Sides v. Paolano

20-3241-pr
Sides v. Paolano

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 COURT=S 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 ASUMMARY ORDER@). A PARTY CITING TO 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 20th day of September, two thousand twenty-one.

PRESENT:
DENNIS JACOBS,
SUSAN L. CARNEY,
RICHARD J. SULLIVAN,
Circuit Judges.
_____________________________________

Darrick Lee Sides,

Plaintiff-Appellant,

v. 20-3241

Doctor Paolano, Coxsackie Medical Unit,
individually and officially, Doctor Jon Miller,
Coxsackie Medical Unit, individually and
officially, P. Snyder, Nurse Coxsackie Medical
Unit, individually and officially, P. Schmidt,
Nurse Coxsackie Medical Unit, individually and
officially,

Defendants-Appellees,

V. Baldwin, Nurse Administrator Coxsackie
Medical Unit, individually and officially, James
Weisberger, Laboratory Director; BioReference
Lab, Inc., individually and officially,
BioReference Laboratories, Inc.,
 Defendants.
_____________________________________

FOR PLAINTIFF-APPELLANT: Darrick Lee Sides, pro se, Sonyea, NY.

FOR DEFENDANTS -APPELLEES: Patrick A. Woods, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, and Victor Paladino, Senior
Assistant Solicitor General, on the brief) for
Letitia James, Attorney General of the State
of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Northern District of

New York (D’Agostino, J.; Hummel, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Darrick Lee Sides, pro se and incarcerated, sued several employees of the New York State

Department of Corrections and Community Supervision (“DOCCS”)—including Dr. Albert

Paolano, Dr. Jon Miller, and Nurse Phyllis Schmidt—under 42 U.S.C. § 1983, alleging Eighth

Amendment violations during the time that he was imprisoned at Coxsackie Correctional Facility

between 2008 and 2012. He claimed that the named defendants were deliberately indifferent to

his medical needs when they delayed his referral to a specialist to treat his hemorrhoids and rectal

bleeding and waited 51 days after the specialist recommended surgery to refer him for that

intervention. Defendants sought summary judgment, arguing, among other things, that Sides’s

claims were time-barred. The district court granted the motion and Sides appealed. In 2019, this

Court vacated and remanded, concluding that Sides’s complaint was untimely, but instructing the

district court to determine in the first instance whether equitable tolling applied to excuse the

complaint’s untimeliness. See Sides v. Paolano, 782 F. App’x 49, 51 (2d Cir. 2019).
 On remand, Sides argued that the defendants’ failure to timely provide him with a notary

prevented him from timely filing suit. In 2020, the district court granted summary judgment for

defendants, holding that Sides was not entitled to equitable tolling because he had shown neither

the necessary extraordinary circumstances (in that notarization of his complaint was not required)

nor that he had diligently pursued his claims during the limitations period (either through

grievances or suit). See Sides v. Paolano, No. 915-cv-1203 (MAD, CFH), 2020 WL 6530751, at

*5–6 (N.D.N.Y. June 3, 2020), report and recommendation adopted, No. 915-cv-1203 (MAD,

CFH), 2020 WL 5511414, at *2 (N.D.N.Y. Sept. 14, 2020). Sides now appeals the district court’s

2020 decision. We assume the parties’ familiarity with the underlying facts, the procedural

history of the case, and the issues on appeal, to which we refer only as needed to explain our

decision to affirm.

We review de novo a grant of summary judgment, “resolv[ing] all ambiguities and

draw[ing] all inferences against the moving party.” Garcia v. Hartford Police Dep’t, 706 F.3d

120, 127 (2d Cir. 2013). “Summary judgment is proper only when, construing the evidence in

the light most favorable to the non-movant, ‘there is no genuine dispute as to any material fact and

the movant is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344

(2d Cir. 2011) (quoting Fed. R. Civ. P. 56(a)).

We have already determined as a matter of law that Sides’s claim accrued “no later than

September 28, 2012”; that the limitations period expired three years later; and that Sides filed his

complaint in “early October” 2015, after the limitations period expired. Sides, 782 F. App’x at

50. Thus, as we previously ruled, Sides’s complaint “was untimely, unless equitable tolling

applie[d].” Id.

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 Generally, a party is entitled to equitable tolling of a statute of limitations only upon a

showing “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary

circumstance stood in his way and prevented timely filing.” Menominee Indian Tribe of Wis. v.

United States, 577 U.S. 250, 255 (2016). 1 The party “seeking equitable tolling bears the burden”

of establishing both elements. A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 144 (2d Cir.

2011). We review denials of equitable tolling for abuse of discretion. Id.

Sides did not carry his burden and the district court committed no abuse of discretion in so

ruling. First, Sides did not show that he diligently pursued his claims. Generally, a plaintiff

seeking equitable tolling must show a “level of diligence which could reasonably be expected in

the circumstances,” Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011), and that he or she “acted

with reasonable diligence throughout the period he sought to toll,” Walker v. Jastremski, 430 F.3d

560, 564 (2d Cir. 2005); see also Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000) (holding

“if the petitioner, acting with reasonable diligence, could have filed on time notwithstanding the

extraordinary circumstances,” then equitable tolling was not available). Sides testified during his

deposition that in August 2012, he filed a grievance in the form of a letter concerning his delayed

treatment by a specialist. Rather than process the grievance, the grievance program supervisor

advised Sides that an appointment had already been scheduled and that he should consult with a

supervisor if he did not see the specialist. Sides further testified that he saw a specialist about

possible surgery on August 22, 2012, and that he did not take any other action regarding the

grievance. He also acknowledged that he did not file any other grievances regarding the quality

1
Unless otherwise noted, in quoting caselaw, this Order omits all alterations, citations, footnotes, and
internal quotation marks.

