United States District Court, N.D. New York
DARRICK LEE SIDES Elmira Correctional Facility Plaintiff, pro
OF THE NEW YORK CHRISTOPHER J. HUMMEL, AAG STATE ATTORNEY
GENERAL The Capitol Albany, New York 12224 Attorney for
D'AGOSTINO, U.S. DISTRICT JUDGE
October 5, 2015,  Plaintiff pro se Darrick Lee
Sides commenced this civil rights action, pursuant to 42
U.S.C. § 1983, in the Northern District of New York.
See Dkt. No. 1. Plaintiff alleges that Defendants
Doctor Paolano, Dr. Jon Miller, Nurse P. Snyder, and Nurse P.
Schmidt were deliberately indifferent to his serious medical
needs in violation of the Eighth Amendment. See Id.
Presently before the Court is Magistrate Judge Christian F.
Hummel's Report-Recommendation and Order recommending
that the Court grant Defendants' motion for summary
judgment. See Dkt. No. 48. Plaintiff submitted
objections to the Report-Recommendation and Order.
See Dkt. No. 49. For the following reasons, the
Report-Recommendation and Order is adopted in its entirety.
claims arise out of alleged medical indifference at Coxsackie
Correctional Facility ("Coxsackie CF").
See Dkt. No. 1 at 1. On July 31, 2012, Plaintiff went
to the Coxsackie CF infirmary due to hemorrhoids, a medical
condition that had afflicted Plaintiff since 2009.
See Dkt. No. 40-5 at ¶ 8; Dkt. No. 40-6 at
¶ 7. Defendant Paolano ordered blood tests and
recommended a surgical consultation after he determined that
Plaintiff's symptoms were no longer responding to
treatment. See Dkt. No. 40-5 at ¶ 8. On August
8, 2012, Defendant Miller reviewed the results of the blood
tests and noted to the nursing staff that Plaintiff should be
scheduled for an additional evaluation appointment.
See Dkt. No. 40-6 at ¶ 14.
point in August, Plaintiff filed a grievance regarding his
condition because he was suffering excessive rectal bleeding
and feeling anemic. See Dkt. No. 41 at 13. However,
Plaintiff did not pursue this grievance after a grievance
supervisor told Plaintiff that he was scheduled to see a
specialist. See id. On August 22, 2012, Plaintiff
had a consultation with a non-party doctor who recommended a
colonoscopy and an excisional hemorrhoidectomy. See
Dkt. No. 40-5 at ¶ 12. Defendant Miller received and
reviewed this recommendation on August 28, 2012. See
Dkt. No. 40-6 at ¶ 18. On September 25, 2012, Plaintiff
met with Defendant Paolano who ordered additional blood
tests. See Dkt. No. 40-5 at ¶ 16.
September 28, 2012, Defendant Miller sent Plaintiff to Albany
Medical Center ("AMC") for further treatment after
reviewing the second round of blood tests. See Dkt.
No. 40-6 at ¶ 24. Upon arrival at AMC, Plaintiff was
given a blood transfusion and a colonoscopy. See Id.
at ¶ 25. The colonoscopy revealed that Plaintiff had
stage III hemorrhoids. See Id. On October 4, 2012,
Plaintiff underwent a hemorroidectomy. See Id.
October 6, 2012, Plaintiff was discharged from AMC and
returned to Coxsackie CF. See Id. On October 9,
2012, Plaintiff was discharged from the Coxsackie CF
infirmary. See Dkt. No. 40-5 at ¶ 20.
October 2012, Plaintiff requested a copy of his medical
records. See Dkt. No. 41 at 15. In July 2013,
Plaintiff initiated a grievance because he had still not
received them. See Dkt. No. 40-3 at 8. On July 25,
2013, the Inmate Grievance Resolution Committee accepted
Plaintiff's grievance and made Plaintiff's medical
records available to him. See Id. at 9.
March 1, 2017, Defendants filed a motion for summary
judgment. See Dkt. No. 40. In their motion,
Defendants argue that Plaintiff's claims should be
dismissed for the following reasons: (1) Plaintiff failed to
file his complaint within the applicable statute of
limitations; (2) Plaintiff failed to exhaust his
administrative remedies; (3) Defendants were not deliberately
indifferent to Plaintiff's medical needs; and (4)
Defendants are entitled to qualified immunity. See
Dkt. No. 40-8 at 2. On April 5, 2017, Plaintiff filed a
response in opposition to Defendants' motion.
