REPORT AND RECOMMENDATION

STEWART D. AARON, Magistrate Judge.

INTRODUCTION

Pro se Plaintiff Taye Lamonte Elleby ("Plaintiff" or "Elleby") brings claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights that he alleges occurred while he was detained at Rikers Island ("Rikers") and the Manhattan Detention Center ("MDC") in 2013 and 2014. (Second Am. Compl. ("SAC"), ECF No. 45.) For the reasons set forth below, I recommend that that the SAC be dismissed since all the claims asserted in the SAC are barred by the statute of limitations.

BACKGROUND

On November 6, 2017, a § 1983 action was filed by Elleby in the United States District Court for the Northern District of New York alleging, in substance, that the medical staffs at the Shawangunk Correctional Facility ("Shawangunk") and Elmira Correctional Facility ("Elmira") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment because they failed to provide him medication for herpes. (Compl., ECF No.1.) The Complaint only alleged claims against Shawangunk and Elmira. (Id.)

On December 8, 2017, Elleby requested leave to file an amended complaint. (Mot., ECF No. 3.) In the proposed amended complaint, Elleby sought to name as defendants the medical staffs at Shawangunk and Elmira (as opposed to naming the facilities themselves), and also added claims against the medical staff at Rikers. (See Proposed Am. Compl., ECF No. 3-1.) Elleby alleges that he was sent to Rikers in or around May 2013 and that while there, he "put in numerous times to see a doctor" because he was suffering from outbreaks in his genital area, which were painful and made him "severely nautious [sic]" and dizzy. (Id. at 2.) Elleby alleges he eventually was seen by a doctor, defendant John Doe #1, who rejected Elleby's request to be tested for herpes and "instead told . . . [him] that the outbreaks [were] caused by the facility water and gave [him] hydrocortizone [sic] cream or something of the like to place in his genital area. . . ." (Id.)

On February 13, 2018, Northern District of New York Chief Judge Glenn Suddaby severed the claims regarding conduct that occurred at Rikers and transferred those claims to this Court. (See 2/13/18 Decision and Order, ECF No. 10, at 4-8.) In making the transfer, Judge Suddaby "assum[ed] . . . that [Elleby's Rikers-related] claims are not frivolous or barred by the statute of limitations." (Id. at 7.) Judge Suddaby also directed that the Clerk of Court docket Plaintiff's proposed amended complaint as the Amended Complaint in this case. (Id. at 22; see also Am. Compl., ECF No. 11.).)

Elleby's claims against John Doe defendants at Rikers Island were transferred to this Court on February 21, 2018. (ECF No. 12.) After obtaining information from the City regarding the identities of the John Doe defendants, Elleby's SAC was filed in this Court on December 20, 2018. (SAC, ECF No. 45.) In the SAC, Elleby alleges that he was denied adequate medical care by several health care professionals at Rikers and the MDC when they failed to test him for genital herpes at each of his medical appointments between May 11, 2013 and February 4, 2014. (SAC at 2-3.) Elleby further alleges that health care officials continued to ignore his condition "for two more entire years . . . while he was in [Coxsackie Correctional Facility.]"1 (Id. at 4.) The latest incident he alleges involving any of the defendants named in this case is the February 4, 2014 appointment with defendant Ira Gornish, who was a Physician's Assistant at MDC. (Id. at 2.) Elleby writes in the Memorandum of Law accompanying his SAC that he was transferred to Coxsackie in the middle of 2014.2 (Mem. L., ECF No. 40, at 3.)

On January 7, 2019, I ordered Plaintiff to show cause within 30 days why his case should not be dismissed as barred by the statute of limitations. (Order to Stow Cause ("OTSC"), ECF No. 46.) The OTSC explained that the statute of limitations for Plaintiff's claims was three years and that this case initially was filed in the Northern District of New York more than three years after Elleby left the custody of New York City correctional facilities where defendants worked (i.e., Rikers and MDC). (Id. at 3-4.) For the benefit of the pro se Plaintiff, the OTSC also contained a discussion of the case law regarding equitable tolling and the continuing violation doctrine. (Id. at 5-6.)

