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holding that the availability of information regarding the identity of the "B" post officer to defense counsel could be imputed to new defendant
Summary of this case from Tolbert v. KoenigsmannOpinion
05 Civ. 6575 (WHP) (THK).
August 9, 2006
MEMORANDUM OPINION AND ORDER
Plaintiff Kevin Smalls, proceeding pro se, brings this action against various New York City correctional employees for failure to protect him from harm when he was incarcerated at the Adolescent Reception and Detention Center on Rikers Island. The action was referred to this Court for general pretrial supervision. Presently before the Court is Plaintiff's motion to amend the Complaint to (1) remove Corrections Officer Harper as a defendant; and (2) to add Corrections Officer Magloire ("Magloire") and the City of New York as defendants. (See Notice of Motion, dated June 2, 2006, and Affirmation of Kevin Smalls, dated June 3, 2006 ("Smalls Aff.").) Defendants have no objection to the dismissal of the claims against Defendant Harper, but do object to the addition of new parties, arguing, inter alia, that any such amendment would be futile, as the claims against Magloire and the City of New York are timebarred. (See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend ("Defs.' Mem."), at 2.)
Plaintiff's motion was preceded by a letter-application seeking essentially the same relief as in his motion. (See Letter from Kevin Smalls to the Court, dated May 19, 2006 ("Smalls Ltr.").)
Initially, Defendants submitted a letter in opposition to Plaintiff's letter-application to the amend the Complaint. (See Letter from Elizabeth Daitz, Esq. to the Court, dated May 25, 2006 ("Daitz Ltr.").)
DISCUSSION
I. Amendment StandardsRule 15 of the Federal Rules of Civil Procedure provides that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Leave to amend should be granted unless there is "any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment. . . ." Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962); see also Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir. 2000) (noting that leave to amend is "discretionary" and should be "freely given");Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ("The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.").
However, "`[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.'" Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (quoting Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993)). "One appropriate basis for denying leave to amend is that the proposed amendment is futile." Id. (citing Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001));see also Foman, 371 U.S. at 182, 83 S. Ct. at 230; Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). "A proposed amendment to a pleading [is] futile if it could not withstand a motion to dismiss pursuant to Rule 12 (b) (6)." Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003), rev'd on other grounds, 544 U.S. 197, 125 S. Ct. 1478 (2005); see also Lucente, 310 F.3d at 258 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied").
II. Officer Magloire
A three-year statute of limitations governs Plaintiff's federal civil rights claim, to which Plaintiff proposes to add Magloire as a defendant. See Owens v. Okure, 488 U.S. 235, 251, 109 S. Ct. 573, 582 (1989); Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996). The events that form the basis of Plaintiff's Complaint occurred on May 10, 2003. (See Complaint ("Compl.") ¶ 17.) The Complaint was submitted to the Court's Pro Se Office on July 7, 2005, and was officially filed on July 20, 2005. Plaintiff's motion to amend the Complaint is dated June 2 10, 2006, and was received by the Court approximately one week later.
It is apparent that more than three years will have passed between service of process on Officer Magloire and the events of May 10, 2003. Thus, the claims against Magloire would be time-barred unless the amendment to the Complaint were to relate back to the date on which the original Complaint was filed. An amendment relates back to the date of the original Complaint when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the actions, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Plaintiff's amendment, if granted, would change the party against who the claims are asserted, namely from Defendant Harper to Magloire. There is no dispute that the claims that Plaintiff seeks to assert against Magloire arose out of the occurrences set forth in the original Complaint. Therefore, subdivision (3) of Rule 15©) is most relevant to determining whether the proposed amendment would relate back to the filing of the Complaint.
Since the Complaint was filed on July 20, 2005, the deadline for service of the Complaint under Rule 4(m) of the Federal Rules of Civil Procedure was approximately November 20, 2005. Officer Magloire could not have known by November 20, 2005, that he was supposed to be a party to this action, since he has still not been served with process. However, Plaintiff claims to have only recently discovered that Magloire was the "B" post officer on duty on the night of Plaintiff's attack by another inmate. He assumed that Officer Harper was at the "B" post because Harper was one of the individuals who signed the Injury to Inmate Report relating to Plaintiff's injury. Having recently obtained a copy of the housing area logbook, Plaintiff ascertained that Officer Magloire was in fact the "B" post officer. (See Smalls Aff. ¶¶ 2-4, 11; Smalls Ltr.) In effect, Plaintiff contends that he did not have knowledge of who the "B" officer was until recently, and that he mistakenly named Harper as the "B" officer. This type of mistake falls within the parameters of Rule 15(b).
