Mallet v. NYS Dep’t of Corrections IN THE

22-2884
Mallet v. NYS Dep’t of Corrections
IN THE 1
United States Court of Appeals 2
For the Second Circuit 3
________ 4
A UGUST T ERM, 2023 5
6
A RGUED: SEPTEMBER 20, 2023 7
D ECIDED: J ANUARY 13, 2025 8
9
Docket No. 22-2884 10
11
A NTONIO MALLET, 12
Plaintiff-Appellant, 13
14
v. 15
16
NEW Y ORK S TATE DEPARTMENT OF C ORRECTIONS AND C OMMUNITY S UPERVISION, 17
A NTHONY J. A NNUCCI , in his official capacity as the acting commissioner of the 18
New York State Department of Corrections and Community Supervision, S TATE 19
OF NEW YORK, D R . MERVAT R. MAKRAM , D R . THOMAS V ITO S TELLATO , D R . 20
A NTHONY L. R ITACCIO , 21
Defendants-Appellees, 22
23
JOHN D OES , C ORRECTIONS O FFICERS 1-10, JANE /JOHN D OES and MEDICAL 24
PERSONNEL 1-10, 25
Defendants, 26
O FFICE OF NEW Y ORK S TATE ATTORNEY G ENERAL , 27
28
Interested-Party. 29
________ 30
31
Appeal from the United States District Court 32
for the Southern District of New York 33
Docket No. 1:22-cv-01604 – Colleen McMahon, District Judge. 34
________ 35
36
Before: CALABRESI, MENASHI, and PÉREZ, Circuit Judges. 37

-- 1 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
2
________ 1
While he was incarcerated at Woodborne Correctional Facility, Plaintiff- 2
Appellant Antonio Mallet repeatedly sought medical care for urinary obstruction 3
and painful urination. These are classic symptoms of prostate cancer. While Mallet 4
was referred to a physician for a cystoscopy, the prison doctors failed to conduct 5
any additional testing to investigate the worrisome cystoscopy results or to look 6
further for prostate cancer. Instead, Mallet was prescribed medication to treat a 7
benign enlarged prostate and led to believe that his urinary symptoms would 8
resolve in due course. They did not. 9
Mallet was released on parole in January 2019. With the opportunity to 10
consult outside medical providers, he was eventually diagnosed with late-stage 11
prostate cancer in May 2021. On February 25, 2022, Mallet sued the State of New 12
York, the New York State Department of Corrections and Community Supervision 13
(“DOCCS”), Anthony J. Annucci in his official capacity as the acting commissioner 14
of DOCCS, and three medical providers Mallet saw while incarcerated, Dr. Mervat 15
Makram, Dr. Thomas Stellato, and Professor Anthony Ritaccio. Mallet’s complaint 16
alleged deliberate indifference to his medical needs in violation of the Eighth 17
Amendment, as well as other Fifth, Eighth, and Fourteenth Amendment 18
violations, retaliation, conspiracy, malpractice, and negligence. Upon motion from 19
the defendants, the district court (McMahon, J.) dismissed the constitutional 20
claims as untimely, reasoning that the deliberate indifference claim must have 21
accrued by the time Mallet was released from custody in January 2019 and, 22
therefore, was not within the three-year statute of limitations for Section 1983 23
claims in New York State. Having dismissed the constitutional claims, the district 24
court declined to exercise supplemental jurisdiction over the remaining state law 25
claims pursuant to 28 U.S.C. § 1367(c)(3). 26
We find that, based on the facts alleged in the complaint, it is plausible that 27
Mallet’s deliberate indifference claim had not accrued by February 25, 2019, and 28
thus it is also plausible that his complaint was filed within the three-year 29
limitations period. Furthermore, with respect to defendants Dr. Makram and Dr. 30
Stellato, we reject Defendants-Appellees’ argument that the judgment can be 31

-- 2 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
3
affirmed on the alternative ground that the Eighth Amendment claims are 1
implausible. We, however, find that Mallet has failed to state a plausible Eighth 2
Amendment claim against Professor Ritaccio, and we also find that the 3
constitutional claims against New York State, DOCCS, and Annucci acting in his 4
official capacity are barred by sovereign immunity. We therefore AFFIRM in part, 5
REVERSE in part, and VACATE in part, and the case is REMANDED for further 6
proceedings. 7
Judge Menashi dissents in a separate opinion. 8
9
10
C ANER D EMIRAYAK , Law Office of Caner Demirayak, Esq., for Plaintiff- 11
Appellant. 12
13
D ANIEL S. MAGY , Office of the New York State Attorney General, for 14
Defendants-Appellees. 15
16
C ALABRESI, Circuit Judge: 17
This case asks us to apply the established rule for statutes of limitations— 18
that they accrue when the plaintiff knew or should have known the facts that 19
establish their claim—to Antonio Mallet’s allegation that New York State, the New 20
York State Department of Corrections and Community Supervision, the 21
Department’s acting commissioner at the time of his incarceration, and Dr. Mervat 22
Makram, Dr. Thomas Stellato, and Professor Anthony Ritaccio (collectively, 23
“Defendants-Appellees”) acted with deliberate indifference in failing to treat 24
Mallet’s prostate cancer while he was incarcerated. 25

-- 3 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
4
The United States District Court for the Southern District of New York 1
(McMahon, J.) granted the Defendants-Appellees’ Rule 12(b)(6) motion and 2
dismissed Mallet’s suit as untimely. Mallet alleges, and at this stage we must 3
accept, that when he repeatedly sought treatment for his urinary symptoms, he 4
did not recognize those symptoms as telltale signs of prostate cancer—but the 5
Defendants-Appellees did, and they consciously disregarded that risk. Because 6
the injury for which Mallet seeks relief is cancer, the relevant question is when he 7
knew or should have reasonably known that he had prostate cancer. This is a 8
question of fact, but at this stage, it is very plausible that Mallet acquired this 9
knowledge less than three years before he filed this suit, rendering his claims 10
timely. 11
Therefore, we reverse the district court’s dismissal of Mallet’s deliberate 12
indifference claims against Dr. Makram and Dr. Stellato. We also vacate the 13
dismissal of the other six constitutional claims against Dr. Makram, Dr. Stellato, 14
and Professor Ritaccio and the dismissal of the state claims against all Defendants- 15
Appellants. We, however, affirm the dismissal of the deliberate indifference claim 16
against Professor Ritaccio as implausible and the dismissal of all constitutional 17

-- 4 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
5
claims against New York, DOCCS, and Anthony Annucci as barred by sovereign 1
immunity. 2
BACKGROUND 3
A. Factual Background1 4
Antonio Mallet was an inmate in the custody of DOCCS from 1999 to 2019. 5
On April 21, 2017, while incarcerated at Woodborne Correctional Facility, Mallet 6
asked his primary care provider Dr. Mervat Makram for a referral to a specialist 7
who could treat symptoms of urinary obstruction. On September 7, 2017, Mallet 8
was examined by Dr. Thomas Stellato, a urologist at Kingston Urological 9
Associates. Dr. Stellato performed a cystoscopy, “which confirmed urinary 10
retention, urinary obstructive symptoms and mild congestion of the prostatic lobe, 11
posterior urethra and bladder neck” and also revealed “evidence of bladder 12
trabeculation +1.” J. App’x at 14. These results, Mallet alleges, “would lead any 13
1 All citations to the record refer to Mallet’s amended complaint.

-- 5 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
6
reasonable medical professional to order additional testing to rule out prostate 1
cancer.” Id. 2
But Dr. Stellato did not order additional testing for prostate cancer. Instead, 3
he recommended that Mallet take Flomax, “an alpha-blocker medication that 4
helps with urinary dysfunction” but “neither treats nor addresses prostate 5
cancer.” Id. at 15. He also recommended that Mallet be seen by a neurologist, 6
“without any explanation as to how a neurologist would have any ability to 7
inspect [Mallet’s] urological systems.” Id. at 14. Dr. Makram reviewed Dr. 8
Stellato’s clinical report, and she too did not order any additional testing for 9
prostate cancer. But she did refer Mallet to a neurologist at Dr. Stellato’s 10
recommendation. 11
On October 12, 2017, Mallet again complained of urinary dysfunction to the 12
Woodborne medical staff, and he was again advised to continue taking Flomax. 13
Dr. Makram reviewed the note from this encounter and continued to prescribe the 14
medication without conducting further testing to detect or rule out prostate 15
cancer. One week later, on October 20, 2017, Mallet complained of upper 16
abdominal pain and reported blood in the toilet. Dr. Makram “reviewed this note” 17

-- 6 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
7
and personally examined Mallet, but, once again, she “did not address the urinary 1
symptoms and clinical signs of prostate cancer.” Id. at 15. 2
On November 22, 2017, Mallet was examined by Anthony Ritaccio, a 3
Professor of Medicine at Albany College who is unlicensed to practice medicine in 4
the State of New York. Professor Ritaccio was “tasked by the governmental 5
defendants to perform follow up testing and examination of plaintiff as a 6
neurologist.” Id. at 11. In his subsequent report of the encounter, Professor Ritaccio 7
wrote a note saying, “I am not a neurologist. I don’t have a differential for this.” 8
Id. at 15. He also questioned why Dr. Stellato had referred Mallet to a neurology 9
professor to treat urinary obstruction. Dr. Makram reviewed Professor Ritaccio’s 10
notes but again “took no other actions.” Id. 11
On November 27, 2017, Mallet again reported urinary retention to the 12
attending nurse at Woodborne. He made similar reports on March 5 and 6, 2018. 13
And then again on September 14, 2018. Each time, Dr. Makram and her staff “did 14
nothing to address” the indications of prostate cancer. Id. at 16. Moreover, their 15

