Flores v. Doe et al

Filing 103

OPINION AND ORDER re: 90 MOTION to Amend/Correct 1 Complaint filed by John Andrew Flores. For the foregoing reasons, Plaintiff's motion for leave to amend the FAC is GRANTED. Plaintiff is directed to file the PSAC con tained in Exhibit A of the declaration in support of his motion (see Dkt. #92-1). The Clerk of Court is directed to terminate the motion at Docket Entry 90. The parties are hereby ORDERED to appear for a status conference on March 23, 2017, at 11:00 a.m. in Courtroom 618 of the Thurgood Marshall Courthouse, 40 Foley Square, New York, New York. (As further set forth in this Opinion and Order.) ( Status Conference set for 3/23/2017 at 11:00 AM in Courtroom 618, 40 Centre Street, New York, NY 10007 before Judge Katherine Polk Failla.) (Signed by Judge Katherine Polk Failla on 3/6/2017) (mro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------X
:
JOHN ANDREW FLORES,
:
:
:
Plaintiff,
:
v.
:
:
CAPTAIN NIEVA (Shield No. 501), OFFICER :
SMITH (Shield No. 3893), OFFICER
:
MILLNER (Shield No. 7468), and OFFICER :
PADUA (Shield No. 9213),
:
:
Defendants. :
------------------------------------------------------X
:
CAPTAIN NIEVA (Shield No. 501), OFFICER :
SMITH (Shield No. 3893), OFFICER
:
MILLNER (Shield No. 7468), and OFFICER :
PADUA (Shield No. 9213),
:
:
Third-Party :
Plaintiffs,
:
:
v.
:
:
THE CITY OF NEW YORK,
:
:
Third-Party :
Defendant. :
------------------------------------------------------- X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: March 6, 2017
______________

14 Civ. 7960 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Plaintiff John Andrew Flores alleges that he was assaulted by corrections
officers while incarcerated at Rikers Island. His operative complaint, brought
pursuant to 42 U.S.C. § 1983, names only individual defendants. Now — after
the close of fact discovery — Plaintiff moves for leave to amend his complaint in
order to include a claim of municipal liability against the City of New York (the

“City”). The City opposes. Because Plaintiff has demonstrated good cause to
amend under Federal Rule of Civil Procedure 16, and the Court finds no basis
to deny leave to amend under Federal Rule of Civil Procedure 15, Plaintiff’s
motion is granted.
BACKGROUND 1
A.

Allegations in the Complaint
On October 1, 2014, Plaintiff brought a pro se § 1983 action, alleging

that he was assaulted by corrections officers while in the custody of the New
York City Department of Corrections (“DOC”) at the Robert N. Davoren
Complex’s Adolescent Mental Observation Unit on Rikers Island. (Compl. 1-4).
The Complaint alleges the following facts. Plaintiff was repeatedly
punched and kicked in the face by Corrections Officer (“C.O.”) Smith, while
Captain Nieva stood by, and then Plaintiff was “dragged” into a corridor where
there were no video cameras. (Compl. 3). There, Captain Nieva and three
unidentified corrections officers continued to assault Plaintiff, while another
officer watched. (Id.). The assault left Plaintiff with an injured jaw, swollen
face, and two black eyes. (Id.). Thereafter, he was denied medical attention for
two days. (Id.). Because Captain Nieva was present when Plaintiff was treated,
the Complaint alleges, the doctor refused to record what had actually happened

1

For convenience, the Complaint is referred to as “Compl.” (Dkt. #1); the Amended
Complaint as “FAC” (Dkt. 18); the Proposed Second Amended Complaint as “PSAC”
(Dkt. #92-1); Plaintiff’s moving brief as “Pl. Br.” (Dkt. #91); the declaration in support of
Plaintiff’s motion as “Burns Decl.” (Dkt. #92); the City’s opposition brief as “City Opp.”
(Dkt. #97); the affirmation in opposition to Plaintiff’s motion as “Noble Aff.” (Dkt. #98);
and Plaintiff’s reply brief as “Pl. Reply” (Dkt. #99).

2

to Plaintiff. (Id.). The Complaint identifies the date and time of the assault
only as: “October or November at around 12:30 A.M.” (Id. at 2). The Complaint
names as defendants Captain Nieva, C.O. Smith, and several John and Jane
Does, but not the City or DOCS. (Id. at 1).
B.

