Gssime v. Dr. Watson et al

Filing 129

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; For the foregoing reasons, Plaintiff's objections are OVERRULED and the Court ADOPTS Magistrate Judge Brown's R&R in its entirety. Plaintiff's motion to amend (Docket Entry 114) is therefore DENIED. Defendant known as Dr. Watson is DISMISSED WITH PREJUDICE. So Ordered by Judge Joanna Seybert on 6/24/2015. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SAID GSSIME,
Plaintiff,
-against-

MEMORANDUM & ORDER
09-CV-5581(JS)(GRB)

NASSAU COUNTY,

Defendant.
----------------------------------X
APPEARANCES
For Plaintiff:
Said Gssime, pro se
The Bowery Mission Transitional Services
45-51 Avenue D
New York, NY 10009
For Defendant:

Lora M. Ben-Sorek, Esq.
Peter A. Laserna, Esq.
Nassau County Attorney’s Office
One West Street
Mineola, NY 11501

SEYBERT, District Judge:
Pro se plaintiff Said Gssime (“Plaintiff”) commenced
this

action

on

December

21,

2009

alleging

constitutional

violations related to his living conditions and access to medical
care during his incarceration at the Nassau County Correctional
Center (“NCCC”).

On August 12, 2014, Plaintiff moved to file a

Second Amended Complaint in order to add “the true identity of Dr.
Watson.”

(Docket Entry 114.)

On December 16, 2014, Magistrate

Judge Gary R. Brown issued a Report and Recommendation (“R&R”)
recommending that the motion be denied.

(Docket Entry 120.)

For

the following reasons, the R&R is ADOPTED in its entirety and
Plaintiff’s motion to amend is DENIED.
BACKGROUND
The Court presumes familiarity with the facts of this
case, which are detailed in the Court’s March 19, 2013 Memorandum
and Order.

See Gssime v. Watson, No. 09-CV-5581, 2013 WL 1148874,

at *1 (E.D.N.Y. Mar. 19, 2013).
action

against

Roman,

“Dr.

Correction

Watson,”1

and

Plaintiff originally brought this

Officer

Barten,

Nassau

County

Correction
(the

Officer

“County”

and

collectively “Defendants”).
In February 2012, the Court found deficiencies in the
original Complaint and therefore granted Plaintiff leave to amend.
(See Feb. 16, 2012 Order, Docket Entry 48.) Plaintiff filed an
Amended Complaint on February 29, 2012. (See Am. Compl., Docket
Entry 50.)
On

March

12,

2012,

Defendants

moved

for

partial

dismissal of the Amended Complaint, (see Defs.’ Mot. to Dismiss
Am. Compl., Docket Entry 51), and the Court dismissed all of
Plaintiff’s claims against Defendants except for (1) his claim for
deliberate

indifference

to

Plaintiff’s

medical

needs

against

Nassau County and (2) his claims against “Dr. Watson,” who had not

The Court presumes that Plaintiff used the name Dr. Watson in
his Complaint as a pseudonym for a doctor whose identity was
undetermined.
1

2

yet been identified.

Gissime, 2013 WL 1148874, at *3.

The Court

also (1) ordered Plaintiff to provide the Court and Defendants
with relevant information about “Dr. Watson” that could aid in her
identification

and

(2)

ordered

Defendants

to

provide

contact

information for Dr. Watson upon receipt of the information from
Plaintiff.

Id.

On April 9, 2013, Plaintiff filed a letter

describing Dr. Watson as a white female physician’s assistant in
her early thirties.
at 1.)

(Pl.’s April 3, 2013 Ltr., Docket Entry 60,

On April 17, 2013, Deputy County Attorney Peter Laserna

wrote a letter explaining that he had identified two female
physician’s assistants who could potentially be “Dr. Watson.”
However, he expressed doubt that either individual was Dr. Watson
because both physician’s assistants were merely identified because
they were female and both treated Plaintiff in July and August of
2009. (Def.’s April 17, 2013 Ltr., Docket Entry 61.) Upon receipt
of the County’s letter, the Court dismissed Plaintiff’s claims
against Dr. Watson without prejudice, but stated that the Court
would entertain a motion to amend if Plaintiff discovered the
identity of Dr. Watson during the course of discovery. (April 19,
2013 Order, Docket Entry 62.)
The case proceeded to discovery.
Docket Entry 67.)

(May 23, 2013 Order,

On October 23, 2013, Plaintiff moved to compel

the County to respond to his discovery demands, which included a
request for photos of the “physician/assistant” who could be the
3

person

Plaintiff

identified

(Docket Entry 80.)
Plaintiff’s

in

the

Complaint

as

Dr.

Watson.

Magistrate Judge Arlene R. Lindsay denied

request,

reasoning

that

“[a]t

this

juncture,

the

claims against Dr. Watson have been dismissed by the district
court, and it appears that the statute of limitations has run as
those claims.”

(Docket Entry 82 at 2.)

In a letter dated January 22, 2014, Plaintiff advised
the Court of his new address and asked the Court to “serve the
true [Identity] of the so called Dr. Watson through the U.S.
Marshall Service.”

(Docket Entry 92 (alteration in original).)

