Arroyo v. Police Officer John Doe et al

Filing 65

DECISION AND ORDER. I adopt Judge Shields R&R in its entirety, and deny the plaintiff's request to amend his complaint. Ordered by Judge Ann M. Donnelly on 1/11/2018. (Greene, Donna)

FILED
IN CLERK'S OFFICE
US DISTRICT COURT E.D.N.Y.

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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JAN 1 1 2018

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BROOKLYN OFFICE
GUSTAVO ARROYO
Plaintiff,

- against -

POLICE OFFICER CARMINE BELLAMORE, ET
AL,

DECISION AND ORDER

13-cv-5228 (AMD)(A YS)

Defendants.

ANN M. DONNELLY, District Judge.
The pro se plaintiff, Gustavo Arroyo, brings this civil rights action against police officers
Carmine Bellamore and James Crawford, under 42 U.S.C. § 1983, in their individual and official
capacities. The plaintiff filed his initial complaint on September 13, 20 13. (ECF No. 1.) 1 On
April 2 1, 2017, the plaintiff moved to amend his complaint to add the County of Nassau as a
defendant, and three claims of municipal liability. (ECF No. 49-2 at 1.) On June 23, 20 17,
Magistrate Judge Ann Shields issued a Report and Recommendation (" R&R"), denying the
plaintiffs request to file an amended complaint. (ECF No. 58.) The plaintiff obj ected to the
R&R on August 11 , 20 17. (ECF No. 64.)
Based on my review of the record and the parties' submissions, I agree with Judge
Shields' thorough and well-reasoned R&R. For the fo llowing reasons, I deny the plaintiff s
motion to fil e an amended complaint.

1

Th is case was reassigned to me from the Honorable Joanna Seybe1t on December 3, 20 15; and reassigned to the
Honorable Anne Y. Shields from the Honorable Gary R. Brown on March 18, 20 I 5.

BACKGROUND
This case has a somewhat convoluted procedural history, whi ch is set forth in detai l in
Judge Shields' R&R. (ECF No. 58 at 1-3.) I discuss the details that are pertinent to my decision.
The plaintiff alleges that the defendants violated his civi l rights when they used excessive force
during hi s arrest, and mistreated him during his later detention. 2 (ECF No. 1 at 1-2.) On
January 26 , 20 17, the plaintiff requested an extension to amend his complaint and add parties.
(ECF No. 38.) Judge Shields held an in-person conference on February 16, 2017, where, among
other things, she denied the plaintiffs motion to amend the complaint. (ECF No. 43; ECF No.
58 at 3.) However, because, as part of the discovery process, the defendant was going to provide
the plaintiff with certain medical records, Judge Shields instructed the plaintiff that " [i]f upon
receipt of medical records Plaintiff determines he would like to add a party, he can move to
amend the complaint at that time." (ECF No. 43.) On April 2 1, 2017, the plaintiff moved to
amend his request by adding Nassau County as a defendant, as well as asserting three claims of
municipal liability. 3 (ECF No. 49-3.) Judge Shields denied the plaintiffs request because (1)
the plaintiffs municipal liability claims are time barred by the three-year statute oflimitations,
and (2) in any event, the plaintiff's amendment would be futile, because he cannot plausibly
establish hi s mw1icipal liability claims. (ECF No . 58 at 7-8.)

2

The plaintiff claims that th e defendants "removed his shirt and fo rced him to remain in a room w ith the air
conditioning on full blast," and " torture[d]" him by denying him food, use of a bathroom, and an attorney. (ECF
No. I at 2 .)
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The plaintiff s proposed amended complaint alleges, in sum, that th e County of Nassau had an unofficial custom of
using " unnecessary/excessive force ... aga inst criminal suspects," fa iled to prope rly train its officers, and
" ignor[ed]" or took no action against pol ice misconduct. (ECF No. 49-3 at 4-5.)

2

DISCUSSION
A district court reviewing a magistrate judge's report and recommendation "may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge." Fed. R. Civ. P. 72(b).
When a magistrate judge makes a recommendation that is dispositive of a party' s claim,
the district judge must review de novo any part of the magistrate judge's decision to which a
party properly obj ects. Fed. R. Civ. P. 72(b)(3). The court may adopt any sections of the
magistrate's report to which a party did not object, as long as the magistrate's decision was not
"facially erroneous." Markey v. Lapolla Indus., Inc., No. l 2-cv-4622-JS-AKT, 2016 WL
324968, at *3 (E.D.N. Y. Jan. 26, 20 I 6) (citation omitted).

