    08-1510-cv
    Harrison v. Harlem Hospital



                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                  SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PRO CEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST 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 Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 5 th day of February, two thousand ten.

    PRESENT:
             RALPH K. WINTER,
             JOHN M. WALKER, Jr.,
             ROSEMARY S. POOLER,
                      Circuit Judges.
    _______________________________________

    WILLIAM HENRY HARRISON, et al.,

                     Plaintiffs-Appellants,

                     -v.-                                    08-1510-cv

    HARLEM HOSPITAL, et al.,

             Defendants-Appellees.
    _______________________________________

    FOR APPELLANTS:                 William Henry Harrison, pro se,
                                    Richmond, Virginia.

                                    Betty Mason, pro se, Claymont,
                                    Delaware.
                       James Andrew Harrison, pro se,
                       Coatesville, Pennsylvania.

                       Celester Reginald Harrison, pro se,
                       New York, New York.

                       Earnest Verdell Harrison, pro se,
                       Brooklyn, New York.

FOR APPELLEE:          Michael A. Cardozo, Corporation
                       Counsel, Pamela Seider Dolgow,
                       Assistant Corporation Counsel, New
                       York, New York.


     Appeal from a judgment of the United States District

Court for the Southern District of New York (Pauley, J.).

     UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be

AFFIRMED.

     Plaintiffs-Appellants, pro se, appeal from the district

court’s judgment dismissing their complaint pursuant to the

defendants’ motion for judgment on the pleadings under Rule

12(c) of the Federal Rules of Civil Procedure.   We assume

the parties’ familiarity with the underlying facts, the

procedural history of the case, and the issues on appeal.

I.   Appellate Jurisdiction

     As a preliminary matter, we conclude that, contrary to

the appellees’ contention, the appeal was timely filed.


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The plaintiffs’ post-judgment motion pursuant to Rule 59(e)

of the Federal Rules of Civil Procedure was accompanied by

an affidavit from William Henry Harrison indicating that he

gave it to prison officials to be mailed on October 12,

2007.   Under the versions of the Federal Rules of Civil

Procedure and Federal Rules of Appellate Procedure then in

effect, and with the benefit of the prison-mailbox rule, the

Rule 59(e) motion was accordingly timely filed.    See Fed. R.

Civ. P. 59(e); Fed. R. App. P. 4(a)(4)(A)(iv); Fed. R. App.

P. 26(a); Houston v. Lack, 487 U.S. 266, 275-76 (1988)

(discussing prison-mailbox rule).

    It is irrelevant that, among the plaintiffs, only

Harrison was a prisoner, as “the time to file an appeal runs

for all parties from the entry of the order disposing of the

last such remaining motion ... to alter or amend the

judgment under Rule 59.”   Fed. R. App. P. 4(a)(4)(A)(iv)

(emphasis added).   At a minimum, Harrison filed a timely

Rule 59(e) motion to challenge the district court’s decision

to the extent it dismissed his interest in the suit, and

this motion tolled the time for filing a notice of appeal

for his co-plaintiff siblings as well.   Accordingly, the

notice of appeal is timely and we have appellate


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jurisdiction.

II.   Merits

      We review de novo a district court order granting

judgment on the pleadings pursuant to Rule 12(c).        See

Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999).         We

apply “the same standard as that applicable to a motion

under Rule 12(b)(6), accepting the allegations contained in

the complaint as true and drawing all reasonable inferences

in favor of the nonmoving party.”   Id.    To state a claim, a

complaint must plead “enough facts to state a claim to

relief that is plausible on its face.”     Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 570 (2007).     Although all

allegations contained in the complaint are assumed to be

true, this tenet is “inapplicable to legal conclusions.”

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).     A claim

will have “facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.”      Id.

      The appellants have failed to identify any specific

fact they have learned since the limitations period expired

which, if known by them sooner, would have led them to file


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suit sooner.   Accordingly, the plaintiffs have failed to

show that the defendants fraudulently concealed a wrong, and

they are not entitled to equitable tolling on this basis.

See Pinaud v. County of Suffolk, 52 F.3d 1139, 1157-58 (2d

Cir. 1995)(“[A] plaintiff must submit non-conclusory

evidence of a conspiracy or other fraudulent wrong which

precluded his possible discovery of the harms that he

suffered.”).   In addition, as the district court correctly

noted, under New York law, the filing of a petition for

letters of administration does not toll the limitations

period for bringing an action on behalf of a decedent’s

estate.   See Hammie v. City of New York, 143 A.D.2d 805, 806

(2d Dep’t 1988).   Accordingly, as the district court

correctly concluded, the claims brought on behalf of the

estate under 42 U.S.C. §§ 1981, 1983, and 1985 are barred as

untimely, as suit was not brought within the three-year

period applicable to such claims in New York.   See Singleton

v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980); see

also Morse v. Univ. of Vermont, 973 F.2d 122, 125 (2d Cir.

1992) (where federal cause of action provides no statute of

limitations, court must apply the “most appropriate or

analogous state statute of limitations”)(internal quotation


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marks omitted); Gardner v. Wansart, No. 05 Civ. 3351, 2006

WL 2742043, at *3 (S.D.N.Y. Sept. 26, 2006)(noting that

courts in this circuit apply New York’s three-year statute

of limitations for personal injury claims to ADA actions).

Section 1986, which creates a cause of action for failure to

prevent a wrong under § 1985, necessarily requires a

cognizable § 1985 claim, and hence the plaintiffs’ § 1986

claim similarly fails.   See Gagliardi v. Village of Pawling,

18 F.3d 188, 194 (2d Cir. 1994).

    The plaintiffs’ claims brought in their individual

capacities are without merit, and we affirm their dismissal

for substantially the reasons stated in the district court’s

September 2007 order.

    We have considered all of the appellants’ arguments on

appeal and find them to be without merit.   Accordingly, the

judgment of the district court is hereby AFFIRMED.

                         FOR THE COURT:

                         Catherine O’Hagan Wolfe, Clerk




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