Neal v. Wilson et al

Filing 105

MEMORANDUM ORDER: Allowing Neal to file his proposed third amended complaint would be futile because it would be barred by the statute of limitations as to the newly-named defendants. Accordingly, Neal's request to file a third amended complaint is denied. SO ORDERED. (Signed by Magistrate Judge Gabriel W. Gorenstein on 3/09/2017) Copies Mailed By Chambers. (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CHRISTOPHER NEAL,
:
Plaintiff,

:
:

-v.WILSON, et al.,

MEMORANDUM ORDER
15 Civ. 2822 (RA) (GWG)

:

Defendants.
:
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GABRIEL W. GORENSTEIN, United States Magistrate Judge
On January 12, 2017, plaintiff Christopher Neal sent the Court a letter attaching an
amended complaint and apparently seeking to have it filed. See Letter from Christopher Neal,
dated Jan. 12, 2017 (Docket # 97) (“Neal Letter”). The only substantive change in the complaint
is the addition of two new defendants — both undercover police officers. See “Amended
Comp[l]aint,” dated Jan. 12, 2017 (attached to Neal Letter) (“Prop. 3d Am. Compl.”), ¶ 1. We
construe this letter as a motion to amend. Defendants filed a letter in response, see Letter from
Ben Kuruvilla, dated Jan. 26, 2017 (Docket # 98) (“Kuruvilla Letter”), and Neal filed a reply,
see Letter from Christopher Neal, dated Feb. 1, 2017 (Docket # 99) (“Neal Reply”). For the
reasons stated below, the motion to amend is denied.
I. PROPOSED AMENDED COMPLAINT
Neal alleged in his original complaint that he was in his apartment on the night of
November 23, 2012, “tending to [a] wound,” when up to 10 police officers “unlawfully entered
[his] apartment without . . . permission.” See Complaint, dated Mar. 30, 2015 (Docket # 2),
¶¶ 1.B, 2.A.1 (emphasis omitted). For unexplained reasons, one of the officers asked Neal to
come with them and Neal refused. Id. ¶ 2.A.2. According to his complaint, the officers then
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proceeded to attack Neal with punches, a Taser, and a baton. Id. ¶¶ 2.A.2-.5. The officers
handcuffed Neal and took him from his apartment to a hospital. Id. ¶ 2.A.6. Neal was arrested
and arraigned later that night. Id. The original complaint identified four defendants by name,
and another six were identified as “John Doe.” Id. ¶ 1.B.
Several weeks after bringing suit, Neal filed his first amended complaint. See Amended
Complaint, dated May 12, 2015 (Docket # 5). Neal’s first amended complaint not only included
allegations relating to the November 23, 2012, incident, but also described an incident on August
20, 2012. See id. ¶ 2.B. Neal alleged that on August 20, 2012, he was arrested without probable
cause while walking in public with his daughter and nephew. See id. In his description of the
August 20, 2012, incident, Neal alleged that “an unknown detective” arrested him. Id. The
caption of the complaint lists as defendants two detectives: Detective Marrero and Detective
Scollo. Id. ¶ 1.B. The complaint does not mention any other police personnel involved in the
August 20, 2012, incident.
Neal filed a second amended complaint in December 2015. See Amended Complaint,
dated Dec. 5, 2015 (Docket # 30) (“2d Am. Compl.”). In his second amended complaint, Neal
describes the August 20, 2012, incident and alleges that Detective Marrero arrested him. See id.
¶ 2.B. Neal also alleges that Detective Scollo was involved in the August 20, 2012, incident.
See id. ¶ 2.B.1. The second amended complaint makes no mention of any other police personnel
involved in the August 20, 2012, incident.
Neal’s proposed third amended complaint — the subject of the current motion and first