Discovery subsequently closed on March 28, 2014 and on March 31,
2014 Plaintiff indicated he was ready for trial.

(See Scheduling

Order dated August 6, 2013; Mot. for Hearing “Readiness for Trial,”
Docket Entry 98.)

The parties then filed proposed pretrial orders

in the spring of 2014.

(See Docket Entries 102, 105.)

On August 12, 2014 Plaintiff moved to file a Second
Amended Complaint in an effort to replace Dr. Watson with the names
of two physician’s assistants--Dr. D. Kutcher and Dr. W. Kupec.
(Mot. to Amend, Docket Entry 114 at 1.)

The undersigned referred

Plaintiff’s motion to amend to Judge Lindsay on September 11, 2014.
(Docket Entry 117.)
case

on

September

Judge Lindsay then recused herself from the
18,

2014

and

Magistrate Judge Brown.

4

the

case

was

reassigned

to

Judge Brown subsequently issued his R&R recommending
that Plaintiff’s motion be denied.

Judge Brown reasoned that the

statute of limitations had run with respect to Plaintiff’s claims
against Dr. D. Kutcher and Dr. W. Kupec, and Plaintiff could not
show that his claims against the physician’s assistants fell into
an exception that could extend the limitation period.
9.)

(R&R at 6-

As Judge Brown explained:
Here, reading plaintiff’s submissions to
raise the strongest arguments they suggest,
plaintiff’s claims against the two individuals
that he submits to be Dr. Watson are timebarred. The undersigned notes that before a
discovery schedule was issued on this case,
the
Court
entertained
various
motions
regarding Dr. Watson, including a [motion for]
default judgment against Dr. Watson, and
court-assisted discovery of Dr. Watson. Yet,
during this time pro se plaintiff failed to
provide enough information to identify Dr.
Watson besides race and gender--not to mention
plaintiff’s use of “Dr. Watson” to designate
two people. Dr. Watson’s acts took place in
July 2009--five years before plaintiff’s
motion to file a second amended complaint.
Therefore, his claims against Dr. Watson are
time-barred.

(R & R at 8.)
Plaintiff has filed objections to Judge Brown’s R&R.
Plaintiff specifically argues that Court should not adopt Judge
Brown’s R&R and should allow him to file a Second Amended Complaint
because: (1) the County has delayed this case by refusing to comply
with its discovery obligations, and (2) at this juncture we now
“know that Dr. Watson [sic] true name is Dr. D. KUTCHER, AND HER
5

Assistant Dr. W. KUPEC.”

(Pl.’s Obj., Docket Entry 122, ¶¶ 2-3.)

Defendants did not file an opposition to Plaintiff’s objections.
DISCUSSION
The Court will first address the standard of review
before turning to Plaintiff’s objections specifically.
I.

Standard of Review
“When evaluating the report and recommendation of a

magistrate judge, the district court may adopt those portions of
the report to which no objections have been made and which are not
facially erroneous.”

Walker v. Vaughan, 216 F. Supp. 2d 290, 291

(S.D.N.Y. 2002) (citation omitted).
specific,

written

objections

to

A party may serve and file
a

magistrate’s

report

and

recommendation within fourteen days of receiving the recommended
disposition.

See FED. R. CIV. P. 72(b)(2).

Upon receiving any

timely objections to the magistrate’s recommendation, the district
“court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C); see also FED. R. CIV. P. 72(b)(3).

28

A party

that objects to a report and recommendation must point out the
specific portions of the report and recommendation to which they
object.

See Barratt v. Joie, No. 96-CV-0324, 2002 WL 335014, at

*1 (S.D.N.Y. Mar. 4, 2002) (citations omitted).
When a party raises an objection to a magistrate judge’s
report, the Court must conduct a de novo review of any contested
6

sections of the report.

See Pizarro v. Bartlett, 776 F. Supp.

815, 817 (S.D.N.Y. 1991).
or

general

objections,

But if a party “makes only conclusory
or

simply

reiterates

his

original

arguments, the Court reviews the Report and Recommendation only
for clear error.”

Pall Corp. v. Entegris, Inc., 249 F.R.D. 48, 51

(E.D.N.Y. 2008) (internal quotation marks and citation omitted).
Furthermore, even in a de novo review of a party’s specific
objections, the Court ordinarily will not consider “arguments,
case law and/or evidentiary material which could have been, but
[were]

not,

instance.”

presented

to

the

magistrate

judge

in

the

first

Kennedy v. Adamo, No. 02-CV-1776, 2006 WL 3704784, at

*1 (E.D.N.Y. Sept. 1, 2006) (internal quotation marks and citation
omitted).
II.

Plaintiff’s Objections
As noted, Plaintiff claims (1) that the County has

delayed

this

case

by

refusing

to

comply

with

its

discovery

obligations, and (2) Plaintiff should be allowed to amend his
complaint because we now “know that Dr. Watson [sic] true name is
Dr. D. KUTCHER, AND HER Assistant Dr. W. KUPEC.”

(Pl.’s Obj. ¶¶ 2-

3.) The Court will liberally construe Plaintiff’s arguments as
arising under Federal Rule of Civil Procedure 15.