Procedural History
On October 24, 2014, this Court issued an Order of Service, which

requested that Defendants Smith and Nieva waive service of summons, and
that Plaintiff file an amended complaint specifying the date of the alleged
assault and providing other details. (Dkt. #8). The Court also directed the
Clerk of Court “to notify the New York City Department of Correction and the
New York City Law Department” of that Order. (Id.). On November 14, 2014,
Corporation Counsel appeared in this action as an “Interested Party” and
requested “that all notices and other papers be served upon” it. (Dkt. #9).
On February 6, 2015, Plaintiff filed an Amended Complaint (the “FAC”)
that was still missing certain identifying details as well as the exact incident
date, estimating only that it was in October or November of 2011. (FAC 4). On
March 20, 2015, Corporation Counsel informed the Court that it had identified
the date of the incident described in Plaintiff’s complaints and the corrections
officers present during the alleged assault — Captain Nieva and C.O. Smith as
well as C.O.’s Padua and Millner. (Dkt. #19). On May 20, 2015, the Court
directed the Clerk of Court to amend the case caption to include the
aforementioned officers and remove all John and Jane Doe defendants. (Dkt.

3

#30). All four of the individual defendants have either been served or have
waived service. (Dkt. #35, 38, 41, 83).
On August 6, 2015, C.O. Millner and C.O. Padua filed a Third-Party
Complaint against the City, which was amended the following day. (Dkt. #44,
47). The Amended Third-Party Complaint alleges that the conduct complained
of by Plaintiff occurred within the scope of the correction officers’ employment
and seeks indemnification by the City for any liability arising from Plaintiff’s
suit. (Dkt. #47).
On December 3, 2015, the Court ordered the Clerk of Court to “seek pro
bono counsel to enter a limited appearance for the purpose of conducting
certain document discovery and depositions (‘Limited Discovery Counsel’).”
(Dkt. #64 at 1). This Order set forth the scope of representation, which
“consist[ed] of defending the deposition of the plaintiff and taking the
depositions of [the individual defendants], as well as conducting document and
other discovery necessary to take or defend such depositions.” (Id. at 2). The
Order also provided that counsel “may, but is not required to, conduct
additional discovery which, in [the] exercise of his or her good faith judgment,
Limited Discovery Counsel deems necessary.” (Id.).
On January 6 and 7, 2016, two attorneys from the Kramer Levin firm
appeared in this case as Limited Discovery Counsel. (Dkt. #68, 71). On
January 7, 2016, the Court entered a Case Management Plan and Scheduling
Order, which set the deadline for fact discovery on May 6, 2016, and for expert
discovery on June 20, 2016. (Dkt. #70 at 2). The Order did not set a deadline

4

for the filing of amended pleadings, but noted that the Order “may not be
modified or the dates … extended, except by further Order of th[e] Court for
good cause shown.” (Id. at 3).
C.

The United States Attorney’s Office Investigation of Rikers Island
According to Limited Discovery Counsel, Plaintiff “was not in a position

to understand the legal requirements for municipal liability under 42 U.S.C.
§ 1983 prior to” the appointment of counsel. (Burns Decl. ¶ 8). After a June
2016 meeting with Plaintiff, Limited Discovery Counsel “began to investigate
whether [Plaintiff] had a good-faith basis to assert a … claim against the City”
pursuant to Monell v. Department of Social Services of City of New York, 436
U.S. 658 (1978). (Id. at ¶ 4).
“Shortly after” the June 2016 meeting, while researching the City’s
potential Monell liability, “counsel learned of a report produced by the United
States Attorney’s Office for the Southern District of New York (‘USAO’)
presenting the findings of an investigation into the treatment of adolescent
male inmates between the ages of 16 and 18 at jails on Rikers Island during
the period of 2011 to 2013.” (Burns Decl. ¶ 5). That report (the “USAO Report”
or the “Report”) is attached as Exhibit B to the Burns Declaration. The Report
was published on August 4, 2014, and addressed to the Mayor’s Office, DOC,
and Corporation Counsel. (Burns Decl., Ex. B, at 1).
The USAO Report “centered exclusively on whether DOC adequately
protects adolescents from harm” — including “whether adolescents are subject
to excessive and unnecessary use of force by DOC correction officers and their

