Bristol v. Queens County et al

Filing 240

ORDER denying 169 Letter request for an extension of time to serve Postal Inspector Ysento Belfort with the Summons and Second Amended Complaint. SEE ATTACHED ORDER for details. Ordered by Magistrate Judge A. Kathleen Tomlinson on 4/15/2016. (Kandel, Erin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARCEL C. BRISTOL,
Plaintiff,
ORDER
- against CV 09-5544 (JFB) (AKT)
QUEENS COUNTY; QUEENS COUNTY DA’S
OFFICE; RICHARD BROWN, DA; DANIEL
O’BRIEN; QUYNDA FLEMING, ADA;
NEIL F. GITIN, ADA; N.Y.P.D. DETECTIVE
ONIEL MILLER; SEAN RING; JOHN DOE 1-4;
NASSAU COUNTY; NASSAU COUNTY DA’S
OFFICE; KATHLEEN RICE, DA; INSP. YSENTO,
Reg. 5519; LAUREN DODDATO, ADA;
JANE DOE, ADA; NASSAU COUNTY
DETECTIVES RONALD SCHEPIS and
JOHN HARVEY; HORVATH FRANK, et al.,
Defendants.
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A. KATHLEEN TOMLINSON, Magistrate Judge:
I.

PRELIMINARY STATEMENT
Plaintiff brings this Section 1983 action alleging, inter alia, cruel and unusual

punishment, double jeopardy, illegal search and seizure, fabrication of evidence, and Section
1983 conspiracy. The Court has received the pro se Plaintiff’s letter requesting that the Court
extend Plaintiff’s time to serve defendant Postal Inspector Ysento Belfort with the Summons and
Second Amended Complaint. See DE 169. The U.S. Attorney’s Office opposes Plaintiff’s
request. See DE 171. For the reasons that follow, Plaintiff’s request is DENIED.
II.

PROCEDURAL HISTORY
Plaintiff filed the Complaint in this action on December 14, 2009. See DE 1. Plaintiff

alleged violations of Section 1983 including, inter alia, cruel and unusual punishment, double

jeopardy, illegal search and seizure, fabrication of evidence, and conspiracy. Id. Plaintiff named
Nassau and Queens Counties as Defendants, along with a number of individual Defendants,
primarily police officers, detectives, and district attorneys from Suffolk and Nassau Counties.
See id. Plaintiff also named as Defendants “John Does 1-5.” Id. All of Plaintiff’s allegations
stemmed from incidents occurring in 2008. See id. Although “John Doe 5” was included in the
caption of Plaintiff’s Complaint, he was not specifically mentioned in the body of the Complaint.
On June 7, 2010, Nassau County and the individual defendants employed by Nassau
County (the “Nassau County Defendants”) moved to dismiss Plaintiff’s Complaint. See DE 42.
On January 5, 2012, the Nassau County Defendants’ motion was granted in its entirety. See
DE 95. However, Plaintiff was granted leave to file an Amended Complaint to state his claims
with more specificity. Id.
On January 30, 2012, Plaintiff filed an Amended Complaint. DE 97. Shortly thereafter,
on February 27, 2012, Plaintiff filed a Second Amended Complaint (“SAC”) to correct an error
in the Amended Complaint. DE 99. The Amended Complaint and the SAC asserted claims
against “John Doe 1-4.” DE 97, 99. The Amended Complaint and the SAC also included a new
Defendant, “Insp. Ysento, Reg. 5519” (Inspector Ysento Belfort, hereafter “Inspector Belfort”),
presumably replacing John Doe 5. DE 97, 99. The SAC alleges that Inspector Belfort
knowingly and deliberately prepared a felony complaint littered with hearsay in order to secure
an indictment against Plaintiff in the Queens County Criminal Court. SAC ¶ 17. Specifically,
Plaintiff argues that Inspector Belfort acted as a complaining witness against Plaintiff, testifying
falsely and offering fabricated evidence to secure an indictment against Plaintiff based on
deliberate falsehoods. SAC ¶ 29. Plaintiff has previously introduced a copy of Inspector