If a party does not object to a conclusion in the magistrate judge's report, the argument is
waived, and will not be reviewed. See, e.g., Johnson v. Woods, 426 F. App'x 10, 11 (2d Cir.
20 11) (citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003)). Because the plaintiff is a prose
litigant, I evaluate his submissions by a more lenient standard; however, "the leniency accorded
pro se litigants is not without limits, and all normal rules of pleading are not absolutely
suspended." Gil v. Vogilano, 131 F.Supp.2d 486, 491 (S.D.N.Y. 2001) (quoting Stinson v.

Sheriff's Dep 't, 499 F.Supp. 259, 262 (S.D.N.Y. 1980) (internal quotation marks omitted).
The plaintiff makes two related objections to the R&R. 4 First, he argues that his
municipal liability claims are not be time barred because they "relate back" to the original
complaint. Second, he objects to Judge Shields' decision that the defendants' acts, as alleged in
the complaint, are "detached from any policy, inaction or customs associated with the County of

4

I do not consider the plaintiffs c lai m that Judge Shields should not have conditioned his ability to amend his
complaint upon " new information he mi ght glean from review of medical records," (ECF No. 64 at 1-2), because
that is not the basis of Judge Shields' decision.

3

Nassau." (ECF No. 64 at 3.) I agree with Judge Shields' determination that the plaintiffs new
claims do not sufficiently relate back to his original complaint to avoid the three-year statute of
limitations period. The "touchstone" of the relation-back principle, under to Federal Rule of
Civil Procedure 15(c)(1 )(B), is notice. See US. v. The Baylor University Medical Center, 469
F.3d 263, 270 (2d Cir. 2006); Coronna v. Counly ofSuffolk, No. 05-cv-6016, 2008 WL 2371421 ,
at *3 (E.D.N. Y. June 9, 2008). Under the rule, an amendment to a complaint " relates back" to
the date of the original pleading when it "asserts a claim or defense that arose out of conduct,
transaction, or occurrence set out ... in the original pleading ...." Fed. R. Civ. P. 15(c)(1 )(B).
The plaintiffs original complaint focused exclusively on the defendants' conduct during the
plaintiffs arrest and subsequent detention, and does not mention the conduct of any other
officers. (See ECF No. I.) Moreover, the plaintiff did not allege any facts involving Nassau
County's policies, training, supervision, or internal processes. As a result, the amendment does
not relate back to the original complaint, and is time barred.
I also agree with Judge Shields that the plaintiffs allegations cannot support municipal
liability claims. To hold Nassau County liable under§ 1983, the plaintiff must show that it had a
policy or custom that caused the deprivation of his constitutional rights. See Monell v. Dept. of

Soc. Servs., 436 U.S. 658, 690- 91 (1978); Cash v. Cty. of Erie, 654 F.3d 324, 333 (2d Cir. 2011).
A single instance of unconstitutional activity is not enough to impose liability on a city unless the
plaintiff establishes that the activity was caused by an existing unconstitutional municipal policy,
which was created by a person with final decision-making authority. See, e.g. , City of

Oklahoma City v. Tuttle, 4 71 U.S. 808, 823 (1985); Berry v. Village ofMillbrook, 815 F .Supp2d
711 , 720 (S.D.N.Y. 2011) (the plaintiff"has not suggested that any municipal policymaker or
municipal policy or custom was responsible for violations of any litigants ' rights apart from

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plaintifI's own alleged experience"); Davis v. County ofNassau, 355 F.Supp.2d 668, 678
(E.D.N.Y 2005) ("A single incident involving an employee below the policymaking level will
generally not suffice to support an inference of a municipal custom or po licy.") (internal citations
omitted). Further, "mere assertions" that a municipali ty has a custom or policy of constitutional
violations without factual allegations circumstantially supporting "such an inference" are
generally not enough. See McCrory v. County ofNassau, 493 F.Supp.2d 58 1, 588 (E.D.N.Y.
2007) (internal citations and quotation marks omitted); Maloney v. County ofNassau, 623
F.Supp.2d 277, 289 (E. D.N.Y. 2007). The plaintiff does not offer any facts in hjs proposed
amended complaint that support an inference of municipal liability; he makes only conclusory
statements. Therefore, an amendment would be futil e, and I deny his motion to amend. See

Ferrara v. Smithtown Trucking Co., Inc., 29 F.Supp.3d 274, 279 (E.D.N.Y. 2014) ("a motion to
amend should be denied for ... futility of the amendment . . ."); Ross v. New York City Dept. of

Educ., 935 F.Supp.2d 508, 515 (E.D.N.Y. 20 13).
I remind the plaintiff, as Judge Shields does, that my denial of his request to amend rus
complaint does not end his case. The plaintiff is still able to pursue rus § 1983 claims against the
ind ividual defendants.

CONCLUSION
Accordingly, I adopt Judge Shields' R&R in its entirety, and deny the plaintiffs request
to amend his complaint.

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so ORDERED.

s/Ann M. Donnelly
lonnelly
States District Judge

Dated: Brooklyn, New York
January 11,2018