Opinion
Civil Action 18 Civ. 10230 (PAC) (SLC)
08-30-2021
FELIX NKANSAH, Plaintiff, v. UNITED STATES OF AMERICA and JOHN DOES # 1-36, individually and in their official capacities, Defendants.
THE HONORABLE PAULA. CROTTY, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
Sarah L. Cave United States Magistrate Judge
I. INTRODUCTION
On November 9, 2018, Plaintiff Felix Nkansah ("Nkansah") commenced this action against the United States of America (the "Government") under the United States Constitution and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, and against 36 John Doe defendants (the "Doe Defendants") under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), asserting tort claims and constitutional violations arising in New York and Alabama between August 2015 and March 2016 while he was in federal custody. (ECF No. 1 (the "Complaint")).
Before the Court is Nkansah's motion for leave to file a Proposed Amended Complaint (the "PAC"). (ECF No. 64 (the "Motion")). Nkansah seeks to substitute the Doe Defendants with 37 individuals (the "Individuals") identified in the Government's October 22, 2020 initial disclosures (the "Initial Disclosures"). (Id.; ECF No. 65-2). The Government opposes the Motion on grounds of futility and prejudice. (ECF No. 67).
For the reasons set forth below, I respectfully recommend that the Motion be DENIED.
II. BACKGROUND
The allegations of the Complaint and the PAC are presumed true for purposes of the Motion. See Fin. Guar. Ins. Co. v. Putnam Advisory Co., 783 F.3d 395, 398 (2d Cir. 2015); Charter Commc'ns, Inc. v. Loc. Union No. 3, 338 F.Supp.3d 242, 248 n.3 (S.D.N.Y. 2018).
On the morning of December 17, 2014, Nkansah, a citizen of Ghana, was arrested at his residence in East Orange, New Jersey (the "Arrest"). (ECF No. 1 ¶¶ 2, 37). Following the Arrest, Nkansah was detained at the Hudson County Correctional Facility ("HCCF") in Kearny, New Jersey. (Id. ¶ 37). On arriving at HCCF, he filed a complaint alleging that several unidentified Immigration and Customs Enforcement ("ICE") agents involved in the Arrest had removed, but failed to return, personal property from his residence. (Id.) On August 10, 2015, while still at HCCF, Nkansah filed an additional complaint alleging that an officer had denied him phone calls to legal counsel, and that "funds sent by an 'NGO' for his benefit had not been distributed to him." Id ¶ 38). The officer who received Nkansah's complaint "threatened to transfer him from the [HCCF] to a faraway location where his family would be unable to contact him." (Id.) On August 12, 2015, Nkansah reported the threat "to other ICE officers present at his unit and made a call to the ICE 'Hot Line.'" (Id.)
Five days later, on August 17, 2015, unidentified ICE agents transferred Nkansah from HCCF to a detention facility at 201 Var¡ck Street in New York ("Var¡ck Street"). (ECF No. 1 ¶ 39). Nkansah alleges that he was moved without warning and in retaliation for his complaints, and that his relocation fulfilled the prior threat to move him to a more distant facility. (Id.) On arrival at Var¡ck Street, Nkansah was placed alone in a cell, where four or five ICE agents or guards struck him and pushed him to the floor, and one forcefully pressed their knee into Nkansah's back. (Id. ¶¶ 41-42). Nkansah alleges he was then "shackled by his hands and feet and lifted by a chain," which caused him to bleed and suffer nerve damage. (Id ¶¶ 43-44). Nkansah further alleges that the agents, ignoring his protests, then placed a hood over his head and transported him in a van to Newark Airport. (Id ¶¶ 43, 45). Though Nkansah "passed out" during transport and remained unconscious for a majority of the flight, the agents "did nothing to revive him," and refused to remove the hood from his head when asked. (Id ¶ 45). On arriving in Louisiana, the agents removed Nkansah's hood, but he was in such severe pain that he needed to be removed from the airplane in a wheelchair. (Id ¶ 47).