5

supervisors” — and “primarily focused on practices and conduct during the
period 2011 through the end of 2013.” (Burns Decl., Ex. B, at 1-2). The
Report concluded
that there is a pattern and practice of conduct at Rikers
that violates the constitutional rights of adolescent
inmates. In particular … adolescent inmates at Rikers
are not adequately protected from harm, including
serious physical harm from the rampant use of
unnecessary and excessive force by DOC staff.
(Id. at 3). The USAO Report also identified “systematic deficiencies that
contribute to, exacerbate, and indeed are largely responsible for the excessive
and unnecessary use of force by DOC staff.” (Id. at 4).
According to Limited Discovery Counsel, Plaintiff “was unfamiliar with
the findings of the USAO Report, or any other evidence of the DOC’s
unconstitutional customs and policies at RNDC” prior to working with Limited
Discovery Counsel. (Burns Decl. ¶ 9). Upon learning of the USAO Report,
Limited Discovery Counsel “conducted research into whether [Plaintiff] had a
basis to assert a Monell claim against the City.” (Id. at ¶ 6). Concluding that
he did, counsel agreed to expand the scope of its representation to include the
instant motion for leave to amend the FAC. (Id.).
D.

The Instant Motion
Plaintiff first raised with the Court the prospect of amending the FAC to

include a Monell claim during a July 22, 2016 telephonic conference; the Court
granted the parties’ leave to brief the issue. (Dkt. #85). On August 12, 2016,
Plaintiff filed the instant motion and supporting materials (Dkt. #90-92),
including a Proposed Second Amended Complaint (the “PSAC,” Dkt. #92-1); the
6

City filed its opposition brief and supporting materials on September 30, 2016 2
(Dkt. #97-98); and Plaintiff filed his reply brief on October 14, 2016 (Dkt. #99).
DISCUSSION
A.

Plaintiff is Granted Leave to Amend the FAC
1.

Plaintiff Has Demonstrated Good Cause Under Rule 16(b)
a.

Applicable Law

Under Rule 15(a)(2), “[a] court should freely give leave [to amend] when
justice so requires.” However, where, as here, a scheduling order is in place,
“the lenient standard under Rule 15(a) ... must be balanced against the
requirement under Rule 16(b) that the Court’s scheduling order ‘shall not be
modified except upon a showing of good cause.’” Holmes v. Grubman, 568 F.3d
329, 334-35 (2d Cir. 2009) (citation omitted). Rule 16(b) “provides the district
courts discretion to ensure that limits on time to amend pleadings do not result
in prejudice or hardship to either side.” Kassner v. 2nd Ave. Delicatessen, Inc.,
496 F.3d 229, 243-44 (2d Cir. 2007).
In determining whether there is good cause, the Second Circuit has
instructed that
the primary consideration is whether the moving party
can demonstrate diligence. It is not, however, the only
consideration. The district court, in the exercise of its
discretion under Rule 16(b), also may consider other
relevant factors including, in particular, whether

2

The Court’s July 22, 2016 Order setting the briefing schedule for this motion directed
the City to “address the threshold question of whether the Court can fairly consider the
[City’s] arguments when ruling on Plaintiff’s motion.” (Dkt. #85). The City has argued
that the Court may do so (see City Opp. 5-7), and Plaintiff nowhere disputes the point
(see generally Pl. Br. & Pl. Reply). Accordingly, Plaintiff’s arguments on this front are
deemed waived.

7

allowing the amendment of the pleading at this stage of
the litigation will prejudice defendants.
Kassner, 496 F.3d at 244. A district court’s decision to grant or deny leave to
amend is “an exercise of its broad discretion concerning the pleadings.” Id. at
245.
b.

