In an action claiming medical indifference in violation of the Eighth Amendment, district court judgment is affirmed in part and vacated in part where: 1) the continuing violation doctrine can apply to Eighth Amendment claims of medical indifference brought under 42 U.S.C. sec. 1983 when the plaintiff shows an ongoing policy of deliberate indifference to his or her serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period; 2) the court properly granted plaintiff leave to amend his complaint in order to state timely Eighth Amendment claims based on the continuing violation doctrine; 3) the court properly dismissed plaintiff's claims with prejudice as to certain defendants; 4) plaintiff is granted leave to replead his claims against named and unnamed supervisors and replead his municipal liability claim against the City; and 5) plaintiff's ADA and Rehabilitation Act claims are remanded as the court did not address whether the continuing violation doctrine applied to plaintiff's disability discrimination claims.
Appeal from the United States District Court for the Southern District of New York.
Argued: April 1, 2009
Decided August 13, 2009
Before JACOBS, Chief Judge, and POOLER, Circuit Judge.
Opinion by POOLER, Circuit Judge.
Concurring Opinion by DENNIS JACOBS, Chief Judge.
For Defendant: SUZANNE K. COLT, Assistant Corporation Counsel, New York, NY.