On January 22, 2019, Plaintiff's Declaration in response to the OTSC was filed. (Decl., ECF No. 47.) In his Declaration, Plaintiff argues that his claims did not accrue until 2016, after "testing was done and the results were presented"— i.e., when he was diagnosed with herpes. (Id. at 3.) The Declaration did not address equitable tolling or the continuing violation doctrine.

STANDARD OF REVIEW

As discussed in the OTSC that I previously issued, the Court must "review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner3 seeks redress from a governmental entity or officer or employee of a governmental entity[,]" and must dismiss any such complaint, or portion thereof, that "is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." 28 U.S.C. § 1915A(b); see also Abbas v. Dixon, 480 F.3d 636, 639 (2d Cir. 2007).

The failure to file an action within the limitations period is an affirmative defense and a plaintiff is generally not required to plead that the case is timely filed. See Abbas, 480 F.3d at 640. However, the Second Circuit has held that dismissal is appropriate where the existence of an affirmative defense is plain from the face of the pleading. See Walters v. Indus. and Commercial Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2011). Thus, "when screening the sufficiency of a complaint brought by a plaintiff proceeding . . . as a prisoner against a government entity pursuant to 28 U.S.C. § 1915A, a court may dismiss sua sponte where it is clear from the face of the complaint that the action is untimely." De Santis v. City of New York, No. 10-CV-03508 (JPO) (GWG), 2013 WL 3388455, at *4 (S.D.N.Y. July 8, 2013), report and recommendation adopted, 2014 WL 228659 (S.D.N.Y. Jan. 22, 2014) (citing Pratts v. Coombe, 59 F. App'x 392, 393 (2d Cir. 2003) ("Dismissal is . . . appropriate [during a screening pursuant to 28 U.S.C. § 1915A] where the existence of an affirmative defense, such as statute of limitations, is plain from the plaintiff's pleading."), and Pino v. Ryan, 49 F.3d 51, 53-54 (2d Cir. 1995) (affirming dismissal pursuant to 28 U.S.C. § 1915 as complaint was "facially time-barred")).

While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the "strongest [claims] that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006) (internal quotation marks and citations omitted). Moreover, as required (see Abbas, 480 F.3d at 640), the Court has provided to Plaintiff notice and the opportunity to be heard.

DISCUSSION

I. Plaintiff's Claims Are Not Timely And Should Be Dismissed

"Section 1983 does not provide a specific statute of limitations. Thus, courts apply the statute of limitations for personal injury actions under state law." Galberth v. Washington, No. 14-CV-00691 (KPF), 2016 WL 1255738, at *9 (S.D.N.Y. Mar. 29, 2016), aff'd, 743 F. App'x 479 (2d Cir. 2018) (quoting Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013)) (additional citations omitted). Under New York law, personal injury actions are subject to a three-year statute of limitations. See N.Y. C.P.L.R. § 214(5).

Federal law determines the date on which a federal claim accrues. See Bell, 2014 WL 1316773, at *5. Claims under § 1983 accrue when: "(i) the plaintiff knows or has reason to know of the injuries caused by an individual defendant, or (ii) the plaintiff knows or has reason to know that a municipal defendant has an unconstitutional policy or custom." Galberth, 2016 WL 1255738, at *9 (citing Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995), and Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980), cert. denied, 450 U.S. 920 (1981)).

Based upon the record before me, and considering Plaintiff's response to the OTSC, Plaintiff's claims against the defendants named in this action accrued on or about February 4, 2014, the last date that he alleges he was denied the appropriate medical test while in custody of the City of New York. See Bell, 2014 WL 1316773, at *5 (plaintiff's § 1983 claim against prison doctors accrued on the date of the final alleged denial of medication). This action was not commenced until October 31, 2017,4 more than three years after the claims accrued, and thus the SAC should be dismissed.

