Henderson v. Williams et al

Filing 173

PRISCS - ORDER denying 165 Motion to Compel; denying 167 Motion to Amend/Correct. Signed by Judge William I. Garfinkel on 10/2/2012. (Smith, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DANIEL HENDERSON,
Plaintiff,
v.
JOHN WILLIAMS, et al.,
Defendants.

:
:
:
:
:
:
:

CASE NO. 3:10-cv-1621(MRK)(WIG)

RULING ON PLAINTIFF’S MOTIONS TO COMPEL [Doc. #165]
AND TO AMEND AND CITE IN DEFENDANTS [Doc. #167]
I.

Motion to Compel [Doc. #165]
The plaintiff moves to compel responses to his February 10,

2012 new discovery request.

The defendants object on the ground

that they responded to the requests.
As the court previously explained to the plaintiff, a motion
to compel must be accompanied by a affidavit certifying that he
attempted to resolve the discovery dispute in good faith before
seeking court intervention.

See Doc. #164.

Although he has

attached a purported affidavit to his motion, the plaintiff has
not satisfied this requirement.

The plaintiff merely states that

he wrote a letter to defendants’ counsel and did not receive a
response.

He does not attach a copy of the letter to his motion.

Without the letter, the court cannot determine whether the
plaintiff attempted to resolve the matter in good faith or merely
demanded compliance with his request.
denied.

Accordingly, the motion is

In addition, a review of the motion reveals that the
plaintiff is not satisfied with the responses but has failed to
follow the court’s direction regarding this issue.

For example,

in the December 5, 2011 order, pursuant to which the plaintiff
drafted this discovery request, the court noted that if there
were no documents, other than the arrest warrant, demonstrating
that the house subject to the warrant was a single-family
dwelling, the plaintiff could attempt to learn the defendants’
reasons for believing this to be true through depositions and
other means of discovery.

See Doc. #95 at 5.

In response to the

plaintiff’s new discovery request, the defendants indicate that
they have no such documents.

Rather than employing other avenues

of discovery, the plaintiff has filed this motion to compel.

The

court cannot compel the defendants to produce documents they do
not possess.
The defendants have responded to the plaintiff’s requests.
If the plaintiff considers these responses insufficient to
support the defendants’ actions, he may assert that at trial or
in opposition to a motion for summary judgment.

The plaintiff’s

motion to compel is denied.
II.

Motion to Amend and Cite In Party Defendants [Doc. #167]
The plaintiff seeks leave to file a fourth amended complaint

adding as defendants Officers Keith Graham, John Cerejo, Calvo
and Tom Topulous.

He states that he only recently learned that

2

these four officers entered his apartment while executing a
warrant on January 20, 2009.
The court should grant leave to amend when justice so
requires.

Fed. R. Civ. P. 15(a)(2).

The limitations period for

filing a section 1983 action, however, is three years.

See

Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994)(holding
that, in Connecticut, the general three-year personal injury
limitations period set forth in Connecticut General Statutes §
52-577 is the appropriate limitations period for civil rights
actions asserted under 42 U.S.C. § 1983).

The plaintiff is

asserting a claim for use of excessive force against these
officers.

He was aware of his claim as soon as the actions

occurred and should have filed an action against them on or
before January 20, 2012.

Thus, his amendment appears untimely.

Rule 15(c), Fed. R. Civ. P., provides that an amendment may
relate back to the filing of the original complaint if the claims
against the new party arise out of the same occurrence as the
original complaint and, within 120 days of filing the original
complaint, the new defendant received sufficient notice of the
action that he will not be prejudiced in maintaining his defense
on the merits of the claim against him and that the new defendant
knew or should have know that, but for a mistake concerning the
identify of the proper party, the complaint would have been
brought against him.

The Second Circuit has held that an amended

3

pleading does not relate back to the filing of the original
complaint where a defendant was not included in the original
complaint because plaintiff did not know the identity of that
defendant.

See Barrow v. Wethersfield Police Dep’t, 66 F.3d 466,

469-70 (2d Cir. 1995), op’n mod’d and aff’d, 74 F.3d 1366, 1367
(2d Cir. 1996).
The plaintiff meets the first requirement, the claims
against the four officers arise out of the same occurrence as,
and were identified in, the original complaint.

However, the

plaintiff fails to allege or show that the officers’ identities
were not otherwise available to him or that the defendants
actively withheld this information despite repeated requests.
The plaintiff states that he requested this information in
interrogatories No. 25-ii submitted June 30, 2011, and NO. 17J(1) submitted June 8, 2011, but did not receive a response until
August 2012.

He does not explain why he waited over two years to

begin seeking this information.

Thus, the delay is the result of

lack of knowledge of the officers’ identities and lack of
diligence to ascertain those identities, which is insufficient to
warrant amendment of the complaint.

As any claim against these

officers is time-barred, the motion to amend and cite-in party
defendants is denied as futile.
In addition, the original complaint names only actual and
John Doe members of the Meriden Police Department.

4

In a previous

motion to amend [Doc. #97], the plaintiff identifies two of these
officers as Connecticut State Police Troopers.

They did not

receive notice of the filing of this action within the required
120 days and would now be prejudiced if they had to defend an
action against them.
III. Conclusion
Plaintiff’s motion to compel [Doc. #165] is DENIED.
Plaintiff’s motion to amend [Doc. #167] is DENIED as futile.
SO ORDERED this

2nd

day of October 2012, at

Bridgeport, Connecticut.
/s/ William I. Garfinkel
William I. Garfinkel
United States Magistrate Judge

5