Tolbert v. Koenigsmann et al
Filing
90
DECISION AND ORDER: ORDERED, that plaintiff's Motion (Dkt. No. 88 ) to amend his Complaint is GRANTED. ORDERED, that plaintiff's claims against Pena are DISMISSED without prejudice and the Clerk of the Court is directed to remove Pena as a defendant herein. ORDERED, that the Amended Complaint (Dkt. No. 88-2) together with the supporting Exhibits (Dkt. Nos. 1-1; 88-1) is accepted for filing and is deemed the operative pleading. ORDERED, that the Clerk of the Court is directed to c reate a new docket entry for the Amended Complaint. ORDERED, that the Clerk shall issue a summons and forward it, along with copies of the Amended Complaint, to the United States Marshal for service upon Towler. The Clerk shall forward a copy of th e summons and Amended Complaint to the Office of the New York Attorney General, together with a copy of this Decision and Order. ORDERED, that plaintiff's Motion (Dkt. No. 47 ) for summary judgment and defendants' Cross-Motion (Dkt. No. 67 ) for summary judgment are DENIED as moot. Signed by Senior Judge Lawrence E. Kahn on 1/15/16. (served on plaintiff by regular mail) (alh, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEMERIS TOLBERT,
Plaintiff,
-against-
9:13-cv-1577 (LEK/DEP)
CARL J. KOENIGSMANN, et al.,
Defendants.
DECISION and ORDER
I.
INTRODUCTION
Plaintiff Demeris Tolbert (“Plaintiff”) commenced this pro se civil rights action alleging
violations of his constitutional rights arising out of his confinement by the New York State
Department of Corrections and Community Supervision (“DOCCS”). Dkt. No. 1 (“Complaint”). In
a Memorandum-Decision and Order filed June 30, 2014, the Court granted Plaintiff’s Application to
proceed in forma pauperis and reviewed the sufficiency of the Complaint in accordance with 28
U.S.C. §§ 1915(e) and 1915A. Dkt. No. 10 (“June Order”). The Court found that the following
claims survived sua sponte review: (1) Eighth Amendment medical care claims against Defendants
Nurse William Parmer (“Parmer”), Nurse R. Holmes (“Holmes”), Doctor R. Adams (“Adams”),
Physical Therapist William Pena (“Pena”), Physician’s Assistant Steven Fries (“Fries”), Doctor
Glenn Schroyer (“Schroyer”) and Doctor Carl Koenigsmann (“Koenigsmann”); and (2) retaliation
claims against Holmes. June Order at 10. The Court directed the Clerk to issue summonses and
forward them, along with copies of the Complaint, to the United States Marshal for service upon
Defendants. Id. On October 21, 2014, Adams, Fries, Holmes, Koenigsmann, Parmer, Schroyer, and
Pena filed an Answer to the Complaint. Dkt. No. 33 (“Answer”). On March 16, 2015, Plaintiff
filed a Motion for summary judgment. Dkt. No. 47. On July 20, 2015, Defendants filed a CrossMotion for summary judgment. Dkt. No. 67. Presently before the Court is Plaintiff’s Motion for
leave to amend the Complaint. Dkt. No. 88 (“Motion”). Defendants have not opposed the Motion.
II.
MOTION TO AMEND
A. The Original Complaint
The original Complaint asserted claims arising out of Plaintiff’s confinement at Upstate
Correctional Facility (“Upstate C.F.”). The Complaint contained Eighth Amendment claims against
Parmer, Holmes, Adams, Pena, Fries, Schroyer, and Koenigsmann related to Plaintiff’s medical
treatment from July 2011 through July 2013. See Compl. Plaintiff also claimed that Defendants
retaliated against him for filing numerous grievances and complaints related to his medical
treatment. Id. ¶¶ 45-46. Relevant to the Motion herein, Plaintiff claimed that on June 25, 2012,
Plaintiff was referred to Pena, a physical therapist, for pain and difficulty walking. Id. ¶ 47. Pena
did not examine Plaintiff but recommended a knee brace. Id. ¶ 51.
B. Governing Legal Standard
The filing of amended and supplemental pleadings is governed by Rule 15 of the Federal
Rules of Civil Procedure. FED. R. CIV. P. 15. Rule 15(a) states that leave to amend shall be freely
given “when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu,
11 F.3d 1127, 1133 (2d Cir. 1993). The Supreme Court has stated:
In the absence of 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, futility of amendment, etc.—the leave sought should . . .
be “freely given.”
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Foman, 371 U.S. at 182. Notwithstanding the familiar and well-accepted precept that such leave
should be granted freely and amendment is typically permitted, where a claim contained in a
proposed amended complaint would be vulnerable in the face of a Rule 12(b)(6) motion, then
allowing amendment would be an act of futility which should not be countenanced. See, e.g.,
Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996); In re Boesky Sec. Litig., 882 F.