On August 18, 2015, Nkansah was transferred to Etowah County Detention Center ("EDC") in Gadsden, Alabama, and, the next day, on August 19, 2015, he was sent to Riverview Regional Medical Center ("Riverview"), also in Gadsden. (ECF No. 1 ¶¶ 46, 48). While at Riverview, Nkansah was diagnosed with malaise, anorexia, and depression, but, despite a reported loss of feeling in his hands and feet, Nkansah's nerve damage complaints were not treated. (Id. ¶¶ 48-49). From August 19, 2015 until "March 2016," Nkansah was detained at EDC. Id ¶¶ 51, 144). During this time, his nerve injuries remained untreated, despite repeated requests for medical evaluation. Id ¶ 51).
B. Procedural History
On November 9, 2018, Nkansah filed the Complaint. (ECF No. 1). Against the Government, he asserted various tort claims and constitutional violations, specifically: (i) assault; (ii¡) battery; (iii) intentional infliction of emotional distress; (iv) excessive force; (v) negligent infliction of emotional distress; (vi) false arrest and imprisonment; (vii) prima facie tort; (viii) medical negligence; (ix) negligent hiring, training, and retention; (x) negligence; (xi) "negligent guard" violations; and (x¡¡) negligent handling of bailment. (id ¶¶ 61-143). Against the Doe Defendants, Nkansah asserted four Bivens claims based on alleged constitutional violations, specifically: (i) false imprisonment; (ii) cruel and unusual punishment; (iii) failure to intervene; and (iv) deliberate indifference. (Id. ¶¶ 144-85).
On August 23, 2019, the Government moved to dismiss Nkansah's excessive force, false arrest and imprisonment, medical negligence, and negligent handling of bailment claims (the "MTD"). (ECF No. 21). The Government also argued that, although "[n]o individual defendants [had] been named" and that the Government did "not have authorization to represent the individual defendants," Nkansah's Bivens claims were time-barred and should be dismissed. (Id. at 12 n.2). On March 24, 2020, the Honorable Paul A. Crotty granted the MTD as to Nkansah's excessive force, false arrest and imprisonment, and negligent handling of bailment claims, but denied it as to Nkansah's medical negligence claim (the "MTD Order"). (ECF No. 36). Judge Crotty "decline[d]" the Government's invitation to dismiss at that stage Nkansah's Bivens claims against the Doe Defendants. (kL at 5 n.2). On May 12, 2020, the Government answered the Complaint. (ECF No. 41).
Discovery commenced on September 16, 2020, when Judge Crotty entered the initial case management plan and scheduling order. (ECF No. 47). That same day, Judge Crotty referred this matter to me for general pretrial ("GPT") purposes, including non-dispositive pretrial motions, pursuant to a 120-day Order of Reference. (ECF No. 46). On October 22, 2020, the Government served its Initial Disclosures, in which it identified 40 people, including the 37 Individuals, "likely to have discoverable information that the Government may use to support its claims or defenses." (ECF No. 65-2 at 2-10). Those people included ICE officers in New York who were involved in Nkansah's detention and transportation from Var¡ck Street to EDC, and EDC medical personnel "who had an encounter with [Nkansah]." (id at 2-3, 5-8)
On March 30, 2021, Nkansah requested a pre-motion conference before Judge Crotty in anticipation of moving "to amend the Complaint to substitute the 'John Does' with the actual names of the individuals listed in Defendant's Initial Disclosures." (ECF No. 55). On April 7, 2021, Judge Crotty issued an Amended Order of Reference that extended the Court's GPT referral. (ECF No. 56). On April 8, 2021, the Court set a briefing schedule for the Motion. (ECF No. 57).
C. The Motion
On May 26, 2021, Nkansah filed the Motion, seeking to substitute the Doe Defendants with the Individuals (the "Amendment"). (ECF No. 64). In his memorandum of law accompanying the Motion, Nkansah makes clear that he "does not seek to add new claims to his proposed Amended Complaint. Rather, the claims on [sic] Plaintiff's proposed Amended Complaint remain the same as the claims in the Plaintiff's initial Complaint except as to those now dismissed pursuant to [the MTD] Order." (ECF No. 66 at 17; see Id. at 12 ("Plaintiff does not as a matter of fact, allege completely different or new claims against the named defendants. Rather, Plaintiff is reemphasizing the same claims that are contained in Plaintiff's original pleadings while including and/or stating the names of the formerly unnamed Defendant ICE agents and medical personnel as specific Defendants.")). In particular, the PAC contains the following three I3jyens claims against the Individuals: (i) a claim for cruel and unusual punishment against nine of the Individuals, identified in the Government's Initial Disclosures as ICE officers in New York who were "involved in Plaintiff's detention and transport from the Varick Street detention facility to [EDC]"; (ii) a deliberate indifference claim against 18 of the Individuals, identified in the Government's Initial Disclosures as "[EDC] medical personnel who had an encounter with Plaintiff"; and (iii) a failure-to-intervene claim against seven of the Individuals, identified in the Government's Initial Disclosures as ICE officers or medical providers who assisted with or participated in Nkansah's transport from Var¡ck Street to EDC. (ECF Nos. 65-1 ¶¶ 158-85; 65-2 at 3-10).