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Belfort’s testimony in the Queens County Criminal Court as part of his opposition to the Nassau
County Defendants’ motion to dismiss. See DE 115.
On February 13, 2012, the Clerk’s Office asked Plaintiff to provide the street address of
Inspector Belfort to facilitate service of the Summons and Amended Complaint. DE 98.
Apparently, Plaintiff responded to the request of the Clerk’s Office, providing two addresses for
Inspector Belfort. See DE 175, Ex. A. 1 Plaintiff stated that Inspector Belfort could be served at
the Department of Justice Office in Washington, D.C. or at the U.S. Postal Inspector’s Office in
Flushing, New York. See id. On March 9, 2013, the Clerk’s Office issued the Summons and
SAC to Inspector Belfort, and directed the Marshal’s Office to serve the Summons and SAC
upon all of the Defendants.
On September 13, 2012, the Summons forwarded to Inspector Belfort at the U.S. Postal
Inspector’s Office in Flushing, New York was returned unexecuted, with the note “no one by
above name works at above facility.” DE 124. The Clerk’s Office requested additional
information from Plaintiff to effectuate service of the SAC upon Inspector Belfort. DE 125. In a
letter dated October 4, 2013, Plaintiff responded to the Clerk’s Office’s request, stating that
“[t]he full and complete name for the Queens County Postal Inspector is Yseult Belfort, AKA
Seult Belfort. He can be served at his office in Queens County or through the office of the
United States Attorney General.” DE 131. On October 12, 2012, a certificate of service was
returned executed for the U.S. Attorney’s Office, 271 Cadman Plaza East, Brooklyn, New York,

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In response to the U.S. Attorney’s Office’s objections to Plaintiff’s request for service on
Inspector Ysento, Plaintiff has included correspondence with the Clerk’s Office reflecting the
fact that he provided two addresses for service for Inspector Belfort. See DE 175, Ex. A.
However, the correspondence is not dated and was never filed on ECF.
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11201. DE 130. The Summons and SAC were also served upon Inspector Belfort at the U.S.
Attorney General’s Office in Washington, D.C. DE 133.
On May 8, 2013, the Court met with the parties for a discovery status conference.
DE 151. At the conference, the Plaintiff represented that Inspector Belfort had been served. Id.
However, the Court noted that no answer had been filed on Inspector Belfort’s behalf. Id. After
the conference, the Court issued an Order to the U.S. Attorney’s Office requesting a response
regarding Inspector Belfort. See DE 152. The U.S. Attorney’s Office represented that, because
Inspector Belfort was identified in the SAC “as a defendant in an individual capacity,” Inspector
Belfort must be personally served. DE 158. The U.S. Attorney’s Office argued that Inspector
Belfort was never properly served and that Plaintiff had not made any attempt to properly serve
Inspector Belfort or move for an extension of time to serve Inspector Belfort. Id.
The Court held another discovery status with the parties on May 28, 2013. DE 160. The
Court discussed the U.S. Attorney’s Office’s submission with the pro se Plaintiff. Id. The
Plaintiff represented that he would like an extension of time to have Inspector Belfort personally
served with the SAC. Id. The Court advised Plaintiff that he would need to submit his request in
writing as a letter motion. Id. The current outstanding request followed. See DE 169. The U.S.
Attorney’s Office opposes Plaintiff’s request. See DE 171. Further, the Court has allowed the
pro se Plaintiff to respond to the arguments set forth in the opposition filed by the U.S.
Attorney’s Office. See DE 172. On June 24, 2013, Plaintiff submitted his objections to that
opposition. See DE 175. The Court has reviewed this issue as follows.
III.

LEGAL STANDARD
Under Rule 4(m), “[i]f a defendant is not served within 90 days after the complaint is

filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action

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without prejudice against that defendant or order that service be made within a specified time.”
Fed. R. Civ. P. 4(m). 2 However, where a plaintiff shows “good cause” for the failure to serve,
“the court must extend the time for service for an appropriate period.” Id.
“Rule 15(c) (1)(C) provides the federal standards for relation back.” Hogan v. Fischer,
738 F.3d 509, 517 (2d Cir. 2013). Under Rule 15(c)(1)(C), an amendment to change the party
against whom a claim is asserted will relate back only if all of the following specifications are
met:
(1) the claim must have arisen out of conduct set out in the original
pleading; (2) the party to be brought in must have received such
notice that it will not be prejudiced in maintaining its defense; (3)
that party should have known that, but for a mistake of identity, the
original action would have been brought against it; and . . . [4] the
second and third criteria are fulfilled within [the Rule 4(m) service
period], and . . . the original complaint [was] filed within the
limitations period.
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield Police Dep’t., 66 F.3d 466, 468–69 (2d
Cir. 1995)) (emphasis in Hogan); see Fed. R. Civ. P. 15(c)(1).
“[I]n order to amend a pleading to replace a John Doe Defendant with a named
Defendant where the statute of limitations has run, the claims must relate back as provided by
Rule 15(c).” Morales v. Cty. of Suffolk, 952 F. Supp. 2d 433, 436 (E.D.N.Y. 2013) (“When an
amended pleading changes a party or a party's name and the statute of limitations has run, the
party seeking the amendment must also comply with Rule 15(c).”). However, 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.” Barrow, 66