Supp. 1371, 1379 (S.D.N.Y. 1995). If, on the other hand, a proposed claim sets forth facts and
circumstances which may entitle the pleader to relief, futility is not a proper basis on which to deny
the right to amend. Saxholm, 938 F. Supp. at 124 (citing Allstate Ins. v. Administratia Asigurarilor
De Stat, 875 F. Supp. 1022, 1029 (S.D.N.Y. 1995); Mathon v. Marine Midland Bank, N.A., 875 F.
Supp. 986, 1003 (E.D.N.Y. 1995) (granting leave to replead where court could not say that under no
circumstances would proposed claims provide a basis for relief)). The decision to grant or deny a
motion to amend or supplement is committed to the sound discretion of the trial court, and that
court’s decision is not subject to review on appeal except for abuse of discretion. See Fielding v.
Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007).
“If a complaint is amended to include an additional defendant after the statute of limitations
has run, the amended complaint is not time barred if it ‘relates back’ to a timely filed complaint.”
VKK Corp. v. Nat’l Football League, 244 F.3d 114, 128 (2d Cir. 2001). An amended complaint
naming a new party relates back to the original pleading where it asserts a claim that arose out of the
same conduct, transaction, or occurrence set out in the initial complaint, and, within the relevant
period provided by Rule 4(m) for serving the summons and complaint, the party to be added “(i)
received such notice of the action that it will not be prejudiced in defending on the merits; and (ii)
knew or should have known that the action would have been brought against it, but for a mistake
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concerning the proper party’s identity.” Lewis v. City of New York, No.12-CV-2836, 2013 WL
6816615, at *4 (E.D.N.Y. Dec. 24, 2013). “[K]nowledge of a lawsuit can be imputed to a new
defendant state official through his attorney, when the attorney also represented the officials
originally sued.” Hood v. City of New York, 739 F. Supp. 196, 199 (S.D.N.Y. 1990). The Second
Circuit has held that, “[i]n order to support an argument that knowledge of the pendency of a lawsuit
may be imputed to a defendant or set of defendants because they have the same attorney(s), there
must be some showing that the attorney(s) knew that the additional defendant would be added to the
existing suit.” Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989). “[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.” Morales v. County of Suffolk, 952 F. Supp. 2d 433, 437
(E.D.N.Y. 2013) (alterations in original) (quoting Krupski v. Costa Crociere S.p.A., 560 U.S. 538,
548 (2010)); see also Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 469 (2d Cir. 1995) (“[T]he
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 a misnomer or misidentification.”),
modified, 74 F.3d 1366 (2d Cir. 1996).
C. Plaintiff’s Motion
Plaintiff submitted a proposed Amended Complaint in support of his Motion to amend. Dkt.
No. 88-2 (“Amended Complaint”).1 Plaintiff seeks to amend his Complaint to substitute
1
Plaintiff’s Complaint included fifty pages of exhibits. Dkt. No. 1-1. Plaintiff did not
annex the documents to the proposed Amended Complaint. “Although it is well settled that an
amended complaint supersedes a prior complaint in its entirety, it is clear to the court that Plaintiff
intended to attach the exhibits to his amended complaint.” Wellington v. Langendorf, No. 12-CV1019, 2013 WL 3753978, at *3 n.2 (N.D.N.Y. July 15, 2013). To require Plaintiff to file another
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Christopher Towler (“Towler”), a physical therapist, for Pena. Mot. at 3. On November 6, 2015,
Plaintiff received a memorandum from an Office Assistant at Health Services stating that Plaintiff’s
request for medical records could not be processed because “[t]he name of the PTH provider on
6/25/12 was Christopher Towler.” Dkt. No. 88-1. Plaintiff’s proposed Amended Complaint does
not include any new factual allegations nor does it alter the causes of action surrounding the events
as they were originally pleaded in the Complaint.2 Defendants have not responded to Plaintiff’s
Motion.
D. Analysis
1. Claim Against Towler
The Court has thoroughly reviewed Plaintiff’s proposed Amended Complaint. In paragraphs
forty-seven through fifty-three, Plaintiff substituted the name “Towler” for the name “Pena.”
Plaintiff’s amendment, if granted, would change the party against whom Plaintiff’s Eighth
Amendment claim is asserted from Defendant Pena to Towler. Compare Am. Compl. at 20-22, with
Compl. at 19-21. A three-year statute of limitations governs Plaintiff’s claims. See Pearl v. City of
Long Beach, 296 F.3d 76, 79 (2d Cir. 2002) (citing N.Y. C.P.L.R. 214). In this instance, the
incident involving the proposed new party occurred on June 25, 2012. Mot. at 1-2. The proposed
Amended Complaint is dated December 10, 2015, outside the statute of limitations period. Am.
amended complaint that includes the original exhibits is “an unnecessary procedural hoop that
would waste resources and delay resolution of this action.” Alexander v. United States, No. 13-CV678, 2013 WL 4014539, at *4 n.3 (N.D. Cal. Aug. 5, 2013). In light of Plaintiff’s pro se status, the
Court will consider the exhibits and documentation attached to the original Complaint as
incorporated by reference in the proposed Amended Complaint. See Alvarado v. Ramineni, No. 08CV-1126, 2011 WL 6937477, at *5 n.9 (N.D.N.Y. Dec. 6, 2011).
