16‐54
Lopez v. Annucci
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A
PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED
BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in
the City of New York, on the 9th day of May, two thousand seventeen.
PRESENT: GUIDO CALABRESI,
DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
ORLANDO LOPEZ,
Plaintiff‐Appellant,
v. 16‐54
ANTHONY J. ANNUCCI, COMMISSIONER, NEW
YORK STATE DEPARTMENT OF CORRECTIONS
AND COMMUNITY SUPERVISION, JOHN DOE,
DIRECTOR OF MEDICAL, DOCS NEW YORK STATE,
NEW YORK STATE OFFICE OF MENTAL HEALTH,
WILLIAM GOODMAN, DOCTOR, ELMIRA
CORRECTIONAL FACILITY, DONALD SAWYER,
OFFICE OF MENTAL HEALTH NYS,
Defendants‐Appellees.
‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐x
FOR PLAINTIFF‐APPELLANT: MATTHEW B. BYRNE, Gravel & Shea PC,
Burlington, Vermont.
FOR DEFENDANTS‐APPELLEES: No appearance.
FOR AMICUS CURIAE: Kate H. Nepveu, Assistant Solicitor General,
Andrea Oser, Deputy Solicitor General,
Barbara D. Underwood, Solicitor General, for
Eric T. Schneiderman, Attorney General of the
State of New York, Albany, New York.
Appeal from the United States District Court for the Western District of
New York (Siragusa, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is VACATED
and the case is REMANDED for further proceedings consistent with this order.
Plaintiff‐appellant Orlando Lopez appeals from a judgment of the district
court entered December 4, 2015. By decision and order filed December 3, 2015, the
court dismissed sua sponte and with prejudice plaintiffʹs complaint as barred by the
statute of limitations.1 We assume the partiesʹ familiarity with the underlying facts,
procedural history, and issues on appeal.
In July 2010, plaintiff filed, pro se, the first version of his complaint in a
prior and related case in the district court and named the New York State Office of
1 As authorized by statute, the court dismissed plaintiffʹs claims prior to service on
defendants. 28 U.S.C. § 1915(e)(2)(B)(ii) (requiring dismissal ʺat any timeʺ if action fails to state a claim);
28 U.S.C. § 1915A (requiring dismissal ʺas soon as practicableʺ if complaint fails to state a claim). Because
defendants were never served in this case, they are not parties to this appeal. See Lewis v. New York, 547
F.2d 4, 5‐6 (2d Cir. 1976). We nonetheless have appellate jurisdiction over the appeal of the sua sponte
dismissal. See McEachin v. McGuinnis, 357 F.3d 197, 200‐01 (2d Cir. 2004). We directed the New York
State Attorney Generalʹs Office to file a brief as amicus curiae. No. 16‐54, ECF No. 90 (Apr. 4, 2017). That
brief was submitted on April 18, 2017. No. 16‐54, ECF No. 95 (Apr. 18, 2017).
‐ 2 ‐
Mental Health and the New York State Department of Corrections as defendants. The
complaint raised claims under 42 U.S.C. § 1983 and alleged that plaintiff received
improper medical treatment while incarcerated at the Elmira Correctional Facility in
Elmira, New York. Plaintiff asserted that defendants prescribed him anti‐psychotic
medication in 2008 or 2009 that, in combination with their failure to monitor his health,
caused him to fall into a coma on January 15, 2009, and to later develop diabetes.
In August 2010, plaintiff filed, pro se, an amended complaint against
Elmira Correctional Facility, its superintendent, and Dr. William Goodman, and
clarified that it was Dr. Goodman who prescribed him medication and failed to monitor
his health. The district court (Larimer, J.) dismissed the Elmira Correctional Facility and
its superintendent as defendants on the grounds of immunity and failure to state a
claim, leaving Dr. Goodman as the sole defendant in the case. Plaintiff served Dr.
Goodman in September 2010.
In June 2013, the district court (Siragusa, J.)2 dismissed plaintiffʹs claims
without prejudice for failure to exhaust administrative remedies under 42 U.S.C.
§ 1997e(a) and entered judgment against plaintiff. Plaintiff then filed a claim with the
Inmate Grievance Review Committee in July 2013. Plaintiff also filed two motions for
reconsideration with the district court, which denied the first motion in September 2013
2 The case was reassigned to Judge Charles J. Siragusa in August 2011.
‐ 3 ‐
and the second in November 2013. In January 2014, the Central Office Review
Committee denied the administrative claim as untimely.
In August 2014, plaintiff filed, pro se, a second amended complaint that
(1) raised essentially the same claims, (2) asserted new claims alleging that facility
employees were not properly trained or equipped to monitor inmate health and
provide follow‐up care after changing inmate medication, and (3) included information
on the denial of his administrative claim. Because the case had already been closed, the
district court directed the Clerk of Court to re‐file the second amended complaint as an
original complaint in a new action.
The instant action was initiated in September 2014 with the re‐filing of the
complaint. In its April 2015 decision and order granting plaintiff leave to proceed in
forma pauperis, the district court determined that the complaint ʺraise[d] clear statute of
limitations issuesʺ and directed plaintiff to submit a written response explaining why
the action should not be dismissed as untimely. App. at 21‐22. Plaintiff submitted a
letter asserting that (1) he had, in fact, submitted his claims before the expiration of the
limitations period, (2) the limitations issue had not been raised before, and (3) he had
exhausted his administrative remedies as instructed by the court. In the letter, plaintiff
also asserted other allegations of retaliatory actions and complained of his lack of access
to a law library.
