CHARLES J. SIRAGUSA, District Judge.
Plaintiff, who is 23 years old, describes himself as "a female-to-male transgender man" who was "labeled female at birth and given a female birth name." Compl. ¶¶ 4, 20. He alleges that in early November 2014 he called his primary care provider complaining of pain and inflammation of his reproductive organs. Id. ¶ 21. He further alleges that he sought treatment at Defendant's hospital on November 9, 2014, through November 11, 2014, and suffered discrimination in violation of the New York Human Rights Law ("NYHRL") and the Patient Protection and Affordable Care Act, codified at 42 U.S.C. § 18116 (2010) ("ACA").
Defendant now moves to dismiss the complaint as barred by the statute of limitations for claims pursuant to the ACA and NYHRL, both of which are subject to a three-year limitations period. By Defendant's calculations, since the alleged acts forming the basis for Plaintiff's complaint occurred on November 9 through 11, 2014, Plaintiff should have filed his complaint by November 11, 2017 (a Saturday). Federal Rule of Civil Procedure 6 gave Plaintiff until the next business day, Monday, November 13, 2017, to timely file. However, he failed to do so until Tuesday, November 14, 2017.
Plaintiff, in his submission opposing Defendant's motion to dismiss, states that he had further complications because of the care received November 9-11, and that the hospital readmitted
Proposed Amended Complaint ¶¶ 49-54 (Exhibit A), Mar. 20, 2018, ECF No. 8-2.
The U.S. Supreme Court, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), clarified the standard courts are to apply to a 12(b)(6) motion:
Id. at 1964-65 (citations and internal quotations omitted). See also, ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007) ("To survive dismissal, the plaintiff must provide the grounds upon which his claim rests through factual allegations sufficient >to raise a right to relief above the speculative level.'") (quoting Bell Atl. Corp. v. Twombly) (footnote omitted); Iqbal v. Hasty, 490 F.3d 143 (2d Cir. 2007) (Indicating that Bell Atl. Corp. v. Twombly adopted "a flexible >plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible[,]" as opposed to merely conceivable.)
When applying this standard, a district court must accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party. Burnette v. Carothers, 192 F.3d 52, 56 (1999), cert. denied, 531 U.S. 1052 (2000). Further, the Court must read the allegations in a pro se complaint broadly and construe it to "raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (internal quotation marks omitted).
On the other hand, "[c]onclusory allegations of the legal status of the defendants' acts need not be accepted as true for the purposes of ruling on a motion to dismiss." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995)(citing In re American Express Co. Shareholder Litig., 39 F.3d 395, 400-01 n. 3 (2d Cir.1994)). As the Supreme Court clarified in Ashcroft v. Iqbal, 556 U.S. 662 (2009):
Iqbal, 556 U.S. at 678B79 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)).
A "court should freely give leave when justice so requires." Fed. R. Civ. P. 15. However, "A court may deny a motion to amend if the amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
In its Decision and Order granting Plaintiff permission to proceed in forma pauperis and screening the original complaint pursuant to 28 U.S.C. § 1915A, the Court found that the ACA prohibits exclusion of an individual from "the benefits of, or [to] be subjected to discrimination under, any health program or activity" if it is receiving Federal financial assistance. The statute specifically refers to discrimination pursuant to title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and section 504 of the Rehabilitation Act of 1973. After reviewing these Acts, the Court determined that the only applicable one would be title IX of the Educations Amendments of 1972. See Prescott v. Rady Children's Hospital—San Diego. No. 16-cv-02408-BTM-JMA, 2017 WL 4310756 (S.D. Calif. Sept. 27, 2017) (holding that by extension Title IX is the basis for transgender identity sex discrimination).
Setting aside for another day the question of whether this Circuit recognizes a cause of action under the ACA for transgender identity discrimination, the Court focuses on the issue Defendant raises—the statute of limitations. Title IX does not contain a limitations period, so the Second Circuit has borrowed the limitations period from the state for a closely analogous action, one for personal injury. In New York, the limitations period for a personal injury action is three years. N.Y. C.P.L.R. § 214(5) (Consol. 1996). Therefore, the limitations period for a Title IX action is also three years in New York. Curto v. Edmundson, 392 F.3d 502, 504 (2d Cir. 2004).
Turning to the NYHRL, N.Y. Exec. L. § 296(2) (Consl. 2018), Defendant points out that the New York legislature amended the regulations promulgated pursuant to § 292 to explicitly protect transgender individuals. N.Y. Comp. Codes R. & Regs., tit. 9, § 466.13(b)(2), (c)(1) (2016). Defendant argues that since the NYHRL did not incorporate transgender discrimination into the regulations until 2016, and the regulation did not specifically make it retroactive to 2014, Plaintiff has not stated a cause of action under the NYHRL. Further, Defendant contends that the limitations period for a NYHRL claim is three years. N.Y. C.P.L.R. § 214(2) (Consl. 1996); Odom v. Doar, 497 F. App'x 88, 89 (2d Cir. 2012) ("because Odom did not file his federal complaint until January 2011, his claims brought under the New York State Human Rights Law . . . which ha[s] a three-year statute of limitations, [is] also timebarred.").
Defendant opposes Plaintiff's motion to amend as futile. It contends that Plaintiff has conceded his original ACA and NYHRL claims are barred, and that Plaintiff's additional factual allegations pertain to a different hospital, and allege a medical malpractice claim, which is also barred. Further, Defendant argues that the Court has no jurisdiction over a medical malpractice claim. Def.'s Reply at 4.
Defendant raises the question of whether the "continuing violation doctrine" could act to save Plaintiff's discrimination claim. The continuing violation doctrine might arise if a plaintiff has endured a "continuous practice and policy of discrimination." In which case "the commencement of the statute of limitations period may be delayed until the last discriminatory act in furtherance of it." Fitzgerald v. Henderson, 251 F.3d 345, 359 (2d Cir. 2001) (citing Gomes v. Avco Corp., 964 F.2d 1330, 1333 (2d Cir. 1992) (quoting Miller v. International Telephone & Telegraph Corp., 755 F.2d 20, 25 (2d Cir.), cert. denied, 474 U.S. 851 (1985)). The doctrine, however, would not be applicable in a situation involving individual instances of discrimination isolated in time from one another.
Here, Plaintiff alleges discrimination by Defendant from November 9 through 11, then additional damages suffered causing admission to Strong Memorial Hospital November 29 through December 3, all in 2014. The second hospital admission to a non-party hospital does not show an ongoing policy of discrimination by Defendant. Thus, Plaintiff's additional allegations do not amount to a continuing violation.
Defendant is correct that Plaintiff has not plead a medical malpractice cause of action. Even if the Court were to construe his proposed amended complaint as raising one, however, the Court would be without jurisdiction to adjudicate it. "[F]ederal courts are courts of limited jurisdiction." Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 374 (1978). They "possess only that power authorized by Constitution and statute, which is not to be expanded upon by judicial decree." Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375, 377 (1994). "It is to be presumed that a cause lies outside [federal courts'] limited jurisdiction. . . ." Id. Nothing in Chapter 85 of Title 28 would confer jurisdiction on this Court to hear a medical malpractice claim based on the allegations in the proposed amended complaint.
Additionally, as Defendants have argued, the statute of limitations for a medical malpractice claim in New York is two years and six months from the date of accrual. N.Y. C.P.L.R. 214-a (Consl. 2018). Even if the Court were to assume the accrual date is the date of Plaintiff's discharge from Strong Memorial Hospital, December 3, 2014, the limitations period expired on June 13, 2017, which is 154 days before Plaintiff filed his original complaint.
For the reasons stated above, the Court denies Plaintiff's motion to amend, ECF No. 8, as futile, and grants Defendant's motion to dismiss, ECF No. 5. The Clerk will enter judgment for Defendant and close this case.
IT IS SO ORDERED.
