Ceara v. Doe

Filing 21

OPINION AND ORDER: In light of the foregoing analysis, the Court denies Defendant's Motion to Dismiss. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 11/25/2014) (See OPINION AND ORDER as set forth) (lnl)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

RAFAEL CEARA,