‐ 4 ‐
By decision and order filed December 3, 2015, the district court dismissed
plaintiffʹs claims with prejudice as time‐barred after concluding that (1) he had not
alleged a justification for his failure to exhaust administrative remedies before the end
of the limitations period, and (2) there was no alternative basis for equitable tolling
because his claims would be untimely even if the limitations period were tolled for the
one‐month period of his hospitalization.
On appeal, plaintiff argues, inter alia and through counsel, that the court
improperly dismissed his claims as untimely without considering whether, as a pro se
litigant, he alleged ongoing misconduct under the continuing violation doctrine. We
agree.
ʺWe review de novo a district courtʹs dismissal of complaints under 28
U.S.C. §§ 1915A and 1915(e)(2)(B),ʺ McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004), the statutory provisions governing the dismissal of actions initiated by inmate‐
plaintiffs. ʺWe accept as true all facts described in the complaint but need not accept
ʹconclusory allegations or legal conclusions couched as factual [] allegations.ʹʺ Milan v.
Wertheimer, 808 F.3d 961, 963 (2d Cir. 2015) (per curiam) (alteration in original) (quoting
Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)). Because the plaintiff in this case filed a
pro se complaint, we also ʺmust liberally construe his pleadings, and must interpret his
complaint to raise the strongest arguments it suggests.ʺ Abbas v. Dixon, 480 F.3d 636,
639 (2d Cir. 2007).
‐ 5 ‐
The continuing violation doctrine allows a plaintiff to challenge acts of
misconduct occurring outside the statute of limitations period if at least one act of the
ongoing misconduct occurred within the limitations period. Shomo v. City of N.Y., 579
F.3d 176, 181‐82 (2d Cir. 2009). In the context of an Eighth Amendment claim of
deliberate indifference to medical needs, a plaintiff asserting ʺa continuing violation for
statute of limitations purposes . . . must ʹallege 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 furtherance of that policy.ʹʺ Id. at 182 (alteration in original)
(quoting Harris v. City of N.Y., 186 F.3d 243, 250 (2d Cir. 1999)). The purpose of these
requirements is to ʺscreen[] out Eighth Amendment 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.ʺ Id.
Here, the district court concluded that plaintiffʹs claims were barred by the
statute of limitations without assessing whether his complaint alleged a continuing
failure to monitor inmate health and provide follow‐up care after changes in
medication. The pro se complaint, read broadly, should have been construed as alleging
an ongoing policy of deliberate indifference to serious medical needs. See id. (describing
the first requirement under the continuing violation doctrine); Abbas, 480 F.3d at 639
(requiring liberal construction of pro se complaints).
‐ 6 ‐
In addition, our cases recognize a number of grounds for equitable tolling.
See, e.g., Abbas, 480 F.3d at 642 (explaining equitable tolling under New York law);
Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (describing when federal courts
apply equitable tolling). It appears that the district court considered only one basis for
equitable tolling, and that is plaintiffʹs period of hospitalization. There may, however,
be other bases for equitable tolling. In this circuit ʺ[w]e have applied equitable tolling
only in ʹrare and exceptional circumstances,ʹ where we found that ʹextraordinary
circumstancesʹ prevented a party from timely performing a required act, and that the
party ʹacted with reasonable diligence throughout the period he [sought] to toll.ʹʺ
Walker, 430 F.3d at 564 (alteration in original) (quoting Doe v. Menefee, 391 F.3d 147, 159
(2d Cir. 2004)). Here, it does not appear that the district court considered whether such
circumstances existed.
For these reasons, we vacate the decision and judgment dismissing
plaintiffʹs claims and remand the matter for the district court to address the timeliness
of the claims under the continuing violation and equitable tolling doctrines.
We note that plaintiffʹs appeal in this case raises a host of issues,
including: (1) when plaintiffʹs claims accrued; (2) whether the statute of limitations was
tolled for the duration of the first lawsuit, see, e.g., Clifford v. Gibbs, 298 F.3d 328, 333 (5th
Cir. 2002) (tolling for duration of federal lawsuit where complaint was dismissed
without prejudice, and for duration of subsequent administrative exhaustion); McCoy v.
‐ 7 ‐
Goord, 255 F. Supp. 2d 233, 253‐54 (S.D.N.Y. 2003) (raising issue of whether time spent in
federal court before dismissal would be tolled); (3) whether plaintiff should have been
permitted to reopen the first lawsuit rather than being required to commence a new
lawsuit, in light of the timing concerns; (4) when plaintiff received notice of the denial
of his administrative grievance (and when tolling for exhaustion ended); (5) the
applicability of the New York tolling statutes, including N.Y. C.P.L.R. § 205(a); and
(6) the constitutionality of New Yorkʹs inmate grievance process as an administrative
remedy. We do not express a view on any of these questions, nor do we suggest that all
these issues must be resolved. But we do think it would be helpful, if it does reach the
issues, for the district court to obtain input from the State of New York and to consider
appointing counsel for plaintiff.
Accordingly, we VACATE the decision and judgment of the district court
and REMAND the matter for further proceedings consistent with this order.
FOR THE COURT:
Catherine OʹHagan Wolfe, Clerk
‐ 8 ‐