-- 7 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
8
records from the March visits “falsely stated” that Mallet’s cystoscopy in 1
September had “yielded negative results.” Id. 2
During this period, “officers and nurses would call [Mallet] scum for 3
continuing to ask for medical treatment,” insisting that he was faking his inability 4
to urinate so that he could avoid a positive drug test. J. App’x at 12–13. They also 5
told Mallet that “he would only get the minimum treatment the State will allow at 6
the behest of [Dr. Makram],” that “he should not expect good treatment in prison[,] 7
and that not everyone makes it out alive.” Id. at 13. 8
In the fall of 2018, Mallet was transferred to Queensboro Correctional 9
Facility in anticipation of his upcoming parole. There, he was examined by another 10
medical provider who reviewed his records from Woodborne. This provider told 11
Mallet that she was unwilling to “change his treatment or prescriptions . . . after 12
so many years of consistent treatment,” but she added that once Mallet was 13
released on parole, he would “hopefully . . . get better treatment.” J. App’x at 17. 14
Mallet was paroled on January 16, 2019. It had been over twenty months 15
since he first complained of urinary difficulties. In July 2019, Mallet sought 16
treatment for his persistent symptoms at Woodhull Hospital, and he was 17
eventually referred to a urologist. Until this, Mallet had been using the remaining 18

-- 8 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
9
Flomax prescription and “was not aware of any cancer in his prostate.” When 1
Mallet saw the urologist on August 10, 2020, he was found to have an elevated 2
Prostate-Specific Antigen (“PSA”) level of 8.43.2 The urologist prescribed 3
medication “in an attempt to shrink the prostate to determine possible causes of 4
the elevated PSA level and urinary blockage.” J. App’x at 18. At follow-up visits 5
on October 14, 2020, and February 16, 2021, Mallet’s PSA levels were slightly 6
reduced from the August test but still abnormally high. 7
On April 6, 2021, the urologist performed a biopsy of Mallet’s prostate, 8
which ultimately revealed “a large tumorous carcinoma.” J. App’x at 18. On June 9
10, 2021, Mallet “was forced to undergo a robotic assisted radical prostatectomy 10
due to the advanced prostate cancer.” Id. The post-operative report from the 11
surgery “noted a Gleason score of 10 out of 10 (indicative of very aggressive 12
cancer) and adenocarcinoma of the prostate.” Id. Mallet alleges that it was around 13
this time, in the late spring of 2021, that he first “began to suspect he may have 14
2 Mallet alleges that his urology appointment was delayed due to his difficulties finding
health insurance combined with the COVID-19 lockdown restrictions.

-- 9 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
10
been a victim of the defendants’ failure to properly treat, diagnose and care for his 1
prostate.” Id. at 19. 2
Mallet now uses a bag to urinate and can no longer produce viable semen. 3
He also suffers from daily severe pain, and, as of June 2022, was expected to have 4
at least three more surgeries—including a penile prothesis implantation. As for his 5
life expectancy, Mallet states that his “chance of survival from the cancer is non- 6
existent as the prostate cancer has metastasized.” Id. 7
B. Procedural History 8
Mallet filed his initial complaint on February 25, 2022, followed by an 9
amended complaint on June 30, 2022. The amended complaint included seven 10
claims under 42 U.S.C. § 1983 alleging: (1) deliberate indifference to a serious 11
medical condition in violation of the Eighth Amendment; (2) denial of medical care 12
in violation of the Fourteenth Amendment; (3) retaliation; (4) other violations of 13
the Fifth, Eighth, and Fourteenth Amendments; (5) failure to intervene in 14
constitutional rights violations; (6) supervisory liability for constitutional rights 15
violations; and (7) conspiracy to violate constitutional rights (“the constitutional 16

-- 10 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
11
claims”). The amended complaint also included two state law claims for (8) 1
medical malpractice and (9) negligence. 2
Defendants-Appellees moved to dismiss the amended complaint pursuant 3
to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). They argued that: (a) the 4
constitutional claims were time-barred; (b) the constitutional claims were 5
implausible; (c) the individual defendants were covered by qualified immunity on 6
the constitutional claims; (d) the state defendants were covered by sovereign 7
immunity on the constitutional claims; (e) the state law claims against the 8
individual defendants could not be brought in federal court under New York 9
statutory law; and (f) the court should decline to exercise supplemental 10
jurisdiction over the remaining state law claims once the constitutional claims 11
were dismissed. 12
The district court granted the motion to dismiss based on the statute of 13
limitations for the deliberate indifference claim. The district court reasoned that 14
Mallet’s Eighth Amendment claim must have accrued, at the latest, by the time he 15
was released from prison in January 2019 because he should have known that he 16
was (allegedly) being treated with deliberate indifference while he was 17
incarcerated. Accordingly, the district court determined that Mallet’s 18

-- 11 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
12
constitutional claims were untimely because Section 1983 claims have a three-year 1
statute of limitations in New York, yet Mallet’s complaint was filed more than 2
three years after the latest possible accrual date.3 Having dismissed the 3
constitutional claims, the district court declined to exercise supplemental 4
jurisdiction over the remaining state law claims and dismissed them without 5
prejudice. Mallet timely appealed. 6
DISCUSSION 7
A. Standard of Review 8
“We review de novo a district court’s grant of a motion to dismiss, including 9
its legal interpretation and application of a statute of limitations.” Deutsche Bank 10
Nat’l Tr. Co. v. Quicken Loans Inc., 810 F.3d 861, 865 (2d Cir. 2015) (citation omitted). 11
“To survive a motion to dismiss, a complaint must contain sufficient factual 12
matter, accepted as true, to state a claim to relief that is plausible on its face.” Shomo 13
v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009) (internal quotation marks 14
omitted) (quoting Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009)). 15
3 The district court analyzed the timeliness of all seven constitutional claims using the
accrual date for the Eighth Amendment claim, and neither party argues on appeal that the
constitutional claims might have accrued on different dates. We therefore proceed on the
assumption that the timeliness of all seven constitutional claims rises and falls with that of the
Eighth Amendment claim.

-- 12 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
13
B. Accrual 1
A Section 1983 claim does not accrue until the plaintiff “has a complete and 2
present cause of action.” Smith v. Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (internal 3
quotation marks omitted); see also Wallace v. Kato, 549 U.S. 384, 388 (2007). The 4
accrual analysis involves two steps. We begin by “identifying the specific 5
constitutional right alleged to have been infringed.” McDonough v. Smith, 588 U.S. 6
109, 115 (2019) (internal quotation marks omitted); see also, e.g., Campbell, 782 F.3d 7
at 100 (reviewing the elements of a First Amendment retaliation claim to 8
determine accrual date). Next, we ask when the plaintiff knew or had reason to 9
know of “the injury which is the basis of his action,” i.e., the alleged injury which— 10
according to the plaintiff—amounts to an infringement of that constitutional right. 11
Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980); see also Eagleston v. 12
Guido, 41 F.3d 865, 871 (2d Cir. 1994). In both steps of this analysis, we may look 13
to “common-law principles governing analogous torts” as a “source of inspired 14
examples.” McDonough, 588 U.S. at 116 (internal quotation marks omitted). But the 15
accrual date of a Section 1983 claim is ultimately a “question of federal law,” 16
Wallace, 549 U.S. at 388, and as such our analysis is governed by federal 17
“articulations of the right at issue and its contours.” McDonough, 588 U.S. at 115. 18

-- 13 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
14
Mallet claims that his Eighth Amendment right to be free from cruel and 1
unusual punishment was infringed by Defendants-Appellees’ “deliberate 2
indifference” to his “serious medical needs.” Estelle v. Gamble, 429 U.S. 97, 104 3
(1976). “The standard of deliberate indifference includes both subjective and 4
objective components.” Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). First, 5
Mallet must show that, while he was incarcerated, he suffered from a medical 6
condition that is, “in objective terms, sufficiently serious.” Id. (internal quotation 7
marks omitted). Though there is no single metric, we have previously held that a 8
“sufficiently serious” medical condition in the Eighth Amendment context refers 9
to a “condition of urgency that may result in degeneration or extreme pain,” id., 10
that “significantly affects daily activities,” or that involves “chronic and 11
substantial pain.” Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003) (internal 12
quotation marks omitted). The condition need not be “life-threatening” or “at the 13
limit of human ability to bear,” but it must be more than simply “uncomfortable 14
and annoying.” Id. at 163; see also Collymore v. Myers, 74 F.4th 22, 30 (2d Cir. 2023) 15
(noting that Eighth Amendment deliberate indifference claim will be dismissed 16
unless “a plaintiff plausibly alleges a condition that produces severe and 17
unmanaged pain”). 18

-- 14 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
15
If Mallet can prove that he suffered from an objectively serious medical 1
condition within the meaning of the Eighth Amendment, he will then have to 2
establish that Defendants-Appellees acted with a “sufficiently culpable state of 3
mind.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1996). To prevail, he must show 4
that the acts or omissions of Defendants-Appellees “evince[d] a conscious 5
disregard of a substantial risk of serious harm.” Darby v. Greenman, 14 F.4th 124, 6
128 (2d Cir. 2021) (internal quotation marks omitted); see also Farmer v. Brennan, 7
511 U.S. 825, 835 (1994). 8
Taken together, then, Mallet’s deliberate indifference claim could not have 9
accrued until he either knew or had reason to know both (1) that he suffered from 10
an objectively serious medical condition while he was incarcerated and (2) that 11
Defendants-Appellees failed to provide adequate treatment because they 12
consciously disregarded a substantial risk to his health and safety. Put differently, 13
Mallet could not have brought his deliberate indifference claim before he knew or 14
should have known these facts because he would not yet have had a complete and 15
present cause of action. See Campbell, 782 F.3d at 100. 16
Under this standard, the accrual analysis for an Eighth Amendment 17
deliberate indifference claim often raises factual questions about when a plaintiff 18

