 116, 123 (7th Cir. 1997) (Section 504 does not provide a federal malpractice tort remedy)).

In Doe v. Pfrommer, the Second Circuit made a similar finding in an action in which plaintiff was challenging the substance of services provided to him through a vocational program for which he was qualified only because of his disability. Doe v. Pfrommer, 148 F.3d 73, 83-84 (2d Cir. 1998). The court in Doe stated that the purpose of the ADA and the Rehabilitation Act was to ensure that handicapped individuals receive " evenhanded treatment" in relation to non-handicapped individuals. Id. at 83. Thus, neither the ADA nor the Rehabilitation Act established an obligation to meet a disabled persons needs in relation to other disabled persons. Id. (citations omitted).

B. Application

In this case, even liberally construed, plaintiff is simply attempting to bring a malpractice action in the guise of an ADA or Rehabilitation Act claim because V.G. was handicapped. Plaintiff's claims (even assuming that she could bring them on behalf of her child) have nothing to do with the child being denied the benefits of a program or the benefit of services because of her handicap. Thus, plaintiff states no claims under either statute.

VII. Opportunity to Amend

A. Legal Standard

Generally, when the court dismisses a pro se complaint sua sponte, the court should afford the plaintiff the opportunity

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to amend at least once, however, leave to re-plead may be denied where any amendment would be futile. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

B. Application

In this case, the court finds that any attempt of the plaintiff to amend this complaint would be futile. There is no amendment that would allow plaintiff, acting pro se, to bring an action on her own behalf, based upon injuries to her daughter. There is also no amendment to this action that would allow plaintiff to state a claim within the statute of limitations, nor would she be able to amend to state a claim against any defendants, named or otherwise, under the Constitution or under any of the statutes she lists.

WHEREFORE, based on the findings above, it is

ORDERED, that plaintiff's motion to proceed IFP (Dkt. No. 2) is GRANTED FOR PURPOSES OF FILING ONLY, and it is

RECOMMENDED, that the plaintiff's complaint be DISMISSED WITH PREJUDICE pursuant to 28 U.S.C. § 1915(e)(2)(B)(i)-(ii), and it is

ORDERED, that the Clerk of the Court serve a copy of this Order and Report-Recommendation on plaintiff by regular mail.

Pursuant to 28 U.S.C. § 636 (b)(1) and Local Rule 72.1(c), the parties have FOURTEEN (14) DAYS within which to file written objections to the foregoing report. Any objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of HHS, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 6(a), 6(e), 72.

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