presented in his letter of January 12, 2017 — adds to the caption two undercover police officers
as defendants, who are identified by undercover number: “UC number 280” and “UC number
10” of the Narcotics Borough Bronx. See Prop. 3d. Am. Compl. ¶¶ 1.B.11-.12. This complaint
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describes the August 20, 2012, incident. It again names Detectives Marrero and Scollo as
defendants and gives allegations regarding these detectives’ conduct relating to the arrest. The
proposed complaint for the first time adds the following factual allegation: “UC number 280
and/or UC nu[m]ber 10 made a statement that [Neal] had placed glassines containing heroin
inside [a] candy machine slot.” See id. ¶ 2.B.6 (emphasis and capitalization omitted). In a claim
entitled “Breach of Duty to Protect,” the proposed amended complaint also alleges that the two
undercover officers, along with Detectives Marrero and Scollo, made false statements. See id.
¶¶ 2.C.3, 2.C.5.
II. DISCUSSION
Defendants oppose Neal’s request to amend the complaint because they contend that the
claims against the new defendants are barred by the applicable statute of limitations and thus the
amendment would be futile. See Kuruvilla Letter at 1-3.
A. Law Governing Motions to Amend
Fed. R. Civ. P. 15(a)(2) instructs courts to “freely give leave [to amend a complaint]
when justice so requires.” Accord Foman v. Davis, 371 U.S. 178, 182 (1962). Nonetheless,
leave to amend may be denied where there is “undue delay, bad faith, . . . undue prejudice to the
opposing party . . . , [or] futility of amendment.” See Foman, 371 U.S. at 182; accord Knife
Rights, Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015) (citations omitted). “An amendment to a
pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.
R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002)
(citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir.
2002)). Thus, an amendment is futile if the claim proposed to be added would be barred by the
applicable statute of limitations. See, e.g., Trakansook v. Astoria Fed. Sav. & Loan Ass’n, 2008
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WL 4962990, at *2 (2d Cir. Nov. 21, 2008) (summary order); Grace v. Rosenstock, 228 F.3d 40,
53 (2d Cir. 2000) (citation omitted); Forbes v. City of New York, 2016 WL 6269602, at *6-7
(S.D.N.Y. Oct. 26, 2016) (collecting cases); Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74,
81 (E.D.N.Y. 2011) (citation omitted).
B. Statute of Limitations and Relation Back
Section 1983 itself does not provide a statute of limitations. See 42 U.S.C. § 1983;
Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). “Thus, courts apply the statute of
limitations for personal injury actions under state law.” Hogan, 738 F.3d at 517 (citing Owens v.
Okure, 488 U.S. 235, 249-51 (1989); and Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir.
2002)). For section 1983 actions filed in New York, the applicable statute of limitations is
section 214 of New York’s Civil Practice Law and Rules (“CPLR”), which allows three years to
file suit. See id. (citing Pearl, 296 F.3d at 79; and N.Y. C.P.L.R. § 214); accord Lefebvre v.
Morgan, 2017 WL 564090, at *9 (S.D.N.Y. Feb. 10, 2017).
We construe the proposed complaint as alleging claims of false arrest and malicious
prosecution against the two undercover officers. See Prop. 3d Am. Compl. ¶¶ 2.C.3, 2.C.5.1
The statute of limitations for false arrest claims begins to run at the time of detention under legal
process, such as at an arraignment. See Wallace v. Kato, 549 U.S. 384, 389-91, 397 (2007);