The Court notes that Nkansah unsuccessfully attempted to file the Motion on May 10, 2021, which was his deadline to do so. (ECF Nos. 57, 58). The May 26, 2021 filing was the successful attempt.
Although the Complaint included four Bivens claims, the PAC omits the claim premised on "false imprisonment" (ECF No. 1 ¶¶ 144-57), apparently in recognition of Judge Crotty's dismissal of Nkansah's analogous claim against the Government (ECF No. 13-14). The Court also notes that, of the 37 Individuals named in the PAC, only 34 are referenced within Nkansah's allegations relating to his Bivens claims. (ECF No. 65-1 ¶¶ 158-85). Three of the Individuals-Bryan Pitman, Tonita Dupard North, and William Ballow- do not appear in this section of the PAC. (Id.)
In support of the Motion, Nkansah advances three arguments. First, implicitly conceding that his Bivens claims would be untimely if filed now, he argues that the Amendment "relates back" to the filing of the Complaint. (ECF No. 66 at 11-13). While he claims to have "filed his Complaint timely before the expiration of the statute of limitations," Nkansah only references the two-year limitations period applicable to FTCA claims and does not address the statute of limitations applicable to his Bivens claims. (id at 5, 11). Second, Nkansah argues that the Government cannot demonstrate undue delay or bad faith on his part in seeking leave to amend, and that his use of the Doe Defendants in the Complaint "was consistent with New York Fictitious Name Pleading standards" under Section 1024 of the New York Civil Practice Law and Rules ("CPLR"). (id at 13-16). Third, Nkansah argues that the Government cannot show that granting leave to amend would result in prejudice. (id at 16-18).
On May 27, 2021, the Government filed its opposition to the Motion. (ECF No. 67). The Government argues that the Amendment is futile because, even if they relate back, Nkansah's Bivens claims are time-barred because he filed the original Complaint after the statutes of limitations for claims arising in New York and Alabama had expired. (Id. at 5-7). The Government also argues that the Amendment is futile because, even if Nkansah had filed the Complaint within the applicable limitations periods, his Bivens claims do not relate back and, in any event, lack specific factual support such that the PAC would not survive dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 67 at 7-10). Finally, the Government argues that granting the Motion would unduly prejudice the Individuals, who, the Government claims, "will need to retain counsel to file dispositive motions" if the Court grants leave to amend. (ECF No. 67 at 9-10).
On June 14, 2021, Nkansah filed his reply (the "Reply"). (ECF No. 68). In the Reply, Nkansah does not argue that he filed the Complaint within the limitations period for his Bivens claims. Instead, he argues that the Amendment is not futile because "Rule 15(c) permits time-barred claims" where a prospective defendant had "notice of the claim prior to the filing of the complaint" and "knew or should have known that it was not named in the complaint solely because the plaintiff had inaccurate or incomplete information concerning its identity." (ECF No. 68 at 2-9). Specifically, Nkansah argues that the Individuals received "notice" of his claims on August 9, 2017, when he filed a Standard Form 95 ("SF-95") complaint form with ICE, which, he claims, shares an "identity of interest" with the Individuals, and that such notice, combined with his lack of knowledge as to the Individuals' identities, excuses his failure to file the original Complaint within the limitations period for Bivens claims. (Id. at 8-9). As discussed in more detail below, Nkansah premises this argument on a misunderstanding of the law, claiming that "[t]he Supreme Court in Krupski v. Costa Crociere S.p.A[, ] 560 U.S. 538 (2010) addressed the issue of whether a Plaintiff may amend his complaint to add the names of previously fictious-named John Doe defendants where the original complaint was filed beyond the statute of limitations and held that it could." (id at 2). Nkansah also argues that his Bivens claims satisfy Rule 12's pleading standard. (ECF No. 68 at 9-13). Specifically, he argues that the "Var¡ck Street ICE officers" he seeks to add "were all personally involved in his detention and transportation," and that the EDC personnel he seeks to add "all had an 'encounter' with him" during his detention at EDC. Id at 10-13).