-- 15 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
16
knew or should have known of the circumstances tending to establish either the 1
objective or subjective components of the alleged violation. Cf. Barret v. United 2
States, 689 F.2d 324, 333 (2d Cir. 1982) (finding that there were outstanding issues 3
of fact raised by the accrual test for a medical malpractice claim); Kronish v. United 4
States, 150 F.3d 112, 124 (2d Cir. 1998) (noting that the Bivens claim accrual analysis 5
may raise a “question for the jury” about when the plaintiff knew or should have 6
known of his alleged constitutional injury). These factual issues must, as always, 7
be dealt with in a way that is appropriate to the relevant stage of litigation. Where, 8
as here, the statute-of-limitations defense has been raised at the pleadings stage, 9
all factual allegations in the complaint must be accepted as true, and all reasonable 10
inferences must be drawn in the plaintiff’s favor. See Shomo, 579 F.3d at 183. 11
Mallet’s complaint alleges that he neither knew nor should have known that 12
he was suffering from the serious medical condition of prostate cancer until after 13
he was released from custody. When all reasonable inferences are drawn in his 14
favor, this claim is entirely plausible. Indeed, the gravamen of Mallet’s complaint 15
is that none of the medial providers he saw while incarcerated told him that he 16
was exhibiting classic symptoms of prostate cancer or conducted the appropriate 17
screening tests. Thus, although Mallet surely knew that he had some kind of 18

-- 16 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
17
persistent medical problem which the Flomax was not addressing—which, we can 1
only assume, is why he continued to speak with providers about his urinary 2
issues—it is not reasonable to infer that he either knew or should have known that 3
he was suffering from this particular serious medical condition—cancer—when 4
none of the doctors he saw in prison gave him any indication that his condition 5
was possibly cancer. Cf. Toal v. United States, 438 F.2d 222, 225 (2d Cir. 1971) 6
(finding no clear error in district court’s determination that malpractice claim had 7
not accrued while plaintiff continued to rely on his doctor’s “confident prognosis” 8
that he “needn’t worry” about his persistent symptoms).4 Throughout his 9
incarceration, then, Mallet could have reasonably assumed that he was 10
experiencing “uncomfortable and annoying” urinary problems, which might 11
4 To be sure, this principle from Toal was later called into question by United States v.
Kubrick, 444 U.S. 111 (1979). In Kubrick, the Supreme Court held that a malpractice claim brought
under the Federal Tort Claims Act (“FTCA”) accrues when a reasonable person in the plaintiff’s
position would have “made inquiry among doctors with average training and experience in such
matters” and, having done so, would have been told that “the defendant ha[d] failed to live up
to minimum standards of medical proficiency.” Id. at 122–23.
The instant case is not controlled by Kubrick, however. Neither we nor the Supreme Court
has ever held that the Kubrick accrual rule applies to Eighth Amendment claims. And with good
reason: unlike the plaintiff in Kubrick, an incarcerated person is not necessarily able to make her
or his own independent inquiries about the quality of care she or he receives in prison. In this
sense, she or he often is “at the mercy of” the very actors allegedly denying her proper medical
treatment. See Kubrick, 444 U.S. at 122. For this reason, we find it entirely appropriate to continue
to use Toal’s accrual standard in the context of Eighth Amendment claims.

-- 17 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
18
qualify as serious, but not the symptoms of the serious underlying condition— 1
cancer—as to which he is suing. Brock, 315 F.3d at 163. Therefore, it is plausible 2
that his deliberate indifference claim had not accrued by the time he was released 3
from prison.5 4
Nonetheless, Mallet’s further claim that he neither knew nor should have 5
known that he had this particular serious medical condition until he was officially 6
diagnosed with prostate cancer in May 2021 is not plausible, considering the other 7
facts alleged in his complaint. For example, Mallet alleges that when he visited the 8
urologist on August 10, 2020, he was found to have an elevated PSA level and was 9
prescribed a new medication to shrink his prostate. And then on April 6, 2021, 10
once that medication also proved ineffective, the urologist conducted a biopsy of 11
his prostate. Thus, Mallet was presumably put on notice that he had this specific 12
5 In its decision below, the district court referenced a letter that Mallet’s attorney wrote to
the prison superintendent on June 25, 2018, asking why Mallet had not yet been treated for “a
painful herniated disc in his back.” J. App’x at 71. According to the district court, this letter
demonstrated Mallet’s “awareness of an injury” during his incarceration. Id. at 123. Nonetheless,
because the letter dealt with a separate medical issue, Defendants-Appellees rightfully concede
on appeal that this “letter is not necessary to determine when Mallet’s federal law claims
accrued.” Appellees’ Br. at 18 n.2.

-- 18 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
19
serious medical condition related to his prostate issues earlier in the treatment 1
process, before he got the official cancer diagnosis.6 2
This means that, based on the facts alleged in the complaint, Mallet’s claim 3
must have accrued at some point after his release in January 2019 but before his 4
diagnosis in the late spring of 2021. Determining the exact accrual date in this 5
context may ultimately be a task for the factfinder. See Eagleston, 41 F.3d at 871. It 6
will depend, most of all, on what exactly Mallet’s post-release providers told him 7
and when they told him. Nonetheless, based on the pleadings alone, we find it 8
entirely plausible that Mallet neither knew nor should have known that his 9
condition was not only serious but potentially cancer until, say, August 2020, 10
when the first PSA test was administered. And if that is so, then it is also plausible 11
that Mallet’s claim was timely, since Mallet’s complaint was filed less than three 12
6 We recognize that this result differs from those reached by our sister circuits in Devbrow
v. Kalu, 705 F.3d 765, 769 (7th Cir. 2013) (holding that because plaintiff’s specific theory of
deliberate indifference as alleged in his complaint was that the prison doctors culpably allowed
his prostate cancer to metastasize, his deliberate indifference claim did not accrue until he was
diagnosed with late-stage cancer) and Lawson v. Okmulgee Cnty. Crim. Just. Auth., 726 F. App’x
685, 691 (10th Cir. 2018) (affirming the dismissal of a deliberate indifference claim as untimely
because the claim must have accrued at the latest when the plaintiff learned he had cancer).
To the extent that those cases should be read as adopting a bright-line rule that a deliberate
indifference claim for failure to diagnose and treat cancer cannot accrue until the plaintiff is
officially diagnosed, we respectfully depart from that approach. However, we do not think that
those cases are best read as adopting such a bright-line rule; therefore, contrary to Mallet’s
suggestion [Reply Br. at 6], we do not think that our holding creates a circuit split.

-- 19 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
20
years after that.7 Therefore, the motion to dismiss the Eighth Amendment claim as 1
time-barred was improperly granted.8 2
7 On appeal, Mallet argues in the alternative that his complaint was timely even if the
deliberate indifference claim had accrued more than three years earlier because (a) the court
should have applied a seven-year statute of limitations; or, alternatively, (b) the Governor of New
York tolled the three-year statute of limitations for personal injury claims during the COVID-19
pandemic, thus tolling the limitations period for Section 1983 claims as well. We decline to
address these arguments here because they (a) were not raised below and (b) are not necessary
to decide this appeal.
8 The dissent is, of course, correct that knowledge of an objectively serious condition is
needed for this suit to proceed. But everything in the dissent flows from two errors in its analysis.
The dissent first conflates two potentially serious conditions: chronic prostatitis and
prostate cancer. While these conditions share some similar symptoms, the difference between
chronic prostatitis and prostate cancer is not one of degree—“the full extent of the injury”—but
of kind. Wallace, 549 U.S. at 391. As the dissent correctly notes, Mallet’s complaint speaks only to
cancer because that is the serious condition for which Mallet alleges he received constitutionally
inadequate treatment. Mallet was certainly unhappy with his treatment when he believed he had
some benign condition or infection that Flomax was not remedying. Whether Mallet could have
also plausibly alleged that the Defendants-Appellees were deliberately indifferent in their
treatment of Mallet’s prostatitis, had he sued earlier, is irrelevant to this case. Instead, Mallet
waited and brought this suit, alleging that the Defendants-Appellees were deliberately indifferent
to his prostate cancer. He could not have brought such a suit until he himself knew or should
have known about his prostate cancer. This does not mean “that Mallet’s urinary symptoms were
not symptoms of cancer,” post at 19, but it does mean that those symptoms were insufficient to
give Mallet, as a layperson, actual or constructive knowledge of his cancer.
The dissent’s second mistake is that it assumes that believing that what was known by a
medical professional must also have been known by an ordinary person. Mallet has made a
plausible argument that the Defendants-Appellees knew of his prostate cancer when he, and a
reasonable lay person like him, would not have. The dissent instead repeatedly argues that the
Defendants-Appellees cannot possibly be held accountable for knowing about and failing to treat
an objectively serious condition if Mallet himself did not know of the condition.
Our court and others have clearly indicated that a condition is objectively serious if a
person informed of the diagnosis would consider it so. E.g., Brock, 315 F.3d at 162 (indicating that,
while “[t]here is no settled, precise metric” for a serious condition, one factor is “whether a
reasonable doctor or patient would perceive the medical need in question as important and worthy
of comment or treatment” (emphasis added) (citation omitted)); Lumbard v. Lillywhite, 815 F.