The Second Circuit has concluded that where newly-named defendants are added "not to correct a mistake but to correct a lack of knowledge, the requirements of Rule 15©) for relation back are not met." Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir. 1996). In the Barrow case, the pro se prisoner-plaintiff named ten "John Doe" police officer-defendants, and was explicitly informed by the district court within the limitations period that he was required to identify and name the individual officers as defendants. See id. at 469-70. He failed to do so, and the court concluded that "failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Id. at 470. The court contrasted the Barrow situation with the situation in which, for example, a plaintiff mistakenly believes that suing a police department rather than a department head would suffice.See id. at 469.
Here, Plaintiff did not fail to name a party; he named the wrong party. His Complaint makes clear that he believed that Defendant Harper was the "B" post officer in his housing area on the evening of his assault. (See Compl. ¶ 6.) It was only after receiving Defendants' initial disclosures that Plaintiff learned that the "B" post officer was actually Magloire. Moreover, in contrast with Barrow, Plaintiff was never advised by the Court that he named the wrong party and that he was obligated to name and serve the correct party with process, but chose not to do so.
Rule 15 (c) (3) (B) explicitly refers to "a mistake concerning the identity of the proper party. . . .", Fed.R.Civ.P. 15 (c) (3) (B), and the Advisory Committee Notes to Rule 15©) explicitly that curing a misnomer is the type of mistake for which relation back of an amendment is permitted. See Rule 15©) Advisory Committee Note to 1991 Amendment (cited by Barrow, 66 F. 3d at 469.) As the Second Circuit has recognized, a "`mistake' as used in Rule 15(c) applies to mistakes of law as well as fact."Soto, 80 F. 3d at 36 (internal citations omitted). A factual mistake is one where a plaintiff misapprehends the identity of an individual he wishes to sue. See id.; Cornwell v. Robinson, 23 F. 3d 694, 705 (2d Cir. 1994) ("The requirement that a new defendant `knew' he was not named due to a mistake concerning identity presupposes that in fact the reason for his not being named was a mistake in identity.").
Plaintiff's identification of Defendant Harper as the "B" post officer, rather than Magloire, was clearly a mistake in identity, which would permit the relation back of the amendment to the date the Complaint was filed. See Barrow, 66 F. 3d at 469 ("This commentary [to Rule 15 (c)] implies that the rule is meant to allow an amendment changing the name of a party to relate back to the original complaint only if the change is the result of an error, such as misnomer or misidentification."); Noguera v. Hasty, No. 99 Civ. 8786 (KMW) (AJP), 2000 WL 1011563, at *15-16 (S.D.N.Y. July 21, 2000) (permitting relation back where plaintiff misidentified the warden of the facility and subsequently named the correct warden) (Report and Recommendation, adopted on other grounds, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001); Gonzalez v. Officer in Charge of Barber Shop, No. 99 Civ. 3455 (DLC), 2000 WL 274184, at *4-5 (S.D.N.Y. Mar. 13, 2000) (permitting relation back where plaintiff had only named the defendant as "Officer in charge of the barber shop," but, after the statute of limitations had run, plaintiff discovered the officer's identity and named him as a defendant);Hutnik v. Sec. Messenger Serv., Inc., No. 98 Civ. 6481 (MBM), 1999 WL 619592, at *4-6 (S.D.N.Y. Aug. 16, 1999) (permitting amendment identifying successor employer as a defendant where plaintiff had been mistaken as to the true identity of his employer).
There remains the issue, however, of whether Officer Magloire had notice of the Complaint within the 120-day period for service of process, as required by Rule 15(c), in order to avoid prejudice. Clearly, he did not have such knowledge personally, since he was not served with the Complaint by November 20, 2005, and still has not been served with the Complaint. Nevertheless, it is wellestablished that a municipal employee is deemed to have constructive notice of a complaint where he is or will be represented by the same attorney as the other defendants in the action, and that attorney knew or should have known that but for a mistake as to identity, the newly-identified individual would be named as a defendant. See Gleason v. McBride, 869 F. 2d 688, 693 (2d Cir. 1989); Noguera, 2000 WL 1011563, at *15;Gonzalez, 2000 WL 274184, at *5; Byrd v. Abate, 964 F. Supp. 140, 146-47 (S.D.N.Y. 1997); Mosley v. Jablonsky, 209 F.R.D. 48, 53-54 (E.D.N.Y. 2002).