See Dkt. No. 43. With respect to the statute of
limitations, Plaintiff argues that his claim is timely
because he did not discover that his medical treatment had
been delayed until July 2013. See Dkt. No. 43-1 at
12-13. Magistrate Judge Hummel interpreted Plaintiff's
argument as a challenge to the accrual date and a claim for
equitable tolling. See Dkt. No. 48 at 9.
January 8, 2018, Magistrate Judge Hummel issued a
Report-Recommendation and Order recommending that this Court
dismiss Plaintiff's claims as time-barred. See
Id. at 18. Magistrate Judge Hummel determined that
Plaintiff's claim accrued when he knew, or had reason to
know, of his injury. See Id. at 9 (quoting
Whitfield v. O'Connell, No. 09 Civ. 1925, 2010
WL 1010060, *5 (S.D.N.Y. Mar. 18, 2010), aff'd,
402 Fed.Appx. 563 (2d Cir. 2010)). The Report-Recommendation
and Order explained that "[d]elay in discovering the
cause of the injury does not prevent the claim from accruing
because it is discovery of the injury, not discovery of the
other elements of the claim, [that] starts the clock."
Id. (quoting Rotella v. Wood, 528 U.S. 549,
555 (2000)). Thus, Plaintiff became aware of the violation in
"August 2012, when he knew he suffered from a physical
condition or injury and believed he was not obtaining
adequate attention for that condition or injury and filed a
grievance about such care." Id. at 12 (citing
Curtis v. Williams, No. 11 Civ. 1186, 2013 WL
1915447, *8 (S.D.N.Y. May 9, 2013)). However, under the
continuing violations doctrine, a medical indifference claim
does not accrue until an inmate begins to receive proper
medical treatment. See Id. at 15 (citing Jervis
v. Mitcheff, 258 Fed.Appx. 3, 5-6 (7th Cir. 2007)). As
Plaintiff's treatment did not begin until he was admitted
to AMC, Magistrate Judge Hummel found that the effective
accrual date was September 28, 2012. See Id. at 16.
Judge Hummel rejected Plaintiff's equitable tolling
argument. See Id. at 16-18. He noted that even
though Plaintiff requested to see his medical records in
October 2012 and did not receive them until July 2013,
"[o]nce [Plaintiff] realized he was not obtaining the
records, he failed to act diligently." Id. at
17. As such, Plaintiff failed to demonstrate the necessary
diligence required for equitable tolling. See Id. at
18. Given that Plaintiff filed his complaint on October 5,
2015, the three year statute of limitations for a 42 U.S.C.
§ 1983 claim expired on September 28, 2015, and
Plaintiff was not entitled to equitable tolling, Magistrate
Judge Hummel recommended that the Court find Plaintiff's
claims time barred and grant Defendants' motion for
summary judgment. See id.
may grant a motion for summary judgment only if "the
court determines that there is no genuine issue of material
fact to be tried and that the facts as to which there is no
such issue warrant judgment for the moving party as a matter
of law." Chambers v. TRM Copy Ctrs. Corp., 43
F.3d 29, 36 (2d Cir. 1994) (citations omitted). When
analyzing a summary judgment motion, the court
"'cannot try issues of fact; it can only determine
whether there are issues to be tried.'" Id.
at 36-37 (quotation and other citation omitted).
assessing the record to determine whether any such issues of
material fact exist, the court is required to resolve all
ambiguities and draw all reasonable factual inferences in
favor of the nonmoving party. See Id. at 36 (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255,
106 S.Ct. 2505, 2513-14, 91 L.Ed.2d 202 (1986)) (other
citations omitted). Where the non-movant either does not
respond to the motion or fails to dispute the movant's
statement of material facts, the court may not rely solely on
the moving party's statement of material facts; rather,
the court must be satisfied that the citations to evidence in
the record support the movant's assertions. See
Giannullo v. City of N.Y., 322 F.3d 139, 143 n.5 (2d
"in 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.
2007) (quoting Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 30 L.Ed.2d 652 (1972)) (other citations
omitted). "Indeed, the Second Circuit has stated that
'[i]mplicit in the right to self-representation is an
obligation on the part of the court to make reasonable
allowances to protect pro se litigants from
inadvertent forfeiture of important rights because of their
lack of legal training.'" Govan, 289
F.Supp.2d at 295 (quoting Traguth v. Zuck, 710 F.2d
90, 95 (2d Cir. 1983)). "This liberal standard, however,
does not excuse a pro ...