Analysis

Good cause exists to permit Plaintiff to amend the FAC. While his record
is imperfect, Plaintiff — incarcerated throughout this litigation — has been
diligent overall in pursuing this action. Even during the litigation’s early
stages, when he had been proceeding pro se, Plaintiff generally complied with
the Court’s deadlines and sought extensions or provided updates when
additional time was needed. (Dkt. #13-15, 17-18, 21, 24, 59). He requested a
copy of this District’s Pro Se Manual (Dkt. #23) and conscientiously followed up
on multiple occasions with the Clerk’s Office and the Court to ensure that he
had correctly effectuated service on Defendants (Dkt. #26-27, 31, 59-60). He
has also kept the Court apprised of his multiple prison relocations. (Dkt. #22,
76). Limited Discovery Counsel, who joined this action in early January 2016,
have also dutifully fulfilled their obligations. Counsel’s research and ultimate
proposal to pursue municipal liability arrives later than preferred, but the
Court is offered no persuasive reason to believe that this delay was undue or a
product of indolence or neglect.
Allowing Plaintiff to amend his complaint would no doubt inconvenience
the City. But it would not be prejudicial, never mind unduly so. Corporation
Counsel, which represents the City, was notified of this lawsuit and its
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allegations of abuse on October 24, 2014, about three weeks after the suit was
originally filed. (Dkt. #8). Corporation Counsel appeared in this matter as an
Interested Party about two weeks after that, on November 14, 2014. (Dkt. #9).
It has also participated in this suit from early on, including in substantial
ways — such as “conduct[ing] nearly the entire [deposition] examination [of
Plaintiff] while counsel for the individual defendants asked only a handful of
questions combined” — according to Plaintiff’s representations, which the City
nowhere denies. (Pl. Br. 20). Corporation Counsel became even further
involved when the City was named a Third-Party Defendant. (Dkt. #44). See
Mask v. Johnson, No. 96 Civ. 6167 (DC), 1997 WL 662337, at *2 (S.D.N.Y.
Oct. 22, 1997) (“Plaintiff’s Monell claim against the City is based on the same
facts underlying the claim for indemnification asserted by [an individual
defendant/third-party plaintiff] against the City. Therefore, the City would not
be prejudiced by the plaintiff’s assertion of a Monell claim directly against it.”).
In sum, Corporation Counsel has been on notice of the alleged facts and
circumstances surrounding Plaintiff’s alleged assault, as well as of the DOC
investigation into the incident. (See Tr. of Dec. 3, 2015 Conf., Dkt. #66, at 5:213). The same nucleus of operative facts persists, as do the constitutionalright violations alleged. The proposed amendment seeks to extend liability for
the alleged assault to the City. In this respect, the PSAC includes a Monell
claim and factual allegations in support thereof. (See PSAC ¶¶ 34-42, 70-74).
Plaintiff indicates that discovery related to this new claim will be tailored (Pl.
Br. 21; Pl. Reply 5), and the Court will ensure that it is. Good cause has been

9

demonstrated. See PNC Bank, Nat. Ass’n v. Wolters Kluwer Fin. Servs., Inc., 73
F. Supp. 3d 358, 376 (S.D.N.Y. 2014).
2.

There Is No Basis to Deny Leave to Amend Under Rule 15(a)
a.

Applicable Law

Good cause having been found, the Court must next address the factors
set forth in Rule 15(a). The Supreme Court’s seminal decision in Foman v.
Davis continues to govern this analysis:
If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought to
be afforded an opportunity to test his claim on the
merits. 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, as the rules require, be
“freely given.”
371 U.S. 178, 182 (1962) (quoting Fed. R. Civ. P. 15(a)).
b.

Analysis

The Court does not find that the proposed amendment is unduly delayed
or unduly prejudicial for the reasons described earlier. 3 The Court also does
not find that Plaintiff harbors a dilatory motive in seeking to amend the FAC.
The City emphasizes that Plaintiff first raised the prospect of a Monell claim

3

Moreover, a Monell claim appeared nowhere in Plaintiff’s prior two pro se complaints
because he “was unfamiliar with the findings of the USAO Report, or any other evidence
of the DOC’s unconstitutional customs and policies at RNDC” prior to working with
Limited Discovery Counsel. (Burns Decl. ¶ 9). Thus, the City’s passing argument that
“Plaintiff repeatedly failed to assert the new claims in prior pleadings” (City Opp. 11-12)
is unpersuasive, and better couched as a futility argument, even if an unsuccessful one.