Plaintiff argues that his claim did not accrue until 2016 when he alleges he was diagnosed with herpes. (Decl. at 2-4.) He is mistaken. Claims under § 1983 accrue when: "the plaintiff knows or has reason to know of the injuries caused by an individual defendant. . . ." Galberth, 2016 WL 1255738, at *9 (citation omitted) (emphasis supplied); see also Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir. 2009) ("A Section 1983 claim ordinarily `accrues when the plaintiff knows or has reason to know of the harm." (citation omitted)). Plaintiff alleges in the SAC that he "was subjected to cruel and unusual punishment by the negligent actions of the doctors failing to test [him] for the condition he complained about and [filed] riev[ances] over." (SAC at 4.) Plaintiff knew of his alleged harm due to the lack of testing since he filed grievances about the lack of testing. In arguing that his claims did not accrue until he allegedly learned he had herpes, the Plaintiff erroneously is conflating his diagnosis with his injury. See Gonzalez v. Wright, 665 F.Supp.2d 334, 348 (S.D.N.Y. 2009) ("Delay in discovering the cause of the injury does not prevent the claim from accruing.").

II. Plaintiff Is Not Entitled To Equitable Tolling And The Continuing Violation Doctrine Does Not Apply

In the OTSC, I set forth for the benefit of the pro se Plaintiff a discussion of case law regarding equitable tolling and the continuing violation doctrine. (OTSC at 5-6.) It was explained that the doctrine of equitable tolling permits a court, "under compelling circumstances, [to] make narrow exceptions to the statute of limitations in order `to prevent inequity.'" In re U.S. Lines, Inc., 318 F.3d 432, 436 (2d Cir. 2003) (citation omitted).5 The OTSC also explained how the "continuing violation doctrine allows a plaintiff to challenge acts of misconduct occurring outside the statute of limitations period if at least one act of the ongoing misconduct occurred within the limitations period." Lopez v. Annucci, 690 F. App'x 56, 58-59 (2d Cir. 2017) (citing Shomo v. City of N.Y., 579 F.3d 176, 181-82 (2d Cir. 2009)). "In the context of an Eighth Amendment claim of deliberate indifference to medical needs, a plaintiff asserting a continuing violation for statute of limitations purposes . . . 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 furtherance of that policy." Id. (internal quotations and citations omitted).

As previously mentioned, Plaintiff in his Response to the OTSC did not argue in favor of equitable tolling of the statute of limitations, or in favor of application of the continuing violation doctrine. Plaintiff does not allege any fraud or other misconduct by defendants to justify equitable tolling. Moreover, there can be no continuing violation since Plaintiff transferred to state custody in April 2014 from the City facilities where the alleged constitutional violations occurred. See Thompson v. Dep't of Corr. NYC, No. 09-CV-01038 (NAM) (GHL), 2011 WL 4369125, at *6 (N.D.N.Y. Sept. 19, 2011) ("All action (or inaction) by the City defendants regarding plaintiff's medical condition ceased upon plaintiff's transfer to State custody."); see also Crenshaw v. Syed, No. 10-CV-00244 (GLS) (GHL), 2011 WL 2975687, *4 (N.D.N.Y. Mar. 8, 2011), report and recommendation adopted, 2011 WL 2975775 (N.D.N.Y. Jul. 21, 2011) ("[I]t is not enough to simply allege that someone committed a wrongful act within the statute of limitations period. Rather, a plaintiff hoping to invoke the continuing violation doctrine must allege that the defendant committed a wrongful act within the statute of limitations period.") (emphasis in original).

CONCLUSION

For the foregoing reasons, I recommend that the District Court dismiss the Second Amended Complaint.

SO ORDERED.

NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Torres.

THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).