Continuing Violation Doctrine Extends Prisoners Time to Bring Claim Alleging Medical Indifference to His Paralyzed Hands That He Was Able to Use to Fire Murder Weapon By SEO Admin on August 20, 2009

Jose J. Shomo was convicted in New York State court, after a jury trial, of murder in the second degree and criminal possession of a weapon in the second degree, and sentenced as a persistent violent felony offender to concurrent terms of 25 years to life. He had used a firearm to commit the murder. He was in the custody of the New York City Department of Corrections (DOC) from September 20, 1999, to January 4, 2001. In 2003, Shomo filed a pro se Section 1983 lawsuit infederalcourt alleging that on the day that he entered DOC custody, he was diagnosed with right arm paralysis and limited use of his left arm, and that thereafter the defendants were deliberately indifferent to providing him with necessary medical care. His suitincluded claims forEighth Amendment medical indifference, violations of the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973, municipal liability, assault, and destruction of property. A deliberate indifference claim can lie where prison officials engage in a policy of deliberately ignoring the medical recommendations of a prisoner's treating physicians. This differs from a medical malpractice claim in that it does not allege that a doctor departed from the standards of good and accepted medical practice. Shomos complaint suggested a pattern where DOC medical personnel and security staff, despite prior treatment recommendations, refused to assist Shomo with activities of daily living (ADLs), to transfer him to specialized infirmary housing, or to provide recommended treatments. The policy cannot be construed as an outright denial of access to care because Shomo was frequently seen by doctors and brought to hospitals. In Shomo v. City of New York, --- F.3d ----, 2009 WL 2462213 C.A.2 (N.Y.), (August 13, 2009), the Second Circuit held, for the first time, that the continuing violation doctrine can delay accrual of an Eighth Amendment claim alleging a policy of deliberate indifference to serious medical needs. 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. The Second Circuit also held that Shomo set forth facts that suggest he could have viable claims under Title II of the ADA and under the Rehabilitation Act by alleging that he was disabled based on the physical limitations in the use of his arms, and that defendants denied him access to infirmary-style housing and other prison services on the basis of his disability. The standards for Rehabilitation Act claims is generally the same as for ADA claims, with the additional requirement that the defendants must receive federal funding. The case was remanded to the District Court in order to permit Shomo to amend his Eighth Amendment, ADA and Rehabilitation Act claims. Hon. Rosemary S. Pooler wrote the courts opinion. Hon. Dennis Jacobs, Chief Judge, wrote a concurring opinion to emphasize that Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the one applied to pro se litigants. Judge Jacobs noted that Shomo's inability to use his hands was floated to the jury as a defense, and rejected. Judge Jacobs stated the he would draw the inference that a person able to shoot someone to death has sufficient use of his hands to get by. He wrote that nothing in the Court's opinion precludes a searching examination of the evidence at summary judgment, before jurors are empaneled to devote their days to resolution of Shomo's claims, a suggestion if ever there was one. Only two judges decided the case because the third judgeoriginally assigned tothe circuit panel, Hon. Sonia Sotomayor, had a change in circumstances. Congratulations to her! The lawyers at Levine & Slavit have decades of experience handling personal injury claims including those involving medical malpractice. For 50 years spanning 3 generations, we have obtained results for satisfied clients. We have offices in Manhattan and Long Island, handling cases in New York City, the Bronx, Brooklyn, Queens and surrounding areas. To learn more, watch our videos.

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The law firm of Levine & Slavit, PLLC has served clients in Long Island and the Greater New York City-area since 1957. We are a team of personal injury and wrongful death lawyers who work tirelessly for victims' rights. Our team is licensed and affiliated with the:

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