10

just four days after the parties’ submission of a status letter to the Court and
only one day before a settlement meeting between Plaintiff and the Defendants.
(City Opp. 10-11). “[T]he timing of plaintiff’s first communication that [he]
intended to pursue [a Monell claim] … indicates that the purpose of the
proposed amendment [is] calculated toward settlement rather than to timely
pursue the claim in a non-prejudicial fashion.” (Id.). Even assuming this were
sufficient to qualify as a dilatory motive, the Court cannot infer such motive
based on this timing alone, particularly in light of Plaintiff’s equally plausible
explanation that the timing was a result of researching the issue and arriving
at a good-faith basis to assert a Monell claim. (Pl. Reply 4).
Finally, the City raises two principal futility arguments: (i) the proposed
Monell claim fails to state a claim and (ii) it is also time-barred. (City Opp. 1419). “An amendment to a pleading is futile if the proposed claim could not
withstand a motion to dismiss pursuant to [Rule] 12(b)(6).” Lucente v. Int’l Bus.
Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002).
The City’s first argument can be dispensed with quickly. Municipalities
are liable “when execution of a government’s policy or custom, whether made
by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the injury that the government as an entity is
responsible [for] under § 1983.” Monell, 436 U.S. at 694. As relevant here, this
“policy or custom” requirement may be satisfied by alleging the existence of “a
practice so consistent and widespread that, although not expressly authorized,
constitutes a custom or usage of which a supervising policy-maker must have

11

been aware,” or of a “failure by policymakers to provide adequate training or
supervision to subordinates to such an extent that it amounts to deliberate
indifference to the rights of those who come into contact with the municipal
employees.” White v. City of N.Y., No. 13 Civ. 7421 (KPF), 2015 WL 4601121, at
*5 (S.D.N.Y. July 31, 2015) (quoting Brandon v. City of N.Y., 705 F. Supp. 2d
261, 276-77 (S.D.N.Y. 2010)).
Here, Plaintiff’s PSAC allegations and the incorporation of the USAO
Report (see PSAC ¶¶ 34-42) — the latter of which details the pervasive use of
excessive force against adolescents at Rikers Island from 2011 through 2013,
and attendant supervision failures — “nudge[s]” Plaintiff’s Monell claim “across
the line from conceivable to plausible.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). The “operative inquiry at this stage is not whether the [USAO
Report] and its conclusions will ultimately support a finding of Monell liability,
but rather whether Plaintiff has sufficiently alleged a policy or practice that is
widespread and of which policymakers must have been aware.” Kucharczyk v.
Westchester Cnty, 95 F. Supp. 3d 529, 545 (S.D.N.Y. 2015).
The timeliness question is a closer one. The statute of limitations for
§ 1983 actions arising in New York is three years. See Eagleston v. Guido, 41
F.3d 865, 871 (2d Cir. 1994). The City argues that Plaintiff’s claim accrued at
the time of the alleged assault on October 24, 2011, rendering the proposed
Monell claim time-barred. (City Opp. 15-16). Plaintiff maintains that his claim
accrued when he “knew about, or at least had reasons to know about, the
policy or custom upon which he bases the claim,” i.e., with the August 4, 2014

12

publication of the USAO Report. (Pl. Br. 11 (internal quotation marks and
citation omitted)).
Plaintiff supports his position with the Second Circuit’s decision in
Pinaud v. County of Suffolk, which observed:
Since an actionable claim under § 1983 against a
county or municipality depends on a harm stemming
from the municipality’s “policy or custom,” a cause of
action against the municipality does not necessarily
accrue upon the occurrence of a harmful act, but only
later when it is clear, or should be clear, that the
harmful act is the consequence of a county “policy or
custom.”
52 F.3d 1139, 1157 (2d Cir. 1995) (internal citation omitted). Relying on an
unpublished decision from the Second Circuit, Lawson v. Rochester City School
District, the City argues that the above-quoted language from Pinaud is dictum
and, therefore, should be ignored in favor of “the longstanding rule that ‘a
§ 1983 cause of action accrues when the plaintiff becomes aware that [he] is
suffering from a wrong for which damages may be recovered in a civil action.’”
(City Opp. 16 (quoting Lawson v. Rochester City Sch. Dist., 446 F. App’x 327,
329 (2d Cir. 2011) (summary order))). For the City, this means the claim
accrued at the time of the alleged assault.
The Court declines the City’s Lawson-based invitation to deviate from
Pinaud. First, the Second Circuit’s summary order in Lawson does not
abrogate the Circuit’s precedential decision in Pinaud. True, Lawson calls the
Pinaud majority’s discussion of Monell accrual dictum based on Judge Jacobs’s
partial concurrence and partial dissent in Pinaud labeling it as such. See
Lawson, 446 F. App’x at 329 (highlighting that, “as Judge Jacobs noted in a
13