III. DISCUSSION
A. Legal Standards
1. Leave to amend
Federal Rule of Civil Procedure 15(a) provides that a court "should freely give leave" to amend a pleading "when justice so requires." Fed.R.Civ.P. 15(a)(2). The Rule encourages courts to determine claims "on the merits" rather than disposing of claims or defenses based on "mere technicalities." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000) (internal citations omitted) ("Rule [15] reflects two of the most important principles behind the Federal Rules: pleadings are to serve the limited role of providing the opposing party with notice of the claim or defense to be litigated, and 'mere technicalities' should not prevent cases from being decided on the merits." (internal citations omitted)).
Courts in this District have held that denial of a motion to amend is appropriate where "(1)the movant is guilty of undue delay, (2) the movant has acted in bad faith, (3) the amendment would be futile, or (4) the amendment would prejudice the opposing party." Procter & Gamble Co. v. Hello Prods., LLC, No. 14 C¡v. 649 (VM) (RLE), 2015 WL 2408523, at *l (S.D.N.Y. May 20, 2015) (citing State Tchrs. Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d C¡r. 1981)); see also Williams v. Citigroup Inc., 659 F.3d 208, 213-14 (2d C¡r. 2011) (per curiam) (reiterating Supreme Court precedent that proper grounds for denying a motion to amend include "undue delay, bad faith or dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment") (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).
"[I]t is settled that a motion to amend should be denied on grounds of futility where it would have to be dismissed on statute of limitations grounds." Dilworth v. Goldberg, No. 10 Civ. 2224 (JMF) (GWG), 2013 WL 5745989, at *2 (S.D.N.Y. Oct. 23, 2013) (collecting cases); see Awan v. United States, No. 16 Civ. 871 (CBA) (VMS), 2020 WL 1172634, at *9 (E.D.N.Y. Feb. 3, 2020) (recommending denial of motion to amend to add Bivens claims based on futility where proposed claims were untimely), adopted, 2020 WL 1166448 (E.D.N.Y. Mar. 11, 2020). Amendment is also futile "if the proposed claim could not withstand a motion to dismiss pursuant to [Rule] 12(b)(6)." Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Griffith-Fenton v. Coldwell Banker Mortg., No. 13 Civ. 7449 (VB), 2014 WL 6642715, at *l (S.D.N.Y. Oct. 17, 2014).
Leave may be denied as prejudicial if the proposed amended pleading would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Monahan, 214 F.3d at 284 (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)).
2. Statute of limitations for Bivens claims
"[S]tate law supplies the statute of limitations period" for Bivens claims, while "federal law determines when [the] claim[s] accrue[]." Kronisch v. United States, 150 F.3d 112, 123 (2d Cir. 1998) (citation omitted).
Where a plaintiff asserts Bivens claims that arose in a state outside of the forum in which suit is brought, "courts have adopted different methods to determine whether the statute of limitations of the forum state or the state in which the cause of action arose should apply." Delgado-Perez v. City of New York, No. 17 Civ. 1194 (LTS) (BCM), 2018 WL 6200039, at *4 (S.D.N.Y. Nov. 28, 2018). "Courts in the District of New Jersey and the Middle District of Tennessee, relying on language from Wallace v. Kato, [549 U.S. 384 (2007)], a Supreme Court case in which the forum state and the state in which the cause of action arose were the same, have held that courts should apply the statute of limitations of the state in which the cause of action accrued." kL (collecting cases); see also Audette v. United States, No. 20-CV-2495 (PJS/DTS), 2021 WL 1321088, at *2 (D. Minn. Feb. 25, 2021) (applying statutes of limitations of each of the four states in which the plaintiff's Bivens claims arose), adopted, 2021 WL 1187151 (D. Minn. Mar. 30, 2021). "Alternatively, the Seventh Circuit and the D.C. Circuit have applied the forum state's choice-of-law rules to determine which statute of limitations to apply." Delgado-Perez, 2018 WL 6200039, at *5 (collecting cases).