So construed,

Plaintiff asserts that the statute of limitations should not bar
his claims against Dr. Kutcher and Dr. Kupec because his claims
should relate back to the date Plaintiff filed his original
7

Complaint.

The Court will therefore analyze Plaintiff’s claim

under Rule 15(c).
A.

Rule 15(c)(1)(C)
Rule 15(c) provides the federal standard for relation

back.

For an amended complaint adding a new party to relate back

to the date the original complaint under Rule 15(c)(1)(C), the
following conditions must be 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 120
days of the filing of the original complaint,
and . . . the original complaint [was] filed
within the limitations period.
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (emphasis and
alterations in original) (quoting Barrow v. Wethersfield Police
Dept., 66 F.3d 466, 468–69 (2d Cir. 1995)).

However, the Second

Circuit has held that “Rule 15(c) explicitly allows the relation
back of an amendment due to a ‘mistake’ concerning the identity of
the parties . . . , but the failure to identify individual
defendants when the plaintiff knows that such defendants must be
named cannot be characterized as a mistake.”
470.

Barrow, 66 F.3d at

The Advisory Committee Notes to the 1991 Amendment to Rule

15(c)(3) explain that the type of “mistake” intended by the Rule

8

is a “misnomer or misidentification” of a party’s name.
CIV. P. 15;

FED. R.

see also Phoomahal v. Ridgehaven Vill., No. 04-CV-

2083, 2007 WL 2292741, at *5 (E.D.N.Y. Aug. 9, 2007) (holding that
lack of knowledge of a party’s name was not the type of “mistake”
contemplated by Federal Rule of Civil Procedure 15(c)(1)(C)).
Here, the evidence suggests that Plaintiff used the name Dr. Watson
as a pseudonym or placeholder because he did not know the name of
the doctor he actually wished to sue.

That much is apparent from

Plaintiff’s discovery requests and submissions seeking to identify
Dr. Watson.

Plaintiff therefore cannot meet the third prong on

the test under Federal Rule of Civil Procedure 15(c)(1)(C) because
he was not mistaken about Dr. Watson’s identity--rather, he did
not know Dr. Watson’s true identity.
B.

Rule 15(c)(1)(A)
An amendment can also be deemed to relate back to the

date of the original complaint if “the law that provides the
applicable statute of limitations allows relation back.”
CIV. P. 15(c)(1)(A).

FED. R.

Here, the applicable three-year statute of

limitations for a 1983 action is provided by state law.

Shomo v.

City of New York, 579 F.3d 176, 181 (2d Cir. 2009) (“The statute
of limitations for claims brought under Section 1983 is governed
by state law, and in this case is the three-year period for
personal injury actions under New York State law.”).

Therefore we

must look to New York State law to determine whether to allow
9

relation back in this case.

Hogan, 738 F.3d at 518.

The New York

Civil Practice Law and Rules (“CPLR”) contains a specific provision
relating to claims against “John Doe” defendants.

Section 1024 of

the CPLR provides:
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.
‘‘To take advantage of § 1024, a party must meet two requirements.’’
Hogan, 738 F.3d at 519.

First, the party must ‘‘exercise due

diligence, prior to the running of the statute of limitations, to
identify the defendant by name,’’ and second ‘‘the party must
describe the John Doe party in such a form as will fairly apprise
the party that [she] is the intended defendant.’’ Id. (internal
citations and quotation marks omitted).

Here, Plaintiff cannot

meet the second prong of the test because he now seeks to add two
separate individuals to this lawsuit even though he previously
described Dr. Watson as a single individual in both his original
Complaint and his Amended Complaint.

Even Plaintiff’s letter

seeking discovery concerning the identity of Dr. Watson described
her as a single person.

Thus, Plaintiff’s descriptions of Dr.

Watson in the original Complaint and the Amended Complaint were
insufficient to fairly apprise both Dr. Kutcher and Dr. Kupec that
they could be defendants in this case.
10

See Bumpus v. New York

City Transit Auth., 66 A.D.3d 26, 30, 883 N.Y.S.2d 99, 104 (2d
Dep’t 2009) (holding that “an insufficient description subjects
the ‘Jane Doe’ complaint to dismissal for being jurisdictionally
defective”); Lebowitz v. Fieldston Travel Bureau, Inc., 181 A.D.2d
481, 482, 581 N.Y.S.2d 302, 303 (1st Dep’t 1992) (explaining that
John Doe defendants must be “adequately described” such that they
“would have known, from the description in the complaint, that
they were the intended defendants” (quotation marks and citations
omitted)).
Because Plaintiff cannot satisfy either test permitting
relation back under Federal Rule of Civil Procedure 15, his
objections are OVERRULED.
CONCLUSION
For the foregoing reasons, Plaintiff’s objections are
OVERRULED and the Court ADOPTS Magistrate Judge Brown’s R&R in its
entirety.

Plaintiff’s motion to amend (Docket Entry 114) is

therefore DENIED.

Defendant known as Dr. Watson is DISMISSED WITH

PREJUDICE.
SO ORDERED.

Dated:

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.

June
24 , 2015
Central Islip, NY

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