separate opinion,” the accrual discussion is dictum) (citing Pinaud, 52 F.3d at
1162 (Jacobs, J., concurring in part and dissenting in part)). But if summary
orders are to be given such weight, then the Court would do well to be equally
mindful of the Circuit’s summary order in Birch v. City of New York — issued
not two months ago — in which the Circuit favorably block-quoted the same
Pinaud-majority accrual language, and then applied it to the facts presented:
“In light of Pinaud, the limitations period for [the plaintiff’s] Monell claims did
not begin until such time as he should have known that [the complained of
conduct] resulted from the City’s ‘policy or custom.’” No. 16-1746, 2017 WL
129148, at *2 (2d Cir. Jan. 12, 2017). The Birch panel, it should be noted, was
presided over by Judge Jacobs. (See id., Dkt. #52, 58).
Second, Pinaud itself already accounts for — and distinguishes — the
exact precedent on which Lawson relies. Lawson quotes the Circuit’s
precedential decision in Eagleston v. Guido for the accrual-rule formulation
preferred by the City. See Lawson, 446 F. App’x at 329 (quoting Eagleston, 41
F.3d at 872). But Footnote 17 of the majority opinion in Pinaud addresses
Eagleston:
The dissent intimates that our determination … is
inconsistent with … Eagleston. But the discussion in
Eagleston in no way forecloses delayed accrual of
causes of action under § 1983 when the circumstances
of the case warrant it. … Eagleston’s statute-oflimitations discussion only addresses issues relating to
the accrual of claims against individual defendants,
claims that do not require a “policy or custom,” as do
claims against a municipality. The issue before us,
instead, is precisely that of when [the plaintiff] knew or
should have known enough to claim the existence of a

14

“policy or custom”
[municipality].

so

that

he

could

sue

the

Pinaud, 52 F.3d at 1157 n.17 (internal citations omitted). The City offers no
other authority to suggest that the Pinaud formulation should be
rejected — particularly where, as here, “the circumstances of the case warrant
it.” Id.
Third, Lawson is distinguishable. Here, unlike in Lawson, accrual was
not delayed based upon “the future discovery of facts tangentially related to a
Monell claim.” Lawson, 446 F. App’x at 329 (emphasis added) (rejecting
plaintiff’s delayed accrual argument for § 1983 race-discrimination claim
because it relied on events “insufficiently related” to the adverse employment
action). As earlier discussed, there is nothing “tangential” or “insufficiently
related” about the USAO Report’s conclusions, incorporated into the PSAC,
concerning the policy or practice of abuse of adolescent male inmates at Rikers
Island from 2011 through 2013, precisely Plaintiff’s profile and allegations. See
generally Houston v. Cotter, 7 F. Supp. 3d 283, 291-92 (E.D.N.Y. 2014) (relying
on Pinaud and distinguishing Lawson).
Here, Plaintiff notes that “[a]lthough [he] was aware of the isolated
circumstances of his assault when he filed his initial and amended complaints,
he had no insight at those times into the DOC customs and policies that led to
the use of excessive and unnecessary force on adolescents at Rikers.” (Pl.
Br. 12). The Court finds that Plaintiff’s Monell claim accrued, at the earliest, on
the date of the USAO Report’s August 4, 2014 publication. Notably, Plaintiff
(through his counsel) was not actually aware of the Report and its findings
15

until sometime in mid-2016. (Burns Decl. ¶¶ 4-5). See Pinaud, 52 F.3d at
1157 (evaluating whether the plaintiff “knew about, or at least had reason to
come to know about, the policy or custom”). But even holding Plaintiff to the
more stringent standard, i.e., accrual when Plaintiff should have become aware
of the Report, the Court does not find that the Monell claim is time-barred. 4
CONCLUSION
For the foregoing reasons, Plaintiff’s motion for leave to amend the FAC is
GRANTED. Plaintiff is directed to file the PSAC contained in Exhibit A of the
declaration in support of his motion (see Dkt. #92-1). The Clerk of Court is
directed to terminate the motion at Docket Entry 90.
The parties are hereby ORDERED to appear for a status conference on
March 23, 2017, at 11:00 a.m. in Courtroom 618 of the Thurgood Marshall
Courthouse, 40 Foley Square, New York, New York.
SO ORDERED.
Dated:

4

March 6, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

Accordingly, the Court need not reach the parties’ dispute centered on the relation-back
doctrine.

16