-- 20 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
21
Defendants-Appellees suggest that our analysis runs afoul of the accrual 1
framework articulated in Wallace v. Kato. In that case, which concerned a Section 2
App’x 826, 832 (6th Cir. 2020) (“[W]e have looked not to what was obviously detectable to the eye
but instead to whether a layman, made aware of an individual’s actual medical condition, would
consider the condition to be obviously medically serious. . . . [A] plaintiff need not know he is
experiencing a serious medical condition for the condition to satisfy the objective component of
deliberate indifference.” (citations omitted)). And no court that we know of has held the contrary.
Indeed, we are unaware of any court that has held, for example, that the statute of
limitations begins immediately for a person who experiences “chronic and substantial pain” and
other symptoms, is told by their doctor that these are symptoms of a condition treatable by
antibiotics, and finishes the course of antibiotics, only to then learn that their pain was actually a
symptom of cancer that their doctor knew or should have known about, at the level of deliberate
indifference, all along. Nor do we know of any court that would bar that plaintiff from alleging
their doctor’s awareness of their cancer simply because they had not recognized their own
symptoms as cancer. Yet this would be the result of our adopting the rule urged by the dissent,
incorporating these two errors into our caselaw. We decline to do so. None of our sister circuits
have adopted the dissent’s rule. See, e.g., Augustine v. United States, 704 F.2d 1074, 1078 (9th Cir.
1983) (finding that when “the injury alleged by [a plaintiff] is not the bump on his palate but the
development of the bump from a controllable medical condition into incurable metastatic
cancer,” the date of accrual is when the “plaintiff discovered or . . . should have discovered that
the failure of his doctors to diagnose, treat, or warn him led to his deteriorating physical
condition”); Devbrow, 705 F.3d at 769; Lawson, 726 F. App’x at 691. And lower courts have taken
our reading for granted. E.g., Waters v. Geo Grp., Inc., No. 2:15-CV-00282, 2016 WL 4373717, at *5
(E.D. Va. Aug. 10, 2016) (beginning the statute of limitations, at the latest, when the plaintiff
learned that the growth on his neck was malignant rather than when he learned about the
growth); Richards v. Pickett, No. 5:18-CV-00912, 2018 WL 8731560, at *5 (C.D. Cal. Dec. 13, 2018)
(beginning the statute of limitations when the plaintiff learned that his cancer had become
terminal, not when he learned of the cancer, because that was the specific harm upon which his
complaint was based); McDonald v. Macabuhay, No. 2:07-CV-01022, 2009 WL 2432833, at *6 (D.
Ariz. Aug. 10, 2009) (rejecting as “circuitous logic” the defendant’s argument that his imprisoned
patient “had enough information to draw the inference that he was at risk [of harm from his
Hepatitis], but . . . the physician treating him did not have enough information to draw that
inference”).
Everything else in the dissent flows from those two errors. For that reason, we believe that
most of the dissent’s discussion fails. As to the Defendants-Appellees’ purported qualified
immunity, the dissent’s discussion is based on arguments on which the majority does not rule.

-- 21 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
22
1983 false imprisonment claim, the Supreme Court applied the common law rule 1
that “the tort cause of action accrues . . . when the wrongful act or omission results 2
in damages,” even if “the full extent of the injury is not then known or 3
predictable.” Wallace, 549 U.S. at 391 (internal quotation marks omitted). 4
We disagree that our decision conflicts with this framework. The fact that 5
Mallet’s urinary problems were later revealed to be symptoms of a different, 6
serious medical condition does not (merely) demonstrate the “full extent” of his 7
alleged injury; it is an essential element of his claim that Defendants-Appellees 8
were deliberately indifferent to his prostate cancer, without which Mallet could 9
not have alleged this “constitutionally cognizable” injury at all. Chance, 143 F.3d at 10
702; see also, e.g., Brock, 315 F.3d at 163; Collymore, 74 F.4th at 30-31. 11
In other words, the moment when Mallet knew or should have known that 12
he possibly had prostate cancer is analogous to the moment when, in Wallace v. 13
Kato, Andre Wallace knew or should have known that he had been detained 14
without adequate legal process. By contrast, the moment when Mallet discovered 15
that the prison doctors’ (alleged) indifference to his medical needs resulted in a 16
prostatectomy is analogous to the moment when Wallace discovered that the 17
confession he gave during his (allegedly) unlawful detention resulted in a false 18

-- 22 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
23
murder conviction. The facts in the first pair are themselves needed to establish 1
the fundamental elements of the constitutional injuries alleged, while the facts in 2
the second pair simply go to the “full extent” of the “consequential damages” 3
inflicted by those injuries. Wallace, 549 U.S. at 391. 4
Indeed, and not surprisingly, after Wallace v. Kato, several of our sister 5
circuits have also found that an Eighth Amendment deliberate indifference claim 6
does not accrue until the plaintiff knew or should have known that the specific 7
condition that gave rise to his suit was sufficiently serious. See Vasquez v. Davis, 8
882 F.3d 1270, 1276 (10th Cir. 2018) (finding that “[t]he claim accrued once Vasquez 9
knew Defendants’ deliberate indifference caused him substantial harm, even 10
though the full extent of the injury [wa]s not then known or predictable” 11
(emphasis added) (quoting Wallace, 549 U.S. at 391) (internal quotation marks 12
omitted)); Devbrow, 705 F.3d at 769 (holding that plaintiff’s deliberate indifference 13
claim did not accrue until he learned he had late-stage cancer). 14
Therefore, our conclusion that Mallet’s deliberate indifference claim did not 15
accrue until he either knew or had reason to know the facts which tended to 16
establish one of the essential elements of the claim that gave rise to his suit—that 17
he possibly had cancer, and that this was the serious medical condition that gave 18

-- 23 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
24
rise to his claim under the Eighth Amendment—is consistent with the framework 1
articulated in Wallace v. Kato. 2
In Wallace v. Kato, of course, there was no factual dispute about when 3
Wallace knew or should have known that he had been unlawfully detained, so the 4
Court could resolve the timeliness of his false imprisonment claim as a matter of 5
law. But in the instant case, the moment at which Mallet knew or should have 6
known his serious medical condition was possibly cancer is a question of fact that 7
has not yet been determined and must at this stage be read in Mallet’s favor. 8
C. Plausibility of the Section 1983 Claims 9
As an alternative basis for affirming, Defendants-Appellees argue that the 10
deliberate indifference claim should have been dismissed for failure to state a 11
plausible claim for relief.9 They do not, of course, dispute that terminal prostate 12
cancer is an objectively serious medical condition. Rather, they argue that Mallet’s 13
complaint does not allege sufficient facts to plausibly establish the subjective 14
9 Although the district court did not reach the plausibility arguments below, we “may
affirm on any basis for which there is sufficient support in the record, including grounds not
relied on by the district court.” Lotes Co. v. Hon Hai Precision Indus. Co., 753 F.3d 395, 413 (2d Cir.
2014) (quoting Bruh v. Bessemer Venture Partners III L.P., 464 F.3d 202, 205 (2d Cir. 2006)). We will
do so in the instant case, in the interest of judicial economy, but only as to those claims for which
further consideration by the district court would not be helpful.

-- 24 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
25
component of the deliberate indifference claim, i.e., that Defendants-Appellees 1
consciously disregarded substantial risks to Mallet’s health by failing to conduct 2
the appropriate screening tests. In their view, Mallet alleges nothing more than a 3
“mere disagreement over the proper treatment” for his symptoms, which might 4
be enough for a malpractice claim but falls short of an Eighth Amendment 5
violation. Hill v. Curcione, 657 F.3d 116, 123 (2d Cir. 2011); accord Harrison v. Barkley, 6
219 F.3d 132, 139 (2d Cir. 2000). 7
With respect to Dr. Makram and Dr. Stellato, we disagree. According to 8
Mallet’s complaint, “officers and nurses would call [him] scum for continuing to 9
ask for medical treatment,” “question [Mallet’s] repeated sick call requests,” and, 10
in fact, told him that “he would only get the minimum treatment the State will 11
allow at the behest of [Dr. Makram].” J. App’x at 13. If we accept, as we must, that 12
these statements were made, and we reasonably infer that the statements were 13
based on prison staff’s personal knowledge, then it is certainly plausible that Dr. 14
Makram “consciously cho[se] an easier and less efficacious treatment plan” for 15
Mallet’s symptoms—a standard theory of Eighth Amendment deliberate 16
indifference. Chance, 143 F.3d at 703 (citing Williams v. Vincent, 508 F.2d 541, 544 17
(2d Cir. 1974)). 18

-- 25 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
26
Dr. Stellato, for his part, is a urologist. Thus, a reasonable factfinder could 1
infer from the complaint that he had “actual knowledge” of the risk that Mallet 2
might have prostate cancer—given the abnormal cystoscopy results—and, 3
therefore, that his subsequent decision not to conduct a PSA test evinced 4
“deliberate indifference toward that risk.” Chance, 143 F.3d at 703; see, e.g., Hart v. 5
Blanchette, 149 F. App’x 45, 47 (2d Cir. 2005) (reversing summary judgment on a 6
deliberate indifference claim where “the determination of the difference between 7
negligence and deliberate indifference is . . . one for a trier of fact to make.”). For 8
these reasons, we hold that the Eighth Amendment claims against Dr. Makram 9
and Dr. Stellato are sufficiently plausible to survive the pleading stage. 10
As for Professor Ritaccio, however, we hold that Mallet does not state a 11
plausible deliberate indifference claim. Even assuming that Professor Ritaccio 12
should be considered a state actor,10 it cannot be said that he was aware of and 13
“consciously disregarded” the substantial risks to Mallet’s health. As Mallet 14
alleges in his complaint, Professor Ritaccio examined him and noted his symptoms 15
of urinary retention and bladder dysfunction. Professor Ritaccio further noted 16
10 Neither party has addressed this issue.

