Harrison v. Harlem Hospital , 364 F. App'x 686 ( 2010 )

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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