2
For a full recitation of facts, the Court refers to the June Order. See June Order at 4-6.
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Compl. at 39. Thus, the amendment would be time-barred unless the Amended Complaint relates
back to the date of the original Complaint.
There is no dispute that the claims against Towler arose from the same conduct, transaction,
or occurrence asserted in Plaintiff’s original Complaint. As to notice, the issue is whether Towler
knew or should have known that Plaintiff’s Eighth Amendment claim could have been brought
against him. In this instance, based upon the Exhibit annexed to Plaintiff’s Motion, knowledge of
the identity of the physical therapist who treated Plaintiff on June 25, 2012 was available to defense
counsel representing the other Defendants in this action and may be imputed to Towler. See Smalls
v. Fraser, No. 05 Civ. 6575, 2006 WL 2336911, at *4 (S.D.N.Y. Aug. 11, 2006) (holding that the
availability of information regarding the identity of the “B” post officer to defense counsel could be
imputed to new defendant). Plaintiff claims that he only learned that he had misidentified Pena
when he received the November 2015 letter from Health Services. Mot. at 2. This is the type of
mistake contemplated by Rule 15(c)(1)( C). See Smalls, 2006 WL 2336911, at *3 (allowing
amendment as the plaintiff did not fail to name a party but instead named the wrong party).
Under Rule 15(c), Plaintiff’s amendment seeking to assert a claim against Towler relates
back to the date of the original Complaint. Accordingly, Plaintiff’s Motion to amend his Complaint
to add claims against Towler is granted.
2. Previous Claims
As a result of the initial review of the original Complaint, the Court held that Plaintiff’s
Eighth Amendment claims against Adams, Fries, Holmes, Koenigsmann, Parmer, and Schroyer and
Plaintiff’s retaliation claim against Holmes required a response. Those claims are repeated and
realleged in the Amended Complaint and thus survive initial review.
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Plaintiff’s Motion for leave to file an amended complaint is therefore granted. It does not
appear to the Court that Plaintiff has delayed unduly in bringing his Motion, the requested
amendment does not significantly change the theory of the case, and the Court is not persuaded that
resolution of this matter will be significantly delayed by the filing of the Amended Complaint. In
the event that further discovery is deemed appropriate, Defendants will be afforded a reasonable
opportunity to conduct that discovery.
III.
MOTIONS FOR SUMMARY JUDGMENT
An amended complaint “supersedes the original and renders it of no legal effect.” Int’l
Controls Corp. v. Vesco, 556 F.2d 665, 668 (2d Cir. 1977). In light of the amendment of Plaintiff’s
Complaint, the Court denies Plaintiff’s Motion for summary judgment and Defendants’ CrossMotion for summary judgment as moot.
IV.
CONCLUSION
Accordingly, it is hereby:
ORDERED, that Plaintiff’s Motion (Dkt. No. 88) to amend his Complaint is GRANTED;
and it is further
ORDERED, that Plaintiff’s claims against Pena are DISMISSED without prejudice and
the Clerk of the Court is directed to remove Pena as a defendant herein; and it is further
ORDERED, that the Amended Complaint (Dkt. No. 88-2) together with the supporting
Exhibits (Dkt. Nos. 1-1; 88-1) is accepted for filing and is deemed the operative pleading; and it is
further
ORDERED, that the Clerk of the Court is directed to create a new docket entry for the
Amended Complaint; and it is further
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ORDERED, that the Clerk shall issue a summons and forward it, along with copies of the
Amended Complaint, to the United States Marshal for service upon Towler. The Clerk shall
forward a copy of the summons and Amended Complaint to the Office of the New York Attorney
General, together with a copy of this Decision and Order; and it is further
ORDERED, that a response to the Amended Complaint be filed by Defendants, or their
counsel, as provided for in the Federal Rules of Civil Procedure; and it is further
ORDERED, that all pleadings, motions, and other documents relating to this action must
bear the case number assigned to this action and be filed with the Clerk of the United States District
Court, Northern District of New York, 7th Floor, Federal Building, 100 S. Clinton St., Syracuse,
New York 13261-7367. Any paper sent by a party to the Court or the Clerk must be
accompanied by a certificate showing that a true and correct copy of same was served on all
opposing parties or their counsel. Any document received by the Clerk or the Court which
does not include a proper certificate of service will be stricken from the docket. Plaintiff must
comply with any requests by the Clerk’s Office for any documents that are necessary to maintain
this action. All parties must comply with Local Rule 7.1 of the Northern District of New York in
filing motions. Plaintiff is also required to promptly notify the Clerk’s Office and all parties
or their counsel, in writing, of any change in his address; failure to do so will result in the
dismissal of his action; and it is further
ORDERED, that Plaintiff’s Motion (Dkt. No. 47) for summary judgment and Defendants’
Cross-Motion (Dkt. No. 67) for summary judgment are DENIED as moot; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on all
parties in accordance with the Local Rules.
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IT IS SO ORDERED.
DATED:
January 15, 2016
Albany, New York
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