"A Bivens claim accrues under federal law for statute of limitations purposes when a plaintiff either has knowledge of his or her claim or has enough information that a reasonable person would investigate and discover the existence of a claim." Gonzalez v. Hasty, 802 F.3d 212, 220 (2d Cir. 2015).
3. Relation back
Federal Rule of Civil Procedure 15(c) provides that an amended complaint changing a named party will be deemed to "relate back" to the date of the "original pleading" if: (1) "the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading;" and (2) if, within 90 days of serving the original pleading, "the party to be brought in by amendment (¡) received such notice of the action that it will not be prejudiced in defending on the merits; and (¡¡) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed.R.Civ.P. 15(c)(1)(C). An amendment also relates back to a timely filed original pleading when "the law that provides the applicable statute of limitations allows relation back." Fed.R.Civ.P. 15(c)(1)(A). "The 'original pleading' to which Rule 15 refers is the complaint in an ordinary civil case . . . ." Mayle v. Felix, 545 U.S. 644, 655 (2005).
"[T]he relation back doctrine is inapplicable where . . . the original complaint itself is untimely." Bradley v. Nolan, No. 03 Civ. 1616 (GBD), 2007 WL 959160, at *2 (S.D.N.Y. Mar. 30, 2007); see Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010) ("Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading 'relates back' to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations.") (emphasis added); Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) ("For an amended complaint adding a new party to relate back under Rule 15(c)(1)(C), . . . the original complaint [must have been] filed within the limitations period.") (citation omitted). Relation back is designed "to accommodate the statute of limitations policies that prevent stale claims from being litigated, and permit their repose[;]... [it] was not designed to provide a means either to circumvent or to expand the limitations period." In re Allbrand Appliance & Television Co., 875 F.2d 1021, 1025 (2d Cir. 1989).
Where the original pleading was timely filed, the Second Circuit has explained that "Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1995), as modified, 74 F.3d 1366 (2d Cir. 1996). "Rule 15(c) explicitly allows the relation back of an amendment due to a 'mistake' concerning the identity of the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." id
B. Application
1. Futility
The Government argues that granting leave to amend would be futile because, inter alia, Nkansah's Bivens claims were untimely under New York and Alabama law when he filed the Complaint. (ECF No. 67 at 5-7). In his Motion, Nkansah does not address the futility doctrine or whether he filed the Complaint within the limitations period for his Bivens claims, focusing only on whether his claims relate back. (ECF No. 66 at 11-13). Indeed, he does not acknowledge the statute(s) of limitations applicable to his Bivens claims. (Id.) And in his Reply, Nkansah effectively concedes that he did not file the Complaint within the limitations period, arguing instead that "Rule 15(c) permits time-barred claims" where the prospective defendants had notice of the claims. (ECF No. 68 at 2-9).
The Court agrees with the Government that the Amendment is futile because Nkansah's Bivens claims were already t¡me-barred when he filed this lawsuit in November 2018.
As noted above, "state law supplies the statute of limitations period" for Bivens claims. Kronisch, 150 F.3d at 123. Here, Nkansah seeks to assert Bivens claims against: (1) the ICE officers in New York who were involved in his detention at Varick Street, which ended on August 17, 2015, and his transport from Varick Street to EDC from August 17-19, 2015; and (2) EDC medical personnel who encountered him during his detention at EDC between August 19, 2015 and "March 2016." (ECF No. 65-1 ¶¶ 40-51, ¶¶ 158-85; see ECF No. 66 at 12 ("Clearly, all the claims herein relate to the same period of occurrence between August 19, 2015, through March 2016 . . . .").
Determining the limitations period for Nkansah's Bivens claims arising in New York, i.e., the forum state, is straightforward. "The statute of limitations for Bivens actions arising in New York is three years." Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999). Accordingly, the limitations period for Nkansah's Bivens claims relating to his detention at Varick Street and his transport to EDC expired, respectively, on August 17, 2018 and August 19, 2018, i.e., three years after he "ha[d] knowledge of his . .. claim or ha[d] enough information that a reasonable person would investigate and discover the existence of a claim." Gonzalez, 802 F.3d at 220. Because Nkansah did not file the Complaint until November 9, 2018 (ECF No. 1), his Bivens claims arising in New York are time-barred.