Since the Complaint sought to identify as a defendant the "B" post officer in Plaintiff's housing area, and knowledge of who the "B" post officer was or should have been available to the Assistant Corporation Counsel representing the other Defendants in this action, the Assistant Corporation Counsel's knowledge can theoretically be imputed to Magloire. See Byrd, 964 F. Supp. at 146-47 (identity of unnamed housing officer-defendant was "uniquely accessible to Corporation Counsel"); Mosley, 209 F.R.D. at 53-54 (Nassau County Attorney's Office should have known that three individual officers accused of mistreating the plaintiff should have been named as defendants). Nevertheless, none of the other Defendants were served with process until January 2006, several months after the 120-day period for service of the Complaint had expired. After being served with process, Defendants requested representation by the Office of the Corporation Counsel, thus placing the Assistant Corporation Counsel on the case on notice of the allegations in the Complaint. It follows that neither the named Defendants nor the Office of the Corporation Counsel were aware of Plaintiff's claims until the 120-day period for service of process had expired. Thus, even if the Assistant Corporation Counsel's knowledge were to be imputed to Officer Magloire, that knowledge would not exist within the time period required by Rule 15(c) (3).
The Assistant Corporation Counsel filed a notice of appearance on February 17, 2006.
Moreover, Officer Magloire left the employ of the City of New York on May 18, 2003, one week after the incident in issue in this action. The case was not commenced until over two years later, and no Defendant was served with process until six months after that, which was two and one-half years after Magloire left the City's employ. (See Defs.' Mem. at 4-5.) Finally, Plaintiff did not propose to name Magloire as a Defendant until another six months had passed. (See Notice of Motion, dated June 2, 2006.) Since Officer Magloire left the City's employ over three years ago, the Assistant Corporation Counsel's notice of the suit only six months ago cannot be imputed to Magloire. In any event, any knowledge the Assistant Corporation Counsel had did not fall within the time required by Rule 15(c) (3), and, as such, could not be imputed to Magloire.
Accordingly, the proposed amendment naming Magloire as a defendant would not relate back to the filing of the original Complaint, and is therefore time-barred. It follows that the amendment would be futile, and it is therefore denied.
III. City of New York
Plaintiff also seeks to add the City of New York as a defendant in this action, alleging that it was negligent and violated its state law non-delegable statutory duty to keep Plaintiff safe. (See Proposed Amended Complaint ¶¶ 30-41.) Defendants contend that this proposed amendment is also time-barred. (See Defs.' Mem. at 2.) The Court agrees.
Plaintiff alleges a state-law negligence claim against the City. (See Proposed Amended Complaint ¶¶ 30-41.) A one year and ninety day statute of limitations governs tort claims brought against New York municipalities. See N.Y. Gen. Mun. Law § 50-I;Idrees v. City of N.Y. Dep't of Parks and Recreation, No. 04 Civ. 2197 (LAK) (GWG), 2005 WL 1026027, at *8 (S.D.N.Y. May 3, 2005) Wilson v. City of New York, No. 04 Civ. 1906, 2005 WL 2387585, at *2 (E.D.N.Y. Sept. 28, 2005). The limitations period as to Plaintiff's claims would therefore have expired in August of 2004. (The incident in issue occurred on May 10, 2003.) Thus, even if the proposed amendment were subject to the relation back provision of Rule 15(c), it would not save the claim against the City from being time-barred, as the initial Complaint in this action was not filed until July 7, 2005, subsequent to when the statute of limitations had already expired. Accordingly, Plaintiff's motion to amend the Complaint to name the City of New York as a defendant is denied as futile.
Because Plaintiff is proceeding pro se, the filing date corresponds to the date on which the Complaint was received by the Court's Pro Se Office, rather than the date on which it was formally filed. See Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989); Toliver v. Sullivan County, 841 F.2d 41, 42 (2d Cir. 1988) (pro se complaint deemed filed when received bypro se office); Diallo v. Williams, No. 04 Civ. 4556 (SHS) (DG), 2006 WL 156158, at *2 n. 6 (S.D.N.Y. Jan. 20, 2006) (same).
Moreover, even if Plaintiff were to allege a federal civil rights claim against the City of New York, the failure to name the City of New York as a defendant in the original Complaint cannot be viewed as a "mistake" under Rule 15(c), allowing a relation back of the amendment. Plaintiff has always known that he was in the custody of the City of New York, and he merely chose not to name the City of New York as a defendant. In addition, there is no reason for the City of New York to have known that, but for a mistake, it would have been a defendant in this action. The City of New York is not a necessary party in prisoner suits against individual officers accused of abuse, and nothing in the original Complaint suggested that Plaintiff was challenging a policy or practice of the City of New York.
CONCLUSION
For the reasons set forth above, Plaintiff's motion to amend the Complaint to dismiss the claims against Corrections Officer Harper is granted. Plaintiff's motion to amend the Complaint to add Corrections Officer Magloire and the City of New York as defendants is denied.SO ORDERED.