-- 26 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
27
that, in light of Mallet’s symptoms, he was unsure why Mallet was referred to him 1
for “a neuro evaluation.” J. App’x at 15. Professor Ritaccio also noted that he is 2
“not a neurologist” and he does not “have a differential for this.” Id. Despite not 3
being Mallet’s primary care provider or a urologist, Professor Ritaccio examined 4
Mallet and made the above-mentioned notes for Dr. Makram to review. Under 5
these circumstances, it is unreasonable to infer that Professor Ritaccio would have 6
immediately recognized the hallmark symptoms of prostate cancer or that he 7
would have been able to recommend an appropriate treatment plan for Mallet. 8
Therefore, we affirm the dismissal of the deliberate indifference claim against 9
Professor Ritaccio on the alternative basis that the complaint failed to state a 10
plausible claim for relief against him. 11
D. Sovereign Immunity 12
We also affirm the dismissal of all seven Section 1983 claims against the State 13
of New York, DOCCS, and Annucci acting in his official capacity as commissioner 14
of DOCCS, as the Supreme Court has held that Section 1983 does not abrogate 15
sovereign immunity. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); 16
Horne v. Coughlin, 191 F.3d 244, 246 (2d Cir. 1999); see also Al-Jundi v. Estate of 17
Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989) (“[A] Section 1983 claim for damages 18

-- 27 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
28
against a state official can only be asserted against that official in his or her 1
individual capacity.” (emphasis added)).11 2
E. The Remaining Claims 3
In light of our holdings that Mallet’s case is not, as a matter of law, barred 4
by the statute of limitations and that his deliberate indifference claims against Dr. 5
Makram and Dr. Stellato are plausible enough to be reinstated, we also vacate the 6
district court’s order declining to exercise supplemental jurisdiction over the 7
common law medical malpractice and negligence claims. Additionally, because 8
the district court did not individually assess the plausibility of the six remaining 9
constitutional claims against Dr. Makram, Dr. Stellato, and Professor Ritaccio, we 10
vacate the dismissal of those claims as well, without expressing any opinion on 11
their plausibility. 12
11 Defendants-Appellees also argue that Dr. Stellato, Dr. Makram, and Professor Ritaccio
are entitled to qualified immunity on the constitutional claims. Given that the district court did
not reach this issue, we decline to resolve it here. We thus remand to the district court to evaluate
whether these defendants are entitled to qualified immunity, bearing in mind that there does not
need to be Second Circuit caselaw explicitly holding that a particular condition is sufficiently
serious to find that “[t]he right to be free from such a condition is clearly established.” Collymore,
74 F.4th at 31 (finding it plausible that the right to be free from deliberate indifference to a scalp
condition which caused “chronic and substantial pain” had been clearly established, despite an
“absence of precedents involving scalp infection”).

-- 28 of 50 --

22-2884
Mallet v. NYS Dep’t of Corrections
29
In sum, we REVERSE the district court’s dismissal of the deliberate 1
indifference claims against Dr. Makram and Dr. Stellato; we AFFIRM the dismissal 2
of the deliberate indifference claim against Professor Ritaccio and the dismissal of 3
all seven constitutional claims against New York State, DOCCS, and Annucci 4
acting in his official capacity; and we VACATE the dismissal of the other six 5
constitutional claims against Dr. Makram, Dr. Stellato, and Professor Ritaccio as 6
well as the dismissal of the state common law medical malpractice and negligence 7
claims against all eight defendants. 8
CONCLUSION 9
For the foregoing reasons, the judgment of the District Court is AFFIRMED 10
in part, REVERSED in part, and VACATED in part, and the case is REMANDED 11
for further proceedings consistent with this opinion. 12

-- 29 of 50 --

22-2884
Mallet v. New York State Dept. of Corrections and Community Supervision
MENASHI, Circuit Judge, dissenting:
In today’s decision, the court notes that “the gravamen of
[Antonio] Mallet’s complaint” is that the doctors knew but ignored
the fact that Mallet “was exhibiting classic symptoms of prostate
cancer.” Ante at 14-15. Mallet alleges that he “was showing clear
objective and visible signs of prostate cancer which were subjectively
rejected and ignored by the defendants.” J. App’x 12.1 Mallet seeks
relief for the doctors’ deliberate indifference to his prostate cancer; in
particular, he requests damages for the harm that he suffered from
the cancer going untreated. “[I]n September 2017 the cancer was
present and would have been caught and treated at a minimal stage,”
1 See also J. App’x 13 (“[T]he medical treatment records establish objectively
that plaintiff was in fact suffering from clear symptoms of prostate
cancer.”); id. at 15 (alleging that Mallet’s symptoms were “clinical signs of
prostate cancer”); id. at 16 (“Despite the clear signs of prostate cancer,
including incomplete emptying, frequency and nocturia, the defendants
took no further actions and were deliberately indifferent to plaintiff’s
medical needs and risk of developing advanced prostate cancer.”); id. at 23-
24 (“The facts show clear deliberate indifference to the plaintiff’s medical
situation by disregarding the harm of prostate cancer despite clear
awareness of the symptoms of same.”); id. at 24 (“The defendants had clear
awareness of the risk of prostate cancer when faced with urinary
obstructive symptoms, and such risks should have been obvious or known
to defendants.”); id. at 25 (“The defendants consciously chose an ineffective
and easy treatment plan via the prescription of Flomax to help [Mallet]
urinate without treating the underlying cancerous and death causing
condition that was allowed to expand and metastasize.”); id. at 26 (“When
shown obvious signs of prostate cancer, the defendants deliberately
ignored the signs.”); id. at 26 (“The defendants recklessly chose to ignore
the danger posed by [Mallet’s] urinary blockage and prostate symptoms,
were actually aware that [Mallet] may be suffering from cancer and did not
provide basic medical care.”).

-- 30 of 50 --

2
he alleges. J. App’x 24. The failure to treat the cancer while he was
incarcerated “has resulted in advanced and aggressive prostate
cancer, a radical prostatectomy and a lessened life expectancy.” Id. at
25.
The problem for Mallet is that he knew while he was
incarcerated that he was suffering from these serious symptoms that
the doctors were failing to treat. He nevertheless waited more than
three years—the applicable statute of limitations—to bring this
lawsuit. To be sure, Mallet had not yet been diagnosed with prostate
cancer. But once a plaintiff knows or has reason to know that he has
suffered a compensable injury, “[t]he cause of action accrues even
though the full extent of the injury is not then known or predictable.”
Wallace v. Kato, 549 U.S. 384, 391 (2007) (quoting 1 Calvin W. Corman,
Limitation of Actions § 7.4.1, at 526-27 (1991)). Today’s decision
disregards that rule and allows Mallet to delay the accrual of his cause
of action to the point at which he “became satisfied that he had been
harmed enough.” Id. That approach wrongly puts the statute of
limitations, intended to restrict when a claim may be brought, “in the
sole hands of the party seeking relief.” Id.
The majority evades the normal rule of accrual by insisting—
contrary to the allegations of Mallet’s complaint—that the symptoms
Mallet experienced were “not the symptoms of the serious underlying
condition—cancer—as to which he is suing.” Ante at 16 (emphasis
added). According to the court, Mallet suffered from not one but “two
potentially serious conditions.” Ante at 18 n.8 (emphasis added).
Although the complaint alleges that the symptoms reflected an
underlying cancer, the court now insists that the symptoms instead
reflected “chronic prostatitis”—a diagnosis that appears nowhere in
the complaint—and that the difference between prostatitis and cancer
“is not one of degree … but of kind.” Id.

-- 31 of 50 --

3
The court’s differential diagnosis—performed, remarkably, by
two appellate judges who have never examined Mallet—provides an
explanation for why Mallet might not have known about his
underlying condition while he was incarcerated. But it completely
undermines Mallet’s claims in this case. Mallet’s claims depend on the
allegation that his urinary symptoms were symptoms of prostate cancer
and therefore put the doctors on notice that he had prostate cancer.
See supra note 1. If the symptoms visible to the doctors did not reflect
an underlying cancer but a separate condition—prostatitis—that is
not the subject of this lawsuit, then the complaint does not plausibly
allege that the doctors knew of the risk that Mallet had prostate cancer
and consciously decided not to treat him. Under the majority’s theory,
therefore, Mallet’s complaint should be dismissed for failure to state
a claim.
Because the district court resolved this case on a motion to
dismiss, I would credit the allegations of the complaint that the
symptoms Mallet experienced while incarcerated reflected an
underlying cancer that could have been treated at that time. While
Mallet may not have known in 2017 or 2018 “the full extent of the
injury” he would suffer, Kato, 549 U.S. at 391, I agree with the district
court that the knowledge that he was suffering from a serious medical
condition that the doctors inadequately treated was sufficient for his
claim to accrue. “[D]elay in discovering the extent and cause of the
injury does not prevent a claim from accruing,” and “[i]n this case,
the injury is failure to treat—not the apparent effects of that failure.”
Mallet v. N.Y. State Dep’t of Corr. & Cmty. Supervision, No. 22-CV-1604,
2022 WL 14092499, at *4 (S.D.N.Y. Oct. 24, 2022). I would affirm the
judgment of the district court dismissing the case as barred by the
statute of limitations.

