18-1273
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
“SUMMARY 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 22nd day of October, two thousand nineteen.

PRESENT:
                   JOHN M. WALKER, JR.,
                   SUSAN L. CARNEY,
                               Circuit Judges,
                   JOHN G. KOELTL,
                               District Judge.*

_________________________________________

DARRICK LEE SIDES,

                   Plaintiff-Appellant,

                           v.                                                       No. 18-1273

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,



 *Judge John G. Koeltl, of the United States District Court for the Southern District of New York, sitting by
designation.
               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 APPELLANT:                                      VALDI LICUL (Yannick A. Grant, on the
                                                    brief), Vladeck, Raskin & Clark, P.C., New
                                                    York, NY.

FOR APPELLEES:                                      PATRICK A. WOODS, Assistant Solicitor
                                                    General (Barbara D. Underwood, Solicitor
                                                    General; Victor Paladino, 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.)

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on March 29, 2018, is
VACATED and REMANDED for further proceedings consistent with this Order.

       Plaintiff-Appellant Darrick Lee Sides, an inmate at Coxsackie Correctional Facility
(“Coxsackie”), appeals from the District Court’s grant of summary judgment in Defendants’
favor on his claims, brought under 42 U.S.C. § 1983, alleging deliberate indifference to his
serious medical needs in violation of his Eighth Amendment rights. Sides contends that, in
August and September of 2012, he was denied adequate medical care with respect to his
anemia and hemorrhoid condition. It is undisputed that he filed his complaint no earlier than
October 1, 2015, and that claims brought under Section 1983 and filed in New York are
subject to a three-year statute of limitations. Milan v. Wertheimer, 808 F.3d 961, 963 (2d Cir.
2015). We assume the parties’ familiarity with the underlying facts, procedural history, and


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arguments on appeal, to which we refer only as necessary to explain our decision to vacate
the judgment of the District Court and remand for further proceedings consistent with this
order.

         We review de novo an order granting summary judgment under Rule 56, construing all
record evidence in the light most favorable to the non-moving party. Willey v. Kirkpatrick, 801
F.3d 51, 62 (2d Cir. 2015). We will affirm an order granting summary judgment only if “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).

         Section 1983 claims brought in New York ordinarily accrue when the “plaintiff
knows or has reason to know of the injury” on which his claim is based. Milan, 808 F.3d at
963. The continuing violation doctrine, however, creates an “exception to the normal knew-
or-should-have-known accrual date.” Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.
2009). That doctrine “can apply when a prisoner challenges a series of acts that together
comprise an Eighth Amendment claim of deliberate indifference to serious medical needs,”
but it may be invoked only on a showing “both [of] the existence of an ongoing policy of
deliberate indifference to his or her serious medical needs and some non-time-barred acts
taken in the furtherance of that policy.” Id. at 182 (alterations omitted).

         On appeal, Sides does not dispute that he was aware of his injury during August
2012, when he filed a grievance concerning his medical condition and purportedly
substandard care. He further alleges actions taken in violation of his rights occurred in
September 2012, when, according to his deposition testimony, he believed that his treatment
was “unreasonabl[y] delay[ed].” App’x 139-140. The “last […] act” of deliberate indifference,
Shomo, 579 F.3d at 181, occurred no later than September 28, 2012, when Sides was sent to
Albany Medical Center for a colonoscopy and hemorrhoidectomy. At that point, he was no
longer in Defendants’ care, and he does not allege otherwise. The continuing violation
doctrine does not extend the accrual date of the plaintiff’s claim beyond that date.
Accordingly, the three-year limitations period began to run no later than September 28,
2012.



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        As to when Sides filed his complaint: Under the prison mailbox rule, a pro se
prisoner’s complaint is deemed filed upon its delivery to prison authorities for transmittal to
the district court. See Dory v. Ryan, 999 F.2d 679, 682 (2d Cir. 1993). Sides testified that he
forwarded his complaint to authorities for mailing in “early October” 2015. App’x 135. Since
this was more than three years after the limitations period began to run it was untimely,
unless equitable tolling applies. See Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005).

        Sides asserts that he is entitled to equitable tolling to account for the eight days
between September 21, 2015, when he requested the prison provide a notary to assist him in
finalizing his complaint, and September 29, 2015, when he received the requested assistance.
Equitable tolling applies “only in rare and exceptional circumstances, where . . .
extraordinary circumstances prevented a party from timely performing a required act, and . . .
the party acted with reasonable diligence throughout the period he sought to toll.” Walker,
430 F.3d at 564 (brackets, alterations, and internal quotation marks omitted). The District
Court considered whether Sides’s allegations of delayed access to his medical records
justified tolling, pressed by him in that court, and answered that question in the negative.
Sides v. Paolano, No. 915-CV-1203(MAD)(CFH), 2018 WL 1578161, at *4 (N.D.N.Y. Mar.
29, 2018). Sides does not appeal that ruling. The District Court has not yet ruled, however,
on the argument that Sides emphasizes on appeal: whether Sides’s inability to access notary
services during the eight days between September 21 and 29 entitles him to equitable tolling.1
Appellant’s Reply at 8-10. He alleges that a pro se handbook and a prisoner manual
counseled (perhaps erroneously) that complaints be notarized; and it is true that complaints



1The District Court briefly considered this argument in its opinion granting Sides’s in forma pauperis
application. There, the court noted that:

                 On initial review, the court is required to screen the complaint and dismiss
                 frivolous claims. Plaintiff claims that he attempted to obtain a notary on
                 September 21, 2015 but that the services were delayed by the facility until
                 September 29, 2015. At this early stage, plaintiff’s claims do not appear to be
                 time barred.

App’x 49. In its order granting appellees’ motion for summary judgment, however, the court did not address
whether Sides’s inability to access notary services entitled him to equitable tolling.


                                                        4
seeking preliminary injunctive relief (as Sides did) ordinarily require notarizations. See, e.g.,
Northern District of New York Local Rule 7.1(a) (explaining that “all motions and
opposition to motions require a memorandum of law, supporting affidavit, and proof of service
on all the parties.” (emphasis added)). Because we owe special solicitude to a pro se claimant,
and Sides appears to have filed his complaint within days of the September 28 deadline, we
vacate the judgment of dismissal and remand the cause to allow the District Court to
determine in the first instance whether equitable tolling should apply based on the
circumstances of this case, including the notary’s temporary unavailability.

       Appellees raised other defenses with the District Court. These included qualified
immunity and Sides’s failure in conflict with the Prison Litigation Reform Act,
42 U.S.C. § 1997e(a), to exhaust administrative remedies. We invite the District Court to
consider these and other defenses on remand, as it deems suitable.

                                               * * *

       Accordingly, we VACATE the judgment of the District Court and REMAND the
cause for further proceedings consistent herewith.

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




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