Determining the limitations period for Nkansah's Bivens claims arising in Alabama is also straightforward because, although "courts have adopted different methods to determine whether the statute of limitations of the forum state or the state in which the cause of action arose should apply," Delgado-Perez, 2018 WL 6200039, at *4, applying either method here yields the same result. Under the first method, the Court would look to the statute of limitations under the law of Alabama, i.e., "the state in which the cause of action accrued." id "In Alabama, the two year limitations period in Ala. Code § 6-2-38(1) applies to . . . Bivens actions." Nicholson v. Harris. No. 119CV00542AKKJEO, 2019 WL 2754734, at *3 (N.D. Ala. May 8, 2019) (citing Jones v. Preuit&Mauldin. 876 F.2d 1480, 1483 (11th Cir. 1989)). The second method, i.e., "appl[ying] the forum state's choice-of-law rules to determine which statute of limitations to apply[, ]" Delgado-Perez, 2018 WL 6200039 at *5, also results in the application of Alabama law. "In New York, a nonresident plaintiff bringing suit based upon a cause of action that accrued outside of New York is subject to the 'borrowing' statute, N.Y. C.P.L.R. § 202, which examines the statutes of limitations of both states and applies the shorter statute of limitations." id; see N.Y. C.P.L.R. § 202 ("An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply."). Here, Alabama's two-year statute of limitations is shorter. Thus, under either method, Alabama law applies to Nkansah's Bivens claims arising in that state. Nkansah left EDC in March 2016, so the limitations period for his Bivens claims against the EDC medical personnel expired no later than March 31, 2018. (ECF No. 65-1 ¶ 51). As a result, the claims were already time-barred when he filed suit in November 2018.
The Court rejects Nkansah's unpersuasive and unfounded argument that Rule 15(c) permits amendment where the original complaint was filed after the statute of limitations so long as "the party to be brought in by amendment knew or should have known that it was not named in the complaint solely because the plaintiff had inaccurate or incomplete information concerning its identity." (ECF No. 68 at 7). As noted above, Nkansah premises this argument on a misunderstanding of the law, claiming that "[t]he Supreme Court in Krupski v. Costa Crociere S.p.A[, ] 560 U.S. 538 (2010) addressed the issue of whether a Plaintiff may amend his complaint to add the names of previously fictious-named John Doe defendants where the original complaint was filed beyond the statute of limitations and held that it could." (id at 2). In Krupski, the Court held that "relation back under Rule 15(c)(1)(C) depends on what the party to be added knew or should have known, not on the amending party's knowledge or its timeliness in seeking to amend the pleading." 560 U.S. at 541. The plaintiff in Krupski, unlike Nkansah, filed her original complaint within the applicable statute of limitations-that is, her original complaint was timely. Id. at 543 (explaining that "three weeks before the 1-year limitations period expired -Krupski filed a negligence action against Costa Cruise . . . .") (emphasis added). Indeed, the Supreme Court made clear in the very first sentence of its decision that, for Rule 15(c) to apply at all, the original pleading must have been timely filed. id at 541 ("Rule 15(c) of the Federal Rules of Civil Procedure governs when an amended pleading 'relates back' to the date of a timely filed original pleading and is thus itself timely even though it was filed outside an applicable statute of limitations.") (emphasis added). As set forth above, "the relation back doctrine is inapplicable where . . . the original complaint itself is untimely." Bradley, 2007 WL 959160, at *2. Because Nkansah's Bivens claims were time-barred when he filed his original Complaint, neither Krupski nor Rule 15(c) have any bearing on the Motion.
