Triplett v. Ash et al

Filing 77

DECISION AND ORDER: ORDERED that plaintiff's motion for reconsideration (Dkt. No. 74 ) is DENIED in all respects. Signed by U.S. District Judge Mae A. D'Agostino on 3/19/2019. (Decision and Order mailed to plaintiff by regular mail). (rar)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
OMAR TRIPLETT,
a/k/a The Doctor,
Plaintiff,
v.

9:17-CV-0656
(MAD/TWD)

CHAD ASH, et al.,
Defendants.
APPEARANCES:
OMAR TRIPLETT
01-A-2100
Plaintiff, pro se
Sullivan Correctional Facility
Box 116
Fallsburg, NY 12733
HON. LETITIA JAMES
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, NY 12224

CHRISTOPHER J. HUMMEL, ESQ.
Ass't Attorney General

MAE A. D'AGOSTINO
United States District Judge
DECISION and ORDER
I.

BACKGROUND
Plaintiff Omar Triplett commenced this action by filing a pro se complaint pursuant to

42 U.S.C. § 1983 ("Section 1983"), together with an application to proceed in forma pauperis.
Dkt. No. 1 ("Compl."), Dkt. No. 4 ("IFP Application"). By Decision and Order filed August 29,

2017, plaintiff's IFP Application was granted, and following review of the complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b), certain of the claims and defendants
were dismissed, and the Court directed service and a response to the claims that survived
sua sponte review. Dkt. No. 12 (the "August 2017 Order").
Following the issuance of the August 2017 Order, the named defendants were served
and an answer was filed on their behalf. See Dkt. No. 27. On November 6, 2017, Magistrate
Judge Therese Wiley Dancks issued a Mandatory Pretrial Discovery and Scheduling Order.
Dkt. No. 28. Thereafter, the parties engaged in discovery and plaintiff filed various discovery
motions. See Dkt. Nos. 29, 34, 45, 50.
On or about August 27, 2018, plaintiff filed a motion to amend his complaint, together
with a proposed amended complaint. See Dkt. No. 51 at 1-2 ("Motion to Amend"); Dkt. No.
51 at 3-9 ("Prop. Am. Compl.").1 Defendants opposed the Court's acceptance of the
proposed amended complaint. Dkt. No. 53 ("Opposition to the Motion to Amend").
By Decision and Order filed November 30, 2018, the Court evaluated the sufficiency of
plaintiff's proposed amended pleading and granted in part and denied in part plaintiff's Motion
to Amend. See Dkt. No. 65 ("November 2018 Order"). More specifically, the Court granted
the motion to the limited extent that plaintiff sought to (1) identify John Doe #2 as defendant
Williams, (2) strike paragraph 39 from the original complaint and add a new paragraph
regarding Ward 601, which is paragraph 40 in the proposed amended complaint, (3) change
the spelling of defendant Perpenelli to "Kenny Paparrella[,]" and (4) include a request for
punitive damages. Id. at 21-22. The Court denied the Motion to Amend to the extent plaintiff

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Plaintiff also submitted exhibits with his proposed amended complaint. See Dkt. No. 51-4.

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sought to amend his complaint to (1) re-assert claims that were dismissed in the August 2017
Order, and (2) substitute two individuals in place of the defendants named in the original
complaint as John Doe #1 and John Doe #3. Id. at 6, 20-22.
Presently before the Court is plaintiff's motion seeking reconsideration of the
November 2018 Order to the extent that Order denied plaintiff's Motion to Amend, which
defendants have opposed. Dkt. No. 74 ("Motion for Reconsideration"); Dkt. No. 75
("Opposition to Motion for Reconsideration").
II.

MOTION FOR RECONSIDERATION
A court may justifiably reconsider its previous ruling if: (1) there is an intervening

change in the controlling law; (2) new evidence not previously available comes to light; or (3)
it becomes necessary to remedy a clear error of law or to prevent manifest injustice.
Delaney v. Selsky, 899 F. Supp. 923, 925 (N.D.N.Y. 1995) (McAvoy, C.J.) (citing Doe v. New
York City Dep't of Soc. Servs., 709 F.2d 782, 789 (2d Cir. 1983)). The standard for granting
a motion for reconsideration is strict. Shrader v. CSX Transportation, Inc., 70 F.3d 255, 257
(2d Cir. 1995). A motion for reconsideration "should not be granted where the moving party
seeks solely to relitigate an issue already decided." Id.2 Thus, a motion for reconsideration is
not to be used for "presenting the case under new theories, securing a rehearing on the
merits, or otherwise taking a 'second bite at the apple.'" Sequa Corp. v. GBJ Corp., 156 F.3d
136, 144 (2d Cir. 1998).
Plaintiff does not suggest that there has been an intervening change in the controlling

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Generally, motions for reconsideration are not granted unless "the moving party can point to controlling
decisions or data that the court overlooked - matters, in other words, that might reasonably be expected to alter
the conclusion reached by the court." Shrader, 70 F.3d at 257.

