Skip navigation
× You have 2 more free articles available this month. Subscribe today.

Continuing Violation Doctrine Applies to Deliberate Indifference in New York

The Second Circuit Court of Appeals has held that the continuing violation doctrine applies to a New York prisoner’s deliberate indifference claim under the Eighth Amendment.

Jose J. Shomo was confined by the New York City Department of Corrections (NYCDOC) from September 20, 1999 until January 4, 2001. The day Shomo entered custody, he “was diagnosed with right arm paralysis and limited use of his left arm.” His treating physicians “ordered that he receive assistance with activities of daily living (ADLs), be transferred to specialized infirmary housing and receive various treatments.”

However, NYCDOC staff repeatedly ignored those treatment recommendations.
Shomo filed suit in federal court alleging deliberate indifference to his serious medical needs. He also alleged violations of the Americans with Disabilities and Rehabilitation Acts, municipal liability, assault and destruction of property.

The defendants moved to dismiss for failure to file the suit within the three-year statute of limitations under New York law. “While Shomo did not explicitly allege any acts of deliberate indifference within the three-year statute of limitations ..., the district court held that the continuing violation doctrine applied to Shomo’s Eighth Amendment claims.”

The district court dismissed the complaint with leave to replead claims against doctors Joy Myers, Rameen Seegobin and Shahid Nawaz, based on the continuing violation doctrine. The court dismissed Shomo’s claims against all other defendants with prejudice for failure to state a claim. It also held that “Shomo clearly lacks a cause of action under either” the ADA or the Rehabilitation Act.

Shomo filed an amended complaint, but the district court found that the claims against Drs. Nawaz and Seegobin were time-barred, and the claims against Dr. Myers “should be dismissed because ‘no facts in the record’ showed deliberate indifference to Shomo’s serious medical needs.” Shomo appealed.

The Second Circuit noted that it had “not before explicitly held that the continuing violation doctrine can delay accrual of an Eighth Amendment claim alleging a policy of deliberate indifference to serious medical needs.” The appellate court then agreed with the Seventh Circuit “that the continuing violation 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.” However, the fact that the doctrine “can apply ... does not mean it must.”

Rather, the plaintiff must allege an ongoing policy of deliberate indifference and some non-time-barred acts taken in furtherance of that policy, the Court of Appeals held. “This test screens 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.” The appellate court found that the district court properly applied this test to Shomo’s claims and correctly granted him leave to amend his complaint.

The Second Circuit reversed the lower court’s dismissal with prejudice of Shomo’s claims against supervisory defendants, concluding that he should have been granted leave to replead because “it is possible that Shomo could remedy the inadequacies identified by the district court.” The Court of Appeals also concluded that Shomo should be allowed to replead his municipal liability claim because he “could support application of the continuing violation doctrine with allegations that policy-making officials were aware that medical recommendations were deliberately ignored.”

The appellate court further found that the district court had erred in dismissing Shomo’s ADA and Rehabilitation Act claims, as he “set forth facts that suggest he could have viable claims under the ADA and Rehabilitation Act.” The district court was directed to consider the application of the continuing violation doctrine on remand.

The Chief Judge for the Second Circuit wrote a separate concurring opinion “to emphasize that Shomo’s claims would be deemed frivolous and suitable for dismissal under any standard but the one we apply to pro se litigants.” See: Shomo v. City of New York, 579 F.3d 176 (2d Cir. 2009).

As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.

Subscribe today

Already a subscriber? Login

Related legal case

Shomo v. City of New York