-- 32 of 50 --

4
To avoid doing so, the court decides that Mallet’s claim did not
accrue until he knew specifically that the condition was cancer. That
conclusion conflicts with applicable precedent and with the
allegations of the complaint. Accordingly, I dissent.
I
Mallet alleges that he experienced severe urinary obstructive
symptoms for nearly two years while he was incarcerated. These
included the inability to urinate, pain while urinating, blood in his
urine, and the inability to sleep because of the need to urinate. He
complained about his condition to prison doctors, nurses, and
corrections officers. The doctors allegedly ignored his symptoms and
continued to prescribe the same ineffective medication. Meanwhile,
corrections officers and nurses ridiculed him and told him that “he
would only get the minimum treatment the State will allow.” J. App’x
13. After he was released from prison in January 2019, Mallet sought
independent medical treatment and eventually discovered in May
2021 that he was suffering from advanced prostate cancer. In
February 2022, he sued the doctors who treated him while he was
incarcerated. He claims that the doctors violated his right to be free of
cruel and unusual punishments under the Eighth Amendment by
exhibiting deliberate indifference to his serious medical condition.
A
We must decide whether Mallet’s suit is timely. To do that, we
must determine when his cause of action accrued. The “standard
rule” for accrual is that “[a] limitations period commences when the
plaintiff has a complete and present cause of action.” Green v. Brennan,
578 U.S. 547, 554 (2016) (quoting Graham Cnty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545 U.S. 409, 418
(2005)). A cause of action becomes “complete and present” when “the

-- 33 of 50 --

5
plaintiff can file suit and obtain relief.” Id. (quoting Bay Area Laundry
& Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201
(1997)). In other words, a cause of action accrues “when the plaintiff
knows or has reason to know” that “he is suffering from a wrong for
which damages may be recovered in a civil action.” Eagleston v. Guido,
41 F.3d 865, 871 (2d Cir. 1994) (internal quotation marks omitted). The
Supreme Court has emphasized that once the plaintiff knows or has
reason to know that he has suffered a compensable injury, the cause
of action accrues “even though the full extent of the injury is not then
known or predictable.” Kato, 549 U.S. at 391. If it were otherwise, “the
statute would begin to run only after a plaintiff became satisfied that
he had been harmed enough, placing the supposed statute of repose
in the sole hands of the party seeking relief.” Id.
To establish a violation of the Eighth Amendment “arising out
of inadequate medical care, a prisoner must prove ‘deliberate
indifference to his serious medical needs.’” Chance v. Armstrong, 143
F.3d 698, 702 (2d Cir. 1998) (alteration omitted) (quoting Estelle v.
Gamble, 429 U.S. 97, 104 (1976)). There are two components of a
deliberate indifference claim. First, the plaintiff must show that his
medical condition is, “in objective terms, ‘sufficiently serious.’” Id.
(quoting Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir. 1994)). “Second,
the defendant ‘must act with a sufficiently culpable state of mind.’”
Id. (quoting Hathaway, 37 F.3d at 66). “An official acts with the
requisite deliberate indifference when that official ‘knows of and
disregards an excessive risk to inmate health or safety.’” Id. (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Mallet’s cause of action therefore accrued when he knew or had
reason to know that (1) he was suffering from an objectively serious
medical condition, and (2) the defendants knew of and disregarded
the risk associated with that medical condition.

-- 34 of 50 --

6
B
The allegations of Mallet’s serious symptoms, his repeated
complaints, and the defendants’ responses make it obvious that
Mallet’s cause of action for deliberate indifference accrued while he
was incarcerated. Yet Mallet suggests that he did not know—and
should not have known—that he was suffering from a serious
medical condition during his incarceration. “There was no physical
injury to be compensated at that time,” he argues, “and without any
damages, there was no claim.” Appellant’s Br. 21.
That is incorrect. We have identified factors that are “highly
relevant to the inquiry into whether a given medical condition is a
serious one.” Chance, 143 F.3d at 703. These factors include “the
existence of an injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence of a
medical condition that significantly affects an individual’s daily
activities; or the existence of chronic and substantial pain.” Id. at 702
(alteration omitted) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059-
60 (9th Cir. 1992)); accord Collymore v. Krystal Myers, RN, 74 F.4th 22,
30 (2d Cir. 2023) (noting that a plaintiff might “plausibly allege
‘chronic and substantial pain’ that is ‘important and worthy of
comment or treatment,’ and which ‘significantly affects daily
activities.’”) (quoting Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003)).
There is no question that Mallet’s urinary condition significantly
affected his daily activities; it frequently prevented him from
urinating or sleeping. Nor is it in doubt that Mallet’s condition caused
him chronic pain; he reported that it was painful for him to urinate
and that blood appeared in his urine. Both Mallet and his doctors
considered his condition to be worthy of comment or treatment;
Mallet repeatedly complained about it and the doctors, despite their
alleged neglect, still provided treatment and referrals to specialists.

-- 35 of 50 --

7
All of the factors we have identified as determinative of whether a
medical condition is serious indicate that Mallet’s condition was
objectively serious.
The court’s admission that “Mallet surely knew that he had
some kind of persistent medical problem which the Flomax was not
addressing”—and that the condition “might qualify as serious”—
should end the matter. Ante at 15-16. The court recognizes that Mallet
“surely” knew that he was suffering from a potentially serious
medical condition and that, despite being informed about that
suffering, the doctors failed—perhaps intentionally, as Mallet
alleges—to treat it. But the court nevertheless insists that “it is not
reasonable to infer that he either knew or should have known that he
was suffering from this particular serious medical condition—
cancer—when none of the doctors he saw in prison gave him any
indication that his condition was possibly cancer.” Id. at 15.
In fact, Mallet did not need to know that his underlying
condition was cancer for his claim to accrue as long as he knew that
his condition was serious and that the doctors knew about it. The
seriousness of a medical condition must be assessed “in objective
terms,” Chance, 143 F.3d at 702 (quoting Hathaway, 37 F.3d at 66), and
as courts have uniformly recognized, a medical condition is
objectively serious if an average layperson would consider it to be
serious.2 If a patient suffered from an objectively serious condition—
2 See Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997) (citing cases); see
also Mahan v. Plymouth Cnty. House of Corr., 64 F.3d 14, 18 (1st Cir. 1995);
Brock, 315 F.3d at 162; Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987); Short v. Hartman, 87 F.4th 593, 612 (4th Cir.
2023); Gobert v. Caldwell, 463 F.3d 339, 345 n.12 (5th Cir. 2006); Trozzi v. Lake
County, 29 F.4th 745, 760 (6th Cir. 2022); Sheldon v. Pezley, 49 F.3d 1312, 1316
(8th Cir. 1995); Colwell v. Bannister, 763 F.3d 1060, 1066 (9th Cir. 2014); Riddle

-- 36 of 50 --

8
one that caused chronic pain, interfered significantly with daily
activities, or posed a substantial risk to long-term health—his doctor’s
failure to inform him fully about the seriousness of the condition does
not provide evidence that the patient would not have known he was
suffering from a serious condition. That failure is instead evidence of
the doctor’s deliberate indifference to the patient’s objectively serious
condition. Indeed, Mallet’s theory of liability in this case is that the
doctors’ alleged failure to treat Mallet’s condition as cancer
demonstrates their deliberate indifference to his serious medical
condition. See supra note 1.
Other circuit courts have expressly recognized that a claim
accrues once the plaintiff is aware that he has a serious medical
condition, even if a particular diagnosis occurs later.3 These courts
adhere to the Supreme Court’s instruction that “[t]he cause of action
accrues even though the full extent of the injury is not then known or
v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996); Hill v. Dekalb Reg’l Youth
Det. Ctr., 40 F.3d 1176, 1187 (11th Cir. 1994), overruled on other grounds by
Hope v. Pelzer, 536 U.S. 730 (2002).
3 See, e.g., Alexis v. Connors, No. 23-2502, 2024 WL 3534480, at *3 (3d Cir.
July 25, 2024) (rejecting a plaintiff’s argument that “his Eighth Amendment
claim did not accrue until December 8, 2017, when he received his thoracic
surgery report” because “the statute of limitations accrues when a party
reasonably knew or should have known of the injury, not from the time the
full extent of the injury becomes known”); Allen v. Dekalb Cnty. Jail’s Med.
Providers/Priv. Contractors, 632 F. App’x 593, 594 (11th Cir. 2016) (rejecting a
plaintiff’s argument that “the statute of limitations on his claim did not
begin to run until August 2014 when he was diagnosed and learned that
syphilis had caused permanent eye trauma” because the plaintiff “was
aware of his eye injury, and was aware that prison officials did not treat his
vision problems after his examination in 2006” and the plaintiff “did not
need to be aware of the extent of his injury for the statute of limitations to
begin running”).