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of his medical treatment even after he obtained his medical records in July 2013.

Sides fails altogether to explain why he did not file his complaint during the two years from

July 2013, when he obtained his medical records, to late September 2015, when the statute of

limitations expired. Rather, he waited until the last days of the limitations period and offered no

explanation for the delay. See Pace v. DiGuglielmo, 544 U.S. 408, 419 (2005) (“Had petitioner

advanced his claims within a reasonable time of their availability, he would not now be facing any

time problem, state or federal.”). He therefore failed to meet his burden of showing that he “acted

with reasonable diligence throughout the period he sought to toll.” Walker, 430 F.3d at 564; see

also Irwin v. Dep’t of Veterans Affs., 498 U.S. 89, 96 (1990) (“We have allowed equitable tolling

in situations where the claimant has actively pursued his judicial remedies by filing a defective

pleading during the statutory period . . . .”); Paige v. Police Dep’t of City of Schenectady, 264 F.3d

197, 200 (2d Cir. 2001) (holding equitable tolling did not apply even where the defendants

concealed some relevant facts because the plaintiff had sufficient information to pursue her claim

within the limitations period). The district court therefore did not err in concluding that Sides did

not pursue his claim with due diligence.

In addition, Coxsackie Correctional Facility’s failure to provide Sides with a notary on or

soon after September 21, 2015 (the date when Sides requested that the prison provide a notary to

assist him in finalizing his complaint) did not constitute an “extraordinary circumstance [that]

stood in his way and prevented timely filing.” Menominee Indian Tribe of Wis., 577 U.S. at 255.

No law or regulation required Sides to have his complaint notarized. Federal Rule of Civil

Procedure 11(a) provides that, “[u]nless a rule or statute specifically states otherwise, a pleading

need not be verified or accompanied by an affidavit.” Fed. R. Civ. P. 11(a). It is true that the

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Northern District’s Local Rule 7.1 (in the form then in effect 2 ) required Sides to include an

affidavit with his motion for a preliminary injunction. But nothing stopped him from filing the

motion separately from the complaint, and nothing in the local rules required notarization of the

complaint or that the complaint be accompanied by an affidavit. 3 N.D.N.Y. L.R. 7.1. Hence,

Sides’s lack of access to a notary could not in itself have “prevented timely filing,” especially

given the lag of over two years between when he received his medical records and when he

eventually filed his complaint. Menominee Indian Tribe of Wis., 577 U.S. at 255; cf. Diaz v. Kelly,

515 F.3d 149, 154–56 (2d Cir. 2008) (holding extraordinary circumstances existed when state

prisoner received delayed notice that a state appellate court had denied his application for leave to

appeal, preventing him from timely filing of habeas petition). Equitable tolling may not “be

premised on [a plaintiff’s] lack of education, pro se status, or ignorance of the right to bring a

2
Before January 1, 2021, Local Rule 7.1(a) provided as relevant here that “[e]xcept as otherwise provided
in this paragraph, all motions and opposition to motions require a memorandum of law, supporting affidavit,
and proof of service on all the parties.”
3
Sides also states that he “misunderstood” the notary requirements, in part, because he relied on “a pro se
handbook.” Appellant’s Br. at 16, 23. Assuming that Sides consulted the Northern District of New
York’s Pro Se Handbook, which is referenced in defendants’ brief, we note that this Pro Se Handbook
states: “Federal Rule of Civil Procedure 11 requires that every plaintiff must sign and date his or her
complaint. If possible, the complaint should be signed and dated in the presence of a notary public. A
complaint that is not signed will be dismissed by the Court unless the plaintiff promptly corrects the
omission by submitting a signed copy of the complaint.” Pro Se Handbook: The Manual for the Litigant
filing a Lawsuit without Counsel, 17 (last updated Jan. 8, 2021),
https://www.nynd.uscourts.gov/sites/nynd/files/ProSe_Handbook.pdf (last visited Sept. 9, 2021) (emphasis
added) (publicly available on the Northern District of New York’s website). Thus, the Pro Se Handbook
is clear that Sides could have filed the complaint even if he did not sign it in the presence of a notary. In
any event, Sides himself acknowledges that he sought and obtained access to a notary—even if notarization
was not necessary—but waited until the final days of the statutory window to do so (Sides requested that
the prison provide a notary to assist him in finalizing the Complaint on September 21, 2015, and the accrual
date set by the court was “no later than” September 28, 2015). See Appellant’s Br. at 16, 24, 30. Again,
because Sides did not exercise “reasonable diligence throughout the period he sought to toll,” he is not
entitled to equitable tolling. Walker, 430 F.3d at 564 (emphasis added).

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claim.” Watson v. United States, 865 F.3d 123, 133 (2d Cir. 2017). The district court thus

reasonably found that Sides failed to demonstrate an extraordinary circumstance sufficient to

warrant equitable tolling.

In summary, Sides has failed to show that the district court abused its discretion when it

concluded that he was not entitled to equitable tolling and, on that basis, granted summary

judgment to defendants.

We have considered Sides’s remaining arguments and find in them no basis for reversal.

Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court

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