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Rule 4(m) was amended on December 1, 2015 to reduce the presumptive time for serving
a defendant after the complaint is filed from 120 days to 90 days. See Fed. R. Civ. P. 4 Advisory
Committee’s note. Given the circumstances presented here, this change in the Rule has no
bearing or effect on the Court’s decision on Plaintiff’s motion.
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F.3d at 468; see Morales, 952 F. Supp. 2d at 436; Feliciano v. County of Suffolk, No. CV 045321, 2013 WL 1310399, at *6 (E.D.N.Y. Mar. 28, 2013).
IV.

DISCUSSION
In general, the U.S. Attorney’s Office argues that Inspector Belfort was never properly

served in his personal capacity, and that Plaintiff has not made any “good faith” attempt to
properly serve Inspector Belfort. DE 171. The U.S. Attorney’s Office also contends that, in
weighing prejudice to Inspector Belfort, late service would require Inspector Belfort to defend an
action that was commenced in 2009 over alleged violations committed in 2008. Id. Plaintiff
maintains that (i) he relied on the U.S. Marshals to serve the individual defendants; (ii) the
conditions of his confinement and delays of discovery prevented timely service; (iii) he provided
the Clerk’s Office the information they requested in order to effectuate service; and (iv) service
was eventually made upon Inspector Belfort in September 2012. DE 175.
As an initial matter, with respect to Plaintiff’s amending the Complaint to remove “John
Doe 5” and add “Inspector Belfort,” the Court notes that the Plaintiff never moved to amend the
Complaint in this fashion. Rather, on January 30, 2012, Plaintiff filed an Amended Complaint
after his original Complaint was dismissed. As noted, the original Complaint in this case was
filed in January 2009, for alleged violations occurring in 2008. DE 1. The statute of limitations
for claims brought pursuant to 42 U.S.C. § 1983 depends on the law of the state in which the
claims are brought. See, e.g., Feliciano, 2013 WL 1310399, at *6. For cases brought in New
York, the statute of limitations is three years. Id. (emphasis supplied) (citing Patterson v. Cnty.
of Oneida, 375 F.3d 206, 225 (2d Cir. 2004); Rodriguez v. City of New York, No. 10–CV–1849,
2011 WL 4344057, at *2 (S.D.N.Y. Sept. 7, 2011)). Therefore, in order for Plaintiff to have
appropriately amended the Complaint to replace “John Doe 5” with “Inspector Belfort,” the