-- 37 of 50 --

9
predictable.” Kato, 549 U.S. at 391. Today’s decision rejects that
instruction and disagrees with those other courts by allowing Mallet
to delay the accrual of his cause of action until the point at which he
learned that his condition was not merely serious but was specifically
prostate cancer.
The court attempts to mask its disagreement with the Supreme
Court and other appellate courts by ignoring the allegations of the
complaint and developing its own theory that Mallet suffered from
not one but “two potentially serious conditions.” Ante at 18 n.8. The
court diagnoses the first condition as “chronic prostatitis,” a disease
that Mallet never mentions in his complaint or in his arguments on
appeal. Id. Neither Mallet nor the court argues that the doctors
inadequately treated “Mallet’s prostatitis.” Id. The second condition
is prostate cancer, the “serious condition for which Mallet alleges he
received constitutionally inadequate treatment.” Id. The court
emphasizes that the urinary symptoms described in the complaint
were “not the symptoms of the serious underlying condition—
cancer—as to which he is suing.” Id. at 16. As the court reads the
complaint, therefore, Mallet complained about symptoms of
prostatitis and the doctors treated that condition. But, at the same
time, Mallet may have had the separate condition of cancer that was
unrelated to his urinary symptoms and that allegedly went untreated.
The court’s distinction between prostatitis and cancer fatally
undermines the theory of liability in the complaint, according to
which the urinary symptoms were “signs of prostate cancer” that the
doctors should have recognized, J. App’x 16, rather than a different
condition requiring a separate course of treatment. If these were two
distinct conditions—and the doctors adequately treated the
prostatitis that was evident but did not treat the separate unseen
cancer—then there would no longer be a factual basis for concluding

-- 38 of 50 --

10
that the doctors were aware of an underlying cancer that they were
failing to treat. That means Mallet has failed to state a claim for
deliberate indifference.
The court wants Mallet to have it both ways: there were two
conditions for the purpose of accrual, but with respect to the merits of
his deliberate indifference claim there was only one condition that
developed into cancer. But that is not possible. When the “pleadings
are internally inconsistent, a court is neither obligated to reconcile nor
accept the contradictory allegations in the pleadings as true in
deciding a motion to dismiss.” Pierce v. Fordham Univ., No. 15-CV-
4589, 2016 WL 3093994, at *2 (S.D.N.Y. June 1, 2016) (quoting
Nationwide Mut. Ins. Co. v. Morning Sun Bus Co., No. 10-CV-1777, 2011
WL 381612, at *6 (E.D.N.Y. Feb. 2, 2011)), aff’d, 692 F. App’x 644 (2d
Cir. 2017). That is because “[c]ontradictory allegations are not
plausible.” De Ford v. Koutoulas, No. 22-CV-652, 2024 WL 1346942, at
*12 (M.D. Fla. Mar. 29, 2024).4
The “one condition” theory described in the complaint fails to
state a claim because it cannot overcome the statute of limitations. The
“two conditions” theory described in the court’s opinion fails to state
a claim because it would mean that Mallet has not plausibly alleged
that the prison doctors knew of and consciously disregarded the risk
of cancer. Either way, the complaint was properly dismissed.
4 See Salahuddin v. Jones, 992 F.2d 447, 449 (2d Cir. 1993) (affirming the
dismissal of claims based on “conclusory and inconsistent allegations”);
Savitsky v. Mazzella, 210 F. App’x 71, 72 (2d Cir. 2006) (concluding that “it
would have been futile” to permit leave to amend because the “allegations
were either conclusory or contradictory”).

-- 39 of 50 --

11
C
Even taken on its own terms, the court’s theory makes little
sense. “[A]lthough Mallet surely knew that he had some kind of
persistent medical problem which the Flomax was not addressing,”
the court explains, “it is not reasonable to infer that he either knew or
should have known that he was suffering from this particular serious
medical condition—cancer—when none of the doctors he saw in
prison gave him any indication that his condition was possibly
cancer.” Ante at 15. According to the court, the persistent medical
problem that the Flomax sought to address was not cancer but
prostatitis—a condition that reflects a “difference … of kind” from the
cancer he would later develop. Id. at 18 n.8. So it is not clear why the
doctors would have been expected to inform Mallet that this separate
condition “was possibly cancer” when the court believes it was not.
Regardless, given the allegations of the complaint, it is
implausible that Mallet relied on the doctors’ assessment of his
condition (or conditions). Mallet alleges that nurses and corrections
officers told him that “he should not expect good treatment in
prison,” that “not everyone makes it out alive,” and that “he would
only get the minimum treatment the State will allow.” J. App’x 13.
Mallet was so concerned about his medical treatment in prison that
he had his attorney write to the commissioner of the DOCCS to
express “concerns with the Health Services staff at Woodbourne
Correctional Facility.” Id. at 70. It is not possible to infer from these
allegations that Mallet trusted the assessment of the prison medical
staff.
If a reasonable patient could have believed—based on the
doctors’ alleged silence about the possibility of cancer—that Mallet’s
condition was not sufficiently serious for a lawsuit, then it would

-- 40 of 50 --

12
follow that the condition was not objectively serious and the doctors
were not deliberately indifferent. “A medical need is serious … if the
average person would surely deem it to be one that required
professional treatment.” Trozzi, 29 F.4th at 760 (emphasis added)
(alteration omitted) (quoting Gunther v. Castineta, 561 F. App’x 497,
500 (6th Cir. 2014)); accord Short, 87 F.4th at 612 (explaining that a
medical condition qualifies as “objectively serious” when “even a lay
person would easily recognize the necessity for a doctor’s attention”)
(quoting Scinto v. Stansberry, 841 F.3d 219, 225 (4th Cir. 2016)). The
allegations in this case describe symptoms—chronic pain, inability to
urinate, nocturia, blood in one’s urine—that an average person would
consider serious enough to require treatment. If the average person
could believe that these symptoms did not reflect a serious condition
that required additional treatment—or if, as the court would have it,
these symptoms related to a separate condition that Mallet does not
allege was inadequately treated—then there was no objectively
serious condition during Mallet’s incarceration that could form the
basis of a deliberate indifference claim.
The court wants to rely on the doctors’ responses to Mallet’s
condition for two contradictory purposes: both to provide evidence
that the seriousness of Mallet’s condition was hidden from him and
also to provide evidence of the doctors’ deliberate indifference to
Mallet’s objectively serious condition. See ante at 15-16. To do so, the
court reaches back more than half a century to an old malpractice case
in which our court said there was no clear error in the determination
of the district court that the plaintiff’s claim had not accrued while he
was “[g]iving full faith to his doctor’s confident prognosis” that he
“needn’t worry” about his persistent “acute discomfort.” Toal v.
United States, 438 F.2d 222, 225 (2d Cir. 1971). In the court’s view,

-- 41 of 50 --

13
Mallet similarly relied on his doctors’ silence about whether his
admittedly serious condition could involve cancer.
Put aside for the moment the obvious distinction between a
“confident prognosis” that there was nothing to worry about, on the
one hand, and mere silence regarding the possible scope of a clearly
serious condition that required treatment, on the other. As the court
acknowledges, the Supreme Court has said that the reasoning of Toal
was wrong. In United States v. Kubrick, the Supreme Court explained
that the plaintiff’s medical malpractice claim accrued when a
reasonable person in the plaintiff’s position would have “made
inquiry among doctors with average training and experience in such
matters” and “discovered that he probably had a good cause of
action.” 444 U.S. 111, 123 (1979). The court nevertheless announces
that it will adopt “Toal’s accrual standard in the context of Eighth
Amendment claims” because “unlike the plaintiff in Kubrick, an
incarcerated person is not necessarily able to make her or his own
independent inquiries about the quality of care she or he receives in
prison.” Ante at 15 n.4.
Even if that were a viable distinction, it simply would not apply
in this case. Mallet was transferred from Woodbourne to Queensboro
Correctional Facility for the last four months of his incarceration and
there was examined by a Dr. Williams, who “read his prior medical
records and charts” and told him that “hopefully [he would] get
better treatment” after his release. J. App’x 17. Thus, Mallet did
consult a doctor who was independent of Drs. Makram and Stellato,
and he alleges that the independent doctor told him that the treatment
of the other doctors had been inadequate. Even under the court’s
novel accrual standard—based on a 1971 malpractice case that no
longer governs malpractice cases but that the court now adopts for
Eighth Amendment cases—Mallet’s deliberate indifference claim

-- 42 of 50 --

14
against Makram and Stellato would have accrued at the latest when
he consulted an independent physician at Queensboro. That was still
three years before he filed this lawsuit.
D
Despite its acrobatics, today’s opinion still cannot tell us when
Mallet’s claim accrued. The court rejects the approach of two other
circuits that would put the accrual date at the time of the cancer
diagnosis. See ante at 17 n.6 (disagreeing with Devbrow v. Kalu, 705
F.3d 765 (7th Cir. 2013), and Lawson v. Okmulgee Cnty. Crim. Just. Auth.,
726 F. App’x 685 (10th Cir. 2018)). In doing so, the court (correctly)
decides that Mallet did not need to receive a formal diagnosis for his
claim to accrue. But the court also (incorrectly) decides that it was not
enough for Mallet to know that he was suffering from chronic and
painful symptoms to which the prison doctors allegedly responded
with indifference or contempt. In light of these decisions, the court
can say only that Mallet’s cause of action accrued “at some point”
between these moments, and to identify that point the district court
must scrutinize not the objective features of Mallet’s condition but
“what exactly Mallet’s post-release providers told him and when they
told him.” Id. at 17-18. So perhaps a jury will need to decide how
alarmed Mallet should have been when (1) he was referred to a
urologist in July 2019, (2) a test showed an elevated PSA level in
August 2020, (3) a test showed a reduced PSA level in October 2020,
(4) a test showed an increased PSA level again in February 2021, or
(5) a biopsy was ordered in April 2021. See J. App’x 17-18.
The court speculates that perhaps “Mallet neither knew nor
should have known that his condition was not only serious but
potentially cancer until, say, August 2020, when the first PSA test was
administered.” Ante at 17. At that time, after he “was prescribed a new

-- 43 of 50 --

15
medication to shrink his prostate,” Mallet “was presumably put on
notice that he had this specific serious medical condition related to his
prostate issues.” Id. at 16-17. But there is no principled reason to
conclude that Mallet’s claim accrued with the PSA test in August 2020
rather than, say, with the cystoscopy in September 2017. The
cystoscopy revealed “urinary retention, urinary obstructive
symptoms and mild congestion of the prostatic lobe, posterior urethra
and bladder neck, [and] bladder trabeculation +1.” J. App’x 14. Mallet
alleges that these were unmistakable signs of prostate cancer. See id.
Why was the PSA test sufficiently serious when the cystoscopy was
not? Perhaps the seriousness of these signals depends on the court’s
distinction between prostatitis and prostate cancer; because the
complaint does not allege such a distinction, however, there is no
reason to expect that the evidence will support it.
Of course, I agree with the court on how to articulate the
standard. Mallet’s claim accrued when he “knew or had reason to
know” two facts: “that he suffered from an objectively serious
medical condition” and “that Defendants-Appellees failed to provide
adequate treatment because they consciously disregarded a
substantial risk to his health and safety.” Ante at 13. Taking the
allegations of the complaint as true, these requirements were met
while he was incarcerated. Because that was “more than three years
before he commenced this lawsuit,” the district court correctly
concluded that “the Section 1983 claims must be dismissed” as time-
barred by the statute of limitations. Mallet, 2022 WL 14092499, at *5
(capitalization omitted).
II
If the court were correct that Mallet did not know—and should
not have known—that he was suffering from the relevant serious