Moreover, the Second Circuit has rejected Nkansah's argument that Krupski represents a "developing evolutionary jurisprudence" that supports "allow[ing] relation back for claims against John Doe defendants where the prospective defendant had timely notice of the action . . . and thus knew or should have known that it was not named because the plaintiff lack knowledge concerning its identity." (ECF No. 68 at 9). It is well-settled that "'John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a 'John Doe' with a named party in effect constitutes a change in the party sued." Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993) (citations omitted). "Such an amendment may only be accomplished when all of the specifications of [Rule] 15(c) are met." id As discussed above, Rule 15 requires, inter alia, that the party to be added "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Fed.R.Civ.P. l5(c)(1)(C)(¡¡). Second Circuit law is clear that "the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Barrow, 66 F.3d at 470. Where "new names [are] added not to correct a mistake but due to a lack of knowledge, the requirements . . . for relation back are not met." ]cL As such, following Barrow, the Second Circuit has interpreted Rule 15(c)(1)(C) "to preclude relation back for amended complaints that add new defendants, where the newly added defendants were not named originally because the plaintiff did not know their identities." Hogan v. Fischer, 738 F.3d 509, 517 (2d C¡r. 2013) (citing Tapia-Ortiz, 171 F.3d at 152).
Nkansah acknowledges that the central holding of Barrow "remains good law," but nevertheless argues that, in light of Krupski, the Court should "interpret Rule 15(c) to allow relation back for claims against John Doe defendants where the prospective defendant had timely (constructive) notice of the action and knew or should have known that it was not named because the plaintiff lacked knowledge concerning its identity." (ECF No. 68 at 3-4). The Second Circuit has made clear, however, that "Krupski did not abrogate Barrow, which remains the law of this Circuit." Ceara v. Deacon, 916 F.3d 208, 213 (2d Cir. 2019). As the Second Circuit explained:
In Krupski the plaintiff had made an actual mistake because she "misunderstood crucial facts regarding the two companies' identities" and sought to replace one party with another. Krupski, 560 U.S. at 555, 130 S.Ct. 2485. She was not a "John Doe" litigant who did not know whom to name as a defendant; she made a mistake as to which of two parties to sue-parties whose identities she knew- because of her factual misunderstanding of the roles each played in the underlying events. In other words, unlike the plaintiff in Barrow, she was not replacing a John Doe placeholder with a party because she was initially unaware of the defendant's true identity. Barrow, by contrast, deals with that precise situation. Thus Krupski neither abrogated nor reconfigured Barrow's holding that an amendment to replace a John Doe defendant is made "not to correct a mistake but to correct a lack of knowledge" and is therefore not a mistake under Rule 15(c)(1)(C). Barrow, 66 F.3d at 470.Id.
Here, unlike the plaintiff in Krupski, Nkansah "did not make a mistake between two known alternative defendants based on a misunderstanding of their status or liability." Anderson v. City of Mount Vernon, No. 09 Civ. 7082 (ER) (PED), 2014 WL 1877092, at *4 (S.D.N.Y. Mar. 28, 2014). Rather, like the plaintiff in Barrow, Nkansah's failure to name the Individuals in the original complaint "was due to his lack of knowledge regarding [their] identities]." id (See ECF No. 66 at 5 ("Plaintiff filed his Complaint... at a time in which neither the names nor the total number of the aforementioned ICE agents, officers and/or medical personnel was known to the Plaintiff, hence, the said ICE agents were presented formally as Defendants JOHN DOES#1-36.")). Accordingly, the Amendment does "not correct a mistake in the original complaint, but instead supplie[s] information [Nkansah] lacked at the outset." Barrow, 66 F.3d at 470. Thus, even if Rule 15(c) were applicable, and the Supreme Court's holding in Krupski notwithstanding, Nkansah's Bivens claims would not relate back to the filing of the Complaint under Rule 15(c)(1)(C).