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law, nor has he presented new evidence which was not previously available. Rather, plaintiff
argues that the Court committed a clear error of law in not allowing him to amend his
complaint to substitute two individuals in place of the defendants named in the original
complaint as John Doe #1 and John Doe #3. See Motion for Reconsideration. In support of
his motion, plaintiff provides additional factual statements and documentary evidence that
were not included in his Motion to Amend, and raises the following arguments for why the
Court committed a clear error of law: (1) the applicable limitations period should have been
tolled pursuant to CPLR § 208 because plaintiff was "mentally incapacitated" for a period of
time; (2) the two defendants plaintiff sought to add by way of amendment in place of two
"Doe" defendants were not "new" defendants but rather "the same old ones" he was unable
to name in his original complaint and therefore the claims against these two individuals relate
back to the filing date of the original complaint pursuant to Rule 15(c) of the Federal Rules of
Civil Procedure; (3) the claims against the two individuals named in the proposed amended
complaint in place of John Doe #1 and John Doe #3 relate back to the filing date of the
original complaint pursuant to CPLR § 1024; (4) CPLR § 306-b allows for amendment of a
complaint and extension of the applicable limitations period in the interests of justice; and (5)
the Supreme Court's Decision in Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485 (2010),
makes clear that the relation back doctrine applies to plaintiff's proposed claims against the
two individuals named in the proposed amended complaint in place of John Doe #1 and John
Doe #3. Id.
The Court considered and rejected the first three arguments raised by plaintiff in the
November 2018 Order. The additional factual statements and documentary evidence
provided by plaintiff in support of his Motion for Reconsideration do not present a basis for
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reconsideration of the determinations made in the November 2018 Order.
With respect to plaintiff's reliance on CPLR § 306-b, that statute governs the time for
service of a pleading under New York law. As discussed in the November 2018 Order, the
deadline for service of a pleading in a federal action is governed by Rule 4(m) of the Federal
Rules of Civil Procedure. See also Vasconcellos v. City of N.Y., No. 12-CV-8445, 2014 WL
4961441, at *10 (S.D.N.Y. Oct. 2, 2014) (explaining that § 306-b is "not a true tolling
provision" but is rather "a state-law analog of Fed. R. Civ. P. 4(m)"). In any case, "[t]o obtain
the benefit[ ] of §[ ] 306-b . . . [plaintiff] needed to undertake a diligent effort to identify the
[John Doe] Defendants before [the expiration of the statute of limitations]." Id. at *11. As
noted in the November 2018 Order, plaintiff waited until five days before the expiration of the
limitations period to commence this action, and did not undertake a diligent effort to obtain
the proper names of John Doe #1 and John Doe #3 before commencing suit. See November
2018 Order at 11, 17-18. Plaintiff's Motion for Reconsideration does not address the Court's
lack of diligence finding.3
With respect to plaintiff's reliance on the Supreme Court's Decision in Krupski, more
than two years after that case was decided, the Second Circuit decided Hogan v. Fischer,
738 F.3d 509 (2d Cir. 2013), which was cited at length in the November 2018 Order. In
Hogan, the Second Circuit applied the rule articulated in Barrow v. Wethersfield Police
Department, 66 F.3d 466 (2d Cir. 1995) that an amendment to replace a John Doe defendant
is made "not to correct a mistake but to correct a lack of knowledge" and is therefore not a

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A review of the docket in an action previously commenced by plaintiff in this District also confirms that
plaintiff was well aware of his obligation to properly name "Doe" defendants. See Triplett v. Rendle,
9:09-CV-01396, Dkt. No. 31 (N.D.N.Y. filed Dec. 10, 2010).

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mistake under Rule 15(c)(1)(C). See Hogan, 738 F.3d at 518 (citing Barrow, 66 F.3d at 470).
Since Hogan was decided, and as recently as last month, the Second Circuit has continued
to hold that "Krupski neither abrogated nor reconfigured Barrow's holding that an amendment
to replace a John Doe defendant is made 'not to correct a mistake but to correct a lack of
knowledge' and is therefore not a mistake under Rule 15(c)(1)(C)." Ceara v. Deacon, __
F.3d __, 2019 WL 758287, at *3 (2d Cir. 2019) (citing Barrow, 66 F.3d at 470).4
Based on the foregoing, and after thoroughly reviewing plaintiff's motion and affording
it due consideration in light of his status as a pro se litigant, the Court finds that plaintiff
presents no basis for reconsideration of the November 2018 Order. Based upon a review of
the relevant law and its application to the facts of this case, the Court concludes that its
previous decision was legally correct and did not work a manifest injustice. Thus, plaintiff's
Motion for Reconsideration is denied in its entirety.
III.

CONCLUSION
WHEREFORE, it is hereby
ORDERED that plaintiff's motion for reconsideration (Dkt. No. 74) is DENIED in all

respects; and it is further

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In Ceara, the Second Circuit held that the district court "erred by treating Ceara's complaint as a true
'John Doe' complaint for the purposes of 'mistake' under Rule 15(c)(1)(C)" where plaintiff's original complaint
incorrectly referred to a corrections officer as "Deagan" instead of "Deacon," but "contained details identifying
Deacon, including that he had a brother who worked at the facility, that he was the younger of the two brothers,
and that he worked at Downstate on September 5, 2010 on the 7:00am-3:00pm shift in a particular area of the
facility." Ceara, 2019 WL 758287, at *4. The Court found that under such circumstances, it was "implausible
that DOCCS and Deacon did not know to whom Ceara was referring." Id. "Consequently, no 'new' party was
added." Id. (concluding "that Ceara's complaint was not a true 'John Doe' complaint subject to the
no-relation-back rule of Barrow, and the District Court erred by treating it as such"). In this case, plaintiff did not
make a mistake as to the identity of either John Doe #1 or John Doe #3 when he commenced suit. Rather, he
was initially unaware of the true identity of these individuals, which is precisely the situation that Barrow deals
with.

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ORDERED that the Clerk shall serve a copy of this Decision and Order on the parties.
IT IS SO ORDERED.
Dated: March 19, 2019
Albany, NY

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