-- 44 of 50 --

16
medical condition while he was incarcerated, his claim still could not
proceed. The seriousness of a medical condition must be assessed “in
objective terms.” Chance, 143 F.3d at 702; see also Trozzi, 29 F.4th at 760;
Short, 87 F.4th at 612; Gutierrez, 111 F.3d at 1373. The court accepts the
indisputable fact that Mallet knew he had a “persistent medical
problem” that “might qualify as serious” while he was incarcerated.
Ante at 15-16. That condition might have been a proper basis for a
deliberate indifference claim had Mallet filed suit within the statute
of limitations. Mallet complained “repeated[ly]” about his “urinary
obstructive symptoms” and “continu[ed] to ask for medical
treatment” despite being discouraged and ridiculed by prison staff.
J. App’x 13.
But the court insists that this serious medical condition was not
“the serious condition for which Mallet alleges he received
constitutionally inadequate treatment.” Ante at 18 n.8. “[T]he
difference between” the two conditions, according to the court, “is not
one of degree … but of kind.” Id. Mallet’s urinary symptoms did not
indicate the presence of cancer because those symptoms were “not the
symptoms of the serious underlying condition—cancer—as to which
he is suing.” Id. at 16. If the court’s account is accurate, then the
doctors cannot be liable for deliberate indifference. To state a
deliberate indifference claim, Mallet must plausibly allege that the
doctors knew of a serious risk to his health and consciously
disregarded that risk.
If the symptoms that they treated were not symptoms of cancer,
then the doctors could not have known of the risk that Mallet had
cancer. Perhaps it would have been a better practice to conduct a PSA
test to be sure. The failure to conduct such a test, however, establishes
at most that the doctors were negligent or committed malpractice. The
Supreme Court has emphasized repeatedly that mere negligence or

-- 45 of 50 --

17
malpractice does not amount to deliberate indifference. See Estelle, 429
U.S. at 106 (“[A] complaint that a physician has been negligent in
diagnosing or treating a medical condition does not state a valid claim
of medical mistreatment under the Eighth Amendment. Medical
malpractice does not become a constitutional violation merely
because the victim is a prisoner.”); Farmer, 511 U.S. at 835
(“[D]eliberate indifference entails something more than mere
negligence.”); Whitley v. Albers, 475 U.S. 312, 319 (1986) (“To be cruel
and unusual punishment, conduct that does not purport to be
punishment at all must involve more than ordinary lack of due care
for the prisoner’s interests or safety. … It is obduracy and
wantonness, not inadvertence or error in good faith, that characterize
the conduct prohibited by the Cruel and Unusual Punishments
Clause.”). Unless the urinary symptoms of which Mallet complained
indicated that he had cancer—a proposition that the court has now
rejected—nothing in Mallet’s complaint suggests that the doctors
“act[ed] with a sufficiently culpable state of mind” to support a
deliberate indifference claim rather than that they simply failed to
check for a possibility they should have explored given their medical
training. Chance, 143 F.3d at 702 (quoting Hathaway, 37 F.3d at 66).
The Supreme Court has rejected the proposition that an official
is deliberately indifferent if he “acts or … fails to act in the face of an
unjustifiably high risk of harm that is either known or so obvious that
it should be known.” Farmer, 511 U.S. at 836 (emphasis added). Instead,
“the official must both be aware of facts from which the inference
could be drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. at 837 (emphasis added). 5 “[A]n
5 The requirement that the official actually infer the risk of serious harm
distinguishes deliberate indifference, which resembles recklessness in the
criminal-law context, from mere negligence. See Farmer, 511 U.S. at 836-37

-- 46 of 50 --

18
official’s failure to alleviate a significant risk that he should have
perceived but did not, while no cause for commendation, cannot
under [the Supreme Court’s] cases be condemned as the infliction of
punishment” in violation of the Eighth Amendment. Farmer, 511 U.S.
at 838. In spite of this case law, the court reasons that it should have
been obvious to the doctors that Mallet was exhibiting signs of
prostate cancer and needed a PSA test—despite the fact that the court
itself concludes that the urinary symptoms of which he complained
were not signs of prostate cancer. Without factual material in the
complaint to suggest that the doctors actually realized that Mallet faced
a substantial risk of prostate cancer, Mallet’s deliberate indifference
claim cannot proceed.
The court relies on a summary order that concluded that a
particular evidentiary record was “sufficient to avoid summary
judgment.” Hart v. Blanchette, 149 F. App’x 45, 47 (2d Cir. 2005). The
order explained that “the determination of the difference between
negligence and deliberate indifference is, in the circumstances of this
case, one for a trier of fact to make.” Id. (emphasis added). The court
omits the emphasized portion of that passage, see ante at 24, and by
doing so elides the principle that the determination is not always for
the trier of fact. Before such a question proceeds past a motion to
dismiss, the plaintiff must “plead[] factual content that allows the
court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). If
the complaint “pleads facts that are merely consistent with a
(“[A]cting or failing to act with deliberate indifference to a substantial risk
of serious harm to a prisoner is the equivalent of recklessly disregarding
that risk. … The criminal law, however, generally permits a finding of
recklessness only when a person disregards a risk of harm of which he is
aware.”) (emphasis added).

-- 47 of 50 --

19
defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.” Id. (internal quotation marks
omitted).
Given the court’s conclusion that Mallet’s outward symptoms
were unrelated to cancer, Mallet offers no factual allegations that
support the inference that the doctors—especially Stellato, who
treated Mallet only once, in September 2017—were deliberately
indifferent rather than merely negligent. Because “the post hoc
medical assessments of judges cannot compensate for a plaintiff’s
failure to plead facts sufficient to evince a conscious disregard of a
substantial risk of serious harm,” Darby v. Greenman, 14 F.4th 124, 129
n.3 (2d Cir. 2021) (internal quotation marks and alteration omitted), if
the court is correct that the claim accrued on the basis of the
underlying cancer rather than the outward symptoms of prostatitis,
then Mallet fails to state a claim for deliberate indifference.
On remand, Mallet will need to identify evidence that the
doctors actually knew of the risk that he had cancer and consciously
decided not to treat it. Because the court has now decided that
Mallet’s urinary symptoms were not symptoms of cancer,6 it seems
unlikely that he can make that showing.
III
In any event, the defendants are entitled to qualified immunity
in this case. “[Q]ualified immunity protects government officials
‘from liability for civil damages insofar as their conduct does not
6 See United States v. Tenzer, 213 F.3d 34, 40 (2d Cir. 2000) (“When an
appellate court has once decided an issue, the trial court, at a later stage of
the litigation, is under a duty to follow the appellate court’s ruling on that
issue.”) (quoting United States v. Cirami, 563 F.2d 26, 32 (2d Cir. 1977)); see
also United States v. Quintieri, 306 F.3d 1217, 1225 (2d Cir. 2002).

-- 48 of 50 --

20
violate clearly established statutory or constitutional rights of which
a reasonable person would have known.’” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
The doctrine “gives government officials breathing room to make
reasonable but mistaken judgments.” Ashcroft v. al-Kidd, 563 U.S. 731,
743 (2011). The Supreme Court has instructed us that “[t]he
dispositive question is ‘whether the violative nature of particular
conduct is clearly established.’” Mullenix v. Luna, 577 U.S. 7, 12 (2015)
(quoting Ashcroft, 563 U.S. at 742).
When the defendants treated Mallet, it was not clearly
established that a doctor could be deliberately indifferent if he
adequately treated the outward manifestations of one medical
condition and yet failed to identify a second condition that was not
responsible for the symptoms and of which the patient was not—and
should not have been—aware. It was not clearly established that
negligently failing to order a PSA test for a patient being treated for
the separate condition of prostatitis violated the Eighth Amendment.
Because the liability of the defendants in this case depends on these
newly announced principles, qualified immunity prevents the
retroactive application of the principles to impose liability here.
* * *
The court concludes that Mallet’s lawsuit was timely filed
because even though he knew that he suffered from a serious medical
condition while incarcerated, he did not know that the specific
condition was prostate cancer. That conclusion contradicts the
established principle that once a plaintiff knows or has reason to
know that he has suffered a compensable injury, “[t]he cause of action
accrues even though the full extent of the injury is not then known or
predictable.” Kato, 549 U.S. at 391. And it relies on an internally

-- 49 of 50 --

21
contradictory reading of the complaint according to which the prison
doctors’ statements can simultaneously reflect deliberate indifference
to an objectively serious condition and also indicate that Mallet had
no reason to know that he was suffering from that serious condition.
I would instead credit the allegations of the complaint that
Mallet’s urinary symptoms reflected the underlying condition of
cancer. Because Mallet knew he was suffering from those symptoms
more than three years before he filed this lawsuit, I agree with the
district court that the statute of limitations requires dismissal of
Mallet’s suit. But if, despite its confusion, today’s opinion might have
now established the novel principles on which it relies, those
principles surely were not clearly established when Mallet received
treatment from the defendants. And that would entitle the defendants
to qualified immunity and require us to affirm the judgment of the
district court. Accordingly, I dissent.

-- 50 of 50 --