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The proposed amended complaint also alleges that the undercover officers are being
sued for “[b]reach of [d]uty to [p]rotect.” See Prop. 3d Am. Compl. ¶ 2.C. The Court doubts
that the proposed complaint raises such a claim, which is normally made in the context of
deliberate indifference in situations involving risk of physical or health-related injury. See, e.g.,
Farmer v. Brennan, 511 U.S. 825, 835-37, 845 (1994); Doe v. N.Y.C. Dep’t of Soc. Servs., 649
F.2d 134, 144-45 (2d Cir. 1981). In any event, any such claim would be subject to the same
three-year statute of limitations as Neal’s other claims. See, e.g., Shomo v. City of New York,
579 F.3d 176, 181 (2d Cir. 2009); Wright v. Levitt, 2016 WL 6080274, at *3 (W.D.N.Y. Oct. 18,
2016); Fairley v. Collins, 2011 WL 1002422, at *4 (S.D.N.Y. Mar. 15, 2011).
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accord Culpepper v. City of New York, 2016 WL 5334978, at *4 (S.D.N.Y. Sept. 21, 2016). For
malicious prosecution claims, the statute of limitations time begins when “the underlying
criminal action is conclusively terminated.” Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995)
(citing Singleton v. City of New York, 632 F.2d 185, 189, 193 (2d Cir. 1980)); accord Walters v.
City Dep’t of Corr., 517 F. App’x 41, 42 (2d Cir. 2013) (summary order); Forbes, 2016 WL
6269602, at *4.
As to the claims against the proposed new defendants, Neal was arraigned the same day
as he was arrested, August 20, 2012. 2d Am. Compl. ¶ 2.B.2. Therefore, Neal’s false arrest
claims related to the August 20, 2012, incident expired on August 20, 2015. See Culpepper,
2016 WL 5334978, at *4. The charges related to the August 20, 2012, arrest were dismissed on
July 8, 2013. See Defendants’ Responses and Objections to Plaintiff’s Second Set of
Depositions by Written Question, dated Oct. 6, 2016 (attached as Ex. 1 to Docket # 78), at 4041(admitting that the charges against Neal related to the August 20 arrest were dismissed on July
8, 2013). Thus, Neal’s malicious prosecution claims expired on July 8, 2016. See Forbes, 2016
WL 6269602, at *4.
Because the proposed complaint was first presented to the Court by letter dated January
12, 2017, the complaint is untimely unless it “relates back” to one of the pleadings filed before
the statute of limitations expired. See Fed. R. Civ. P. 15(c). Rule 15(c)(1)(C) of the Federal
Rules of Civil Procedure, which allows relation back, would appear to bar relation back because
the rule applies only where an amendment “changes the party or the naming of the party against
whom a claim is asserted” — not where an amendment adds a previously unmentioned party.
See In re Vitamin C Antitrust Litig., 995 F. Supp. 2d 125, 129 (E.D.N.Y. 2014) (“In an
‘additional party’ case . . . . [t]he plaintiff has sued the right defendant, and simply neglected to
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sue another defendant who might also be liable. If the drafters of Rule 15 had meant to allow
relation back in this situation, they could have easily done so.”); accord Fischer v. Forrest, 2017
WL 128705, at *10-11 (S.D.N.Y. Jan. 13, 2017) (“[E]ven if [plaintiff] was unaware that [the
newly added defendant] could be sued . . . relation back still would be inappropriate because
[plaintiff] never named an improper party to begin with.”) (citing Fed. R. Civ. P.
15(c)(1)(C)(ii)); Briggs v. County of Monroe, 2016 WL 6084137, at *3 (W.D.N.Y. Oct. 18,
2016) (“By its express language, the relation-back language of Rule 15(c)(1)(C) applies to an
amendment that ‘changes’ a named party due to a mistake concerning the proper party’s identity,
not to a situation where an entirely new party is being added.”) (citations omitted); Pikos v.
Liberty Maint., Inc., 2015 WL 6830670, at *3 (E.D.N.Y. Nov. 6, 2015) (“Courts in this Circuit
have held relation back is only permitted where plaintiff named the wrong party in the original
complaint, and not where plaintiff named one but not all of the right defendants.”) (citation
omitted).
While there are cases that have apparently not strictly followed this interpretation, see,
e.g., Almazo v. M.A. Angeliades, Inc., 2015 WL 6965116, at *5-6 (S.D.N.Y. Nov. 10, 2015),
reconsideration denied, 2016 WL 5719748 (S.D.N.Y. Sept. 29, 2016), it is not necessary to
address them inasmuch as Rule 15(c)(1)(C)(ii) permits relation back only if the new party “knew
or should have known that the action would have been brought against it, but for a mistake
concerning the proper party’s identity.” Here, there was no “mistake” regarding the undercover
officers’ identity. See, e.g., Hogan, 738 F.3d at 517-18 (noting that failing to identify an
individual defendant is not a mistake for Rule 15(c) purposes) (citation omitted); Briggs v.
County of Monroe, 2016 WL 1296060, at *9 (W.D.N.Y. Mar. 29, 2016) (“Plaintiffs’ proposed
addition of the new defendants in this case does not seek to cure any mistake of identity; rather,
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it seeks to cure plaintiffs’ ignorance of the potential culpability of the proposed defendants. That
it does so after the expiration of the statute of limitations is fatal . . . .”). Thus, this element of
Rule 15(c)(1)(C)(ii) is not satisfied.
In addition, there is no evidence that the newly-named undercover officers “knew” or
“should have known” that any of Neal’s complaints filed within the limitations periods intended
to name them at all (assuming it could be said they had notice of them). This is because none of
the timely complaints purported to sue the undercover officers or any other individual who
committed the specific acts that the undercover officers are now alleged to have committed.
Thus, the undercover officers would have had no reason to know that any mistake had caused
them not to be named. While Neal asserts that he was unaware of the undercover officers until
June 6, 2016, Neal Reply at *2, Rule 15(c)’s applicability turns on the defendant’s knowledge,
not the plaintiff’s knowledge. See Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 548 (2010)
(“The question under Rule 15(c)(1)(C)(ii) is not whether [plaintiff] knew or should have known
the identity of [the new party] as the proper defendant, but whether [the new party] knew or
should have known that it would have been named as a defendant but for an error.”); accord JCG
v. Ercole, 2014 WL 1630815, at *18 (S.D.N.Y. Apr. 24, 2014).
Rule 15(c) also permits an amendment to relate back to the date of the original complaint
if “the law that provides the applicable statute of limitations allows relation back.” Fed. R. Civ.
P. 15(c)(1)(A). As discussed above, the applicable statute of limitations is provided by New
York law, and we therefore look to that “body of limitations law” to ascertain whether it would
allow relation back in this case. Hogan, 738 F.3d at 518 (citation and emphasis omitted). One
relevant provision of New York law is section 1024 of the CPLR. Id. Section 1024 states that

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[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.
N.Y. C.P.L.R. § 1024. Neal cannot take advantage of this statute because he did not “proceed
against” the undercover officers in any fashion until after the statute of limitations expired. In
other words, he did not describe the undercover officers as a “John Doe” or in any other form as
would “fairly apprise the [newly named] party that he [was] the intended defendant.” See
Hogan, 738 F.3d at 519 (internal quotation marks and brackets omitted) (quoting Bumpus v.
N.Y.C. Transit Auth., 66 A.D.3d 26, 30 (2d Dep’t 2009)); see also Santiago v. City of New
York, 2016 WL 5395837, at *2 (E.D.N.Y. Sept. 27, 2016) (complaint did not relate back under
section 1024 where no description of alleged officers was contained in complaint)
A party may also seek relation back under CPLR section 203. See, e.g., Strada v. City of
New York, 2014 WL 3490306, at *6 (E.D.N.Y. July 11, 2014) (citing Bumpus, 66 A.D.3d at
32). Section 203(f), however, bars relation back if the original pleading “does not give notice of
the transactions, occurrences, or series of transactions or occurrences, to be proved pursuant to
the amended pleading.” Section 203 has been interpreted to embody essentially the same
limitation as Federal Rule 15(c)(1)(C), see Sloane v. Town of Greenburgh, 2005 WL 1837441, at
*3 (S.D.N.Y. July 27, 2005) (citations omitted): namely, requiring the plaintiff to show that “the
new party knew or should have known that, but for an excusable mistake by plaintiff as to the
identity of the proper parties, the action would have been brought against him as well,” Buran v.
Coupal, 87 N.Y.2d 173, 178 (1995) (citation and internal quotation marks omitted); accord JCG
v. Ercole, 2014 WL 1630815, at *15 (S.D.N.Y. Apr. 24, 2014) (citation omitted), adopted by
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