United States District Court, N.D. New York
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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MANDI GRIFFIN, Plaintiff, Pro se, Bedford Hills, New York.
MEMORANDUM-DECISION AND ORDER
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
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).
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).
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
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) ...