Continuing violations rule applies to deliberate indifference claims

All civil rights claims carry a statute of limitations, some of them long, some of them short. That limit can be extended under the "continuing violations" rule, which allows the plaintiff to reach beyond the statute of limitations if the defendant was pursuing an ongoing policy and something illegal happened within the appropriate time frame. The Second Circuit now holds that the continuing violations rule applies to medical indifference claims filed by inmates against public officers.

The case is Shomo v. City of New York, decided on August 13. In 2002, the Supreme Court recognized that the continuing violations rule is applicable to sexual harassment claims involving a hostile work environment. That case isd AMTRAK v. Morgan, 506 U.S. 101 (2002). The Supreme Court did this because hostile work environment claims necessary involve allegations that extend beyond the 300-day time limit to bring an action. The Second Circuit saw this coming, and in 1994 ruled that, in Section 1983 claims against the government, "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994).

Does the continuing violations rule apply in cases alleging deliberate indifference to serious medical needs? Inmates often file these claims under the Eighth Amendment to the Constitution, so this is an important question. In Shomo, the Second Circuit (Pooler and Jacobs) rules that continuing violations do apply in these cases, following the lead of the Seventh Circuit, which ruled similarly in Heard v. Sheahan, 253 F.3d 317 (7th Cir. 2001). As the Second Circuit frames the inquiry, "To assert a continuing violation for statute of limitations purposes, the plaintiff must 'allege both 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.' 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."

Shomo alleges a pattern where, despite prior treatment recommendations, prison medical personnel and security staff refused to assist him with "activities of daily living" for his right arm paralysis and limited use of his left arm; refused to transfer him to specialized infirmary housing or to provide him recommended treatments. The Court of Appeals is giving Shomo another chance to amend his complaint to comply with the new continuing violations test outlined in this opinion.

In an interesting concurrence, Chief Judge Jacobs agrees that the continuing violations rule should apply to deliberate indifference claims filed by inmates. He also says the court's "indulgent" rules allow pro se litigants to replead their claims and that "Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the one we apply to pro se litigants." Further noting that Shomo wants treatment for "activities of daily living," Judge Jacobs observes that "Shomo was convicted by a jury of murder in the second degree -- through use of a firearm--and criminal possession of a weapon. Shomo’s inability to use his hands was floated to the jury as a defense, and rejected. While I am not suggesting that murder by firearm is an 'activity of daily living,' I would draw the inference that a person able to shoot someone to death has sufficient use of his hands to get by."