Nkansah's reliance on "New York Fictitious Name Pleading standards" under CPLR § 1024 is also unavailing, as those standards do not change the fact that he filed the Complaint after the limitations period for his Bivens claims. As noted above, Rule 15(c) also allows relation back where "the law that provides the applicable statute of limitations allows relation back." Fed.R.Civ.P. 15(c)(1)(A). Under New York law:
A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much of his name and identity as is known. If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.N.Y. C.P.L.R. § 1024. "New York courts have interpreted this section to permit John Doe substitutions nunc pro tunc." Hogan v. Fischer, 738 F.3d 509, 518-19 (2d Cir. 2013). Filing a "John Doe" complaint under C.P.L.R. § 1024, however, only "'fixe[s] the point at which an action was commenced for statute of limitations purpose,' after which a plaintiff is 'required to ascertain the identity of unknown 'Jane Doe' parties, and to serve process upon them, within 120 days from filing.'" Vasconcellos v. City of New York, No. 12 Civ. 8445 (CM), 2014 WL 4961441, at *8 (S.D.N.Y. Oct. 2, 2014) (quoting Bumpus v. N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104-05 (2d Dep't 2009)). Accordingly, even if the Court were to apply New York's more lenient standards concerning John Doe substitutions, it would have no effect on the Motion because Nkansah's Bivens claims were untimely when he filed the Complaint. See Neal v. Wilson, 239 F.Supp.3d 755, 760-61 (S.D.N.Y. 2017) (finding that a plaintiff could not "take advantage of [CPLR § 1024] because he did not 'proceed against' the [John Doe defendants] in any fashion until after the statute of limitations expired.").
Nkansah's argument relating to Rule 15(c)(1)(A) is limited to his claims arising in New York, and he does not address whether Alabama law would allow relation back of his claims arising in that state. (ECF No. 66 at 13-16). The Court notes that, "under Alabama law, an amendment substituting an actual defendant for a fictitious defendant relates back when: (1) the original complaint adequately described the fictitious defendant; (2) the original complaint stated a claim against the fictitious defendant; (3) the plaintiff was ignorant of the true identity of the defendant; and (4) the plaintiff used due diligence to discover the defendant's true identity." Saxton v. ACF Indus., Inc., 254 F.3d 959, 965 (11th Cir. 2001). However, such an amendment relates back only "to the date of the original pleading." Ala. R. Civ. P. 15(c). Thus, like CPLR § 1024, Alabama's relation back rules would have no effect on the Motion because Nkansah failed to file his original pleading within the limitations period for his Bivens claims.
Finally, the Court rejects Nkansah's argument that the SF-95 he filed on August 9, 2017 provided adequate "constructive notice" to the Individuals through their "identity of interest" with ICE such that he "should be found to have satisfied the requirements of Rule 15(c)." (ECF No. 68 at 6-7). Nkansah provides no legal support-and the Court is aware of none-for his suggestion that his SF-95 can somehow constitute a timely filed "original pleading" to which the PAC can relate back. Fed.R.Civ.P. 15(c)(1); cf. Mayle, 545 at 655 ("The 'original pleading' to which Rule 15 refers is the complaint in an ordinary civil case ...."). And like relation back itself, the "identity of interest" exception to the relation back rule is inapplicable here, where the original complaint was untimely. Under the "identity of interest" exception, "the institution of an action against one party will constitute imputed notice to a party subsequently named by an amendment of the pleading when the parties are closely related in their business activities or linked in their corporate structure." Allbrand, 875 F.2d at 1025 (2d Cir. 1989). Still, in order for the exception to apply, "timely filing of the complaint" is "prerequisite[]." id; see Schiavone v. Fortune, 477 U.S. 21, 29 (1986) ("Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party.") (emphasis added); Tapers v. Bernie Wolff Const. Corp., No. 91 Civ. 634 (JSM), 1991 WL 243428, at *6 n.6 (S.D.N.Y. Nov. 12, 1991) (same). Because Plaintiff's Bivens claims were not timely filed to begin with, the exception is inapplicable.
Accordingly, because Nkansah's Bivens claims against the Individuals were time-barred when he filed the Complaint, the Amendment is futile.
2. Remaining arguments
The Government opposes the Motion on two other grounds: (¡) the Amendment is futile because Nkansah's Bivens claims against the Individuals lack the specific factual allegations necessary to withstand dismissal under Fed.R.Civ.P. 12(b)(6); and (¡¡) granting the Motion would unduly prejudice the Individuals. (ECF No. 67 at 9-11). Nkansah argues that his allegations satisfy Rule 12's pleading standard and that the Government fails to establish prejudice to the Individuals. (ECF Nos. 66 at 16-18; 68 at 9-13). Because the Court finds that the Amendment is futile because Nkansah's Bivens claims against the Individuals are time-barred, it does not reach these alternative arguments.
IV. CONCLUSION
For the reasons stated above, I respectfully recommend that the Motion be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Crotty.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).