After a jury trial almost nine years ago in state court in Manhattan, Jose Shomo was convicted of second-degree murder. He had attempted to convince the jury that at the time of the deadly shooting he was physically incapable of holding or firing a handgun and thus could not have been the killer. Obviously, the jury rejected that claim and Shomo was sentenced to concurrent terms of 25 years to life. The conviction was affirmed on appeal.
After four years in prison, Shomo sued the City of New York, its Department of Corrections and several doctors alleging that during all that time he could not use his hands and therefore should have received assistance with activities of daily living, been transferred to specialized infirmary housing and received various treatments. If there was in fact a failure to give him treatment he needed, then there could be a viable claim for medical indifference under 42 U.S.C. Section 1983. Shomo's problem (in addition to his lifelong jail terms) was that he waited past the three year statute of limitations to start his pro se lawsuit. So, the defendants sought to have the case dismissed.
This week, though, in Shomo v. City of New York, a two judge panel of the U.S. Court of Appeals for the Second Circuit (the third judge was to have been now Supreme Court Justice Sotomayor) affirmed the lower court's finding that the case may proceed. The appeals court noted that when a plaintiff can show an ongoing policy of deliberate indifference to his serious medical needs and some acts in furtherance of the policy within the relevant statute of limitations period then he may pursue his lawsuit even though it was commenced outside the limitations period.
Chief Judge Dennis Jacobs wrote a separate opinion agreeing with the holding but emphasizing that Shomo's claims would be deemed frivolous and suitable for dismissal under any standard but the (lenient) one applied to pro se litigants. He added his belief that Shomo's claim that he needed medical attention was without merit since the jury in the criminal case already found that Shomo held and used a handgun when he committed murder and "... a person able to shoot someone to death has sufficient use of his hands to get by."