Perkins v. Rome Memorial Hospital, 6:20-cv-00196

Background

Perkins (pro se) sued Rome Memorial Hospital and Dr. R. Mitchell Rubinovich under 42 U.S.C. § 1983 and New York tort law for injuries from an ankle operation performed on November 16, 2009.
Plaintiff claims the operative report was false, that more extensive bone removal and hardware placement occurred (screws through the talus to the fibula, plate and pins), and that defendants concealed the true diagnosis/treatment for ~11 years.
Complaint includes the operative report, nurse’s notes, x-rays, photos, and a 2017 medical report documenting ongoing ankle pain and functional limitations.
Defendants moved for judgment on the pleadings (or alternatively summary judgment). The court treated the motions as Rule 12(c) and limited review to the pleadings.
Court addressed three principal defenses: inadequate service, statute of limitations, and failure to plead § 1983 state action; found service excused but dismissed the complaint without prejudice as untimely and for failure to plead state action.
Plaintiff was granted leave to amend once, with 60 days to file and serve an amended complaint; failure to serve thereafter would result in dismissal with prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Service of process timeliness	Perkins says he tried to serve by certified mail on Mar 24, 2020 but COVID-19 prevented acceptance	Defendants say no proper waiver or acknowledgment of service was filed; service not effected per Rule 4	Court excused untimely service for good cause (pro se, COVID, defendants not prejudiced) and declined dismissal on that ground
Statute of limitations (§ 1983 and state claims)	Perkins alleges ongoing concealment; contends continuing wrong extends limitations	Defendants: claims accrued in 2009; federal 3-year rule for § 1983 and NY shorter periods for torts bar suit	Claims are time‑barred; Perkins failed to plead when he discovered the alleged wrongdoing or facts supporting equitable tolling/continuing violation
§ 1983 – acting under color of state law / conspiracy/joint action	Perkins suggests Great Meadow Correctional Facility encouraged concealment and that defendants colluded with the state	Defendants: private hospital and physician provided medical care; no facts show state action or concerted agreement with a state actor	Dismissed: complaint pleads only conclusory allegations; no specific facts showing joint activity, agreement, or state action to sustain § 1983 claim
State-law malpractice/fraud/IIED claims	Perkins alleges fraud, negligence, IIED from concealment and surgery	Defendants: state-law claims are governed by NY statutes of limitations and are untimely	State claims dismissed as time‑barred for same reasons; court treats claims as essentially medical malpractice unsuited to federal § 1983 pleading without state-action facts

Key Cases Cited

SM Kids, LLC v. Google LLC, 963 F.3d 206 (2d Cir. 2020) (Rule 12(d) conversion/consideration of materials outside the pleadings)
L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419 (2d Cir. 2011) (materials properly considered on Rule 12(c))
Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility pleading standard)
Pearl v. City of Long Beach, 296 F.3d 76 (2d Cir. 2002) (§ 1983 statute of limitations in New York)
Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74 (2d Cir. 2003) (equitable tolling for misleading defendant conduct)
Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002) (private party liability under § 1983 requires joint action or conspiracy with state actor)
McGugan v. Aldana-Bernier, 752 F.3d 224 (2d Cir. 2014) (dismissing § 1983 claim against private hospital absent state action)
Shomo v. City of New York, 579 F.3d 176 (2d Cir. 2009) (continuing violation doctrine requirements)
West v. Atkins, 487 U.S. 42 (1988) (definition of action under color of state law)
Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010) (pleading standard reiteration)