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claims must relate back as provided by Rule 15(c) in order for the claims to come within the
period covered by the statute of limitations. See, e.g., Morales, 952 F. Supp. 2d at 436;
Feliciano, 2013 WL 1310399, at *6.
The Court finds that the SAC amendment adding Inspector Belfort does not relate back to
the original Complaint. As noted, the final condition of the relation back doctrine requires that
the Proposed Defendants “knew or should have known that the action would have been brought
against [them], but for a mistake concerning the proper party’s identity.” Fed .R. Civ. P.
15(c)(1)(ii). However, 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.” Barrow 66 F.3d at 468; Morales, 952 F. Supp. 2d at 436; Feliciano,
2013 WL 1310399, at *9. The Second Circuit addressed the issue of mistaken identity as it
relates to John Doe defendants in Barrow and ruled 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.
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.
Barrow, 66 F.3d at 468.
Although not cited by the Plaintiff, the Court notes that there has been some debate over
the continuing vitality of Barrow after the Supreme Court’s decision in Krupski v. Costa
Crociere S.p.A., 560 U.S. 538, 130 S. Ct. 2485, 177 L.Ed.2d 48 (2010). In Krupski, the plaintiff
tripped over a cable and fractured her femur while on board the cruise ship Costa Magica. 560
U.S. at 541-42. Based on information on her ticket, Krupski’s attorney sued Costa Cruise Lines,
notwithstanding the fact that the ticket identified the carrier as Costa Crociere S.p.A., an Italian
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corporation. Id. at 542. The plaintiff’s attorney did not seek to add the correct entity until after
the statute of limitations expired. Id. at 543. The Eleventh Circuit ruled that the proposed
amendment did not relate back because the plaintiff was made aware of the existence of the
correct entity prior to the expiration of the statute of limitations. Id. at 546. The Supreme Court
reversed and, in doing so, made clear that “[t]he question under Rule 15(c) (1)(C)(ii) is not
whether [the plaintiff] knew or should have known the identity of [the proper defendant], but
whether [the proper defendant] knew or should have known that it would have been named as a
defendant but for an error.” Id. at 548. However, in Krupski, the Supreme Court did not have
reason to address the central holding of Barrow which is also the key issue in this case: whether
a plaintiff’s lack of knowledge as to the identity of “John Doe” Defendants can be considered a
“mistake” or “error.” See Morales, 952 F. Supp. 2d at 437. “Because Krupski does not address
this isolated issue, the Court concurs with the other courts in this Circuit which have concluded
that Barrow remains good law even after Krupski.” Id. at 437-38 (collecting cases); see, e.g.,
Moran v. Cty. of Suffolk, No. 11-CV-3704, 2015 WL 1321685, at *6, n.5 (E.D.N.Y. Mar. 24,
2015); Ulloa v. City of New York, No. 13-CV-5795, 2014 WL 1100226, at *2 (S.D.N.Y. Jan. 6,
2014); Lewis v. City of New York, No. 12-CV-2836, 2013 WL 6816615, at *6 (E.D.N.Y. Dec.
24, 2013), aff'd, 591 F. App'x 21 (2d Cir. 2015).
It is also worth noting that, without explicitly discussing the effect of Krupski, the Second
Circuit has cited Barrow on the relation back doctrine in other cases decided after Krupski,
further demonstrating Barrow’s continued viability. See Hogan, 738 F.3d at 517-18;
Southerland v. City of New York, 680 F.3d 127, 139 n.12 (2d Cir. 2012). Applying Barrow here,
the Court concludes that Plaintiff has not satisfied the third prong of the Rule 15(c) test since the

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Plaintiffs’ lack of knowledge as to the identity of Inspector Belfort is not a mistake within the
meaning of the Rule. See Barrow, 66 F.3d at 470.
The Court notes that “‘[a]lthough not yet endorsed by the Second Circuit, some district
courts have found an exception to the ruling in Barrow in situations where the defendants
withheld identifying information or unreasonably delayed in producing such information.’”
Morales, 952 F. Supp. at 438 (E.D.N.Y. 2013) (quoting Feliciano, 2013 WL 1310399 at *9)
(collecting cases). Here, there is no evidence in the record that the Queens County Defendants
unreasonably delayed discovery or prevented Plaintiff from obtaining discovery materials. On
March 11, 2011, this Court directed the Queens County Defendants to provide Plaintiff with the
records they received in response to a N.Y.C.P.L. § 160.50 release executed by Plaintiff
regarding Plaintiff’s criminal action in Supreme Court, Queens County. DE 67. Accordingly, on
March 25, 2011, the Queens County Defendants provided Plaintiff with 364 pages of documents
from the Queens County District Attorney’s Office. See DE 79. The Queens County Defendants
represented that they had turned over all of the necessary documents to Plaintiff, and that no
other documents relating to Plaintiff’s arrest and prosecution in Queens County had been
provided to them. Id. In response to a motion for sanctions filed by Plaintiff, who believed he
had not received the entire “court file” from the Queens County Defendants, see DE 77, this
Court found that the Queens County Defendants had complied with their obligation to produce
Plaintiff’s criminal file. DE 85. Accordingly, the Court denied Plaintiff’s motion for sanctions.
DE 85.
The Court notes that it cannot be certain that information regarding Inspector Belfort was
included in the Queens County Criminal file provided to Plaintiff in March 2011. However, it is
highly likely that such information was included in the criminal file provided to Plaintiff, since

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Inspector Belfort testified in the criminal court action. See DE 115. The Court also points out
that this information was provided in March 2011, before the expiration of the three-year statute
of limitations period. In any case, other than Plaintiff’s general allegations that the Queens
County Defendants have “delayed discovery,” Plaintiff has pointed to no specific actions
undertaken by the Queens County Defendants indicating that the Queens County Defendants
“completely rebuffed or substantially delayed” discovery, or failed to provide relevant
information until the expiration of the statute of limitations. Compare Archibald v. City of
Hartford, 274 F.R.D. 371, 381–82 (D. Conn. 2011) (granting leave to amend where defendant's
counsel “completely rebuffed or substantially delayed” plaintiff's efforts to discover the identities
of officers with whom he interacted); Byrd v. Abate, 964 F. Supp. 140, 145–46 (S.D.N.Y.1997)
(granting leave to amend where plaintiff requested identifying information prior to expiration of
limitations period, but defendant failed to provide it until period expired).
Even if the Court found that Defendants had delayed discovery such that an exception to
the ruling in Barrow exists, the Plaintiff cannot satisfy the second prong of the relation back test
in any event. As noted, “[i]n order to satisfy the second prong of the relation back test, a plaintiff
must demonstrate that ‘within the period provided by Rule 4(m) for serving the summons and
complaint’ . . . the newly named defendant must have ‘received such notice of the action that it
will not be prejudiced in defending on the merits.’” Feliciano, 2013 WL 1310399, at *8 (citing
Krupski, 130 S. Ct. at 2491–92 (quoting Rule 15(c)(1)(C) (I)). Although actual notice is
preferable, constructive notice may be sufficient. Curry v. Campbell, No. 06–CV–2841, 2012
WL 1004894, at *3 (E.D.N.Y. Mar. 23, 2012); Smith v. Westchester Cnty. Dep't of Corr., No.
07–CV–1803, 2012 WL 527222, at *4 (S.D.N.Y. Feb. 15, 2012). “Constructive notice is derived
from the presumed knowledge of the attorney who represents the original defendant(s) and who

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would represent the prospective defendant(s) if leave to amend were granted.” Smith, 2012 WL
527222 at *4; Archibald, 264 F.R.D. at 380. Knowledge of the lawsuit will be imputed to the
attorney who represents the original defendants “so long as there is some showing that the
attorney knew that additional defendants would be added to the existing suit.” Smith, 2012 WL
527222 at *5; Byrd, 964 F. Supp. at 140; Rodriguez, 2011 WL 4344057, at *7. The key inquiry
is whether the attorney had sufficient knowledge of the identity of the defendant to enable him or
her to inform the prospective defendant of the lawsuit and take steps to begin preparing a
defense. See Velez v. Fogarty, No. 06–CV–13186, 2008 WL 5062601, at *6 (S.D.N.Y. Nov. 20,
2008); Archibald, 264 F.R.D. at 380; Curry, 2012 WL 1004894, at *4.
Here, Plaintiff has not argued that Inspector Belfort had actual notice of the Complaint
within the relevant time period. The evidence in the record indicates that Inspector Belfort did
not receive actual notice of the Complaint. Further, the Court finds that Inspector Belfort has not
had constructive notice of the Complaint. Inspector Belfort is an employee of the U.S. Postal
Service, apparently sued in his individual capacity. Thus, counsel for the existing Defendants,
representing Queens and Nassau County employees, could not have received “constructive
notice” of the lawsuit on behalf of Inspector Belfort, because they were not representing
Inspector Belfort, a federal employee. In fact, all of the correspondence concerning Inspector
Belfort in this action has come from the U.S. Attorney’s Office. Further, even if Inspector
Belfort were to be represented by the same counsel as the other Defendants in this action, due to
the nature of the original Complaint, there is no way that counsel could have “had sufficient
knowledge of the identity of the defendant to enable him or her to inform the prospective
defendant of the lawsuit and take steps to begin preparing a defense.” See Velez, 2008 WL
5062601, at *6; Archibald, 264 F.R.D. at 380; Curry, 2012 WL 1004894, at *4. The reason is

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that the Complaint contained no references to “John Doe 5” other than in the caption. See DE 1.
The Complaint references John Does 1-3 on a number of occasions, and refers generally to the
“individual defendants.” See id. However, “John Doe 5” is never referred to in the body of the
Complaint. Therefore, there is no way that counsel for the Queens or Nassau County defendants
could have had sufficient knowledge that “John Doe 5” was Inspector Belfort. As such, Plaintiff
cannot satisfy the second prong of the relation back test.
V.

CONCLUSION
Based on the foregoing factors, Plaintiff’s request that the Court extend Plaintiff’s time to

serve defendant Postal Inspector Ysento Belfort with the Summons and Second Amended
Complaint is DENIED.
SO ORDERED:
Dated: Central Islip, New York
April 15, 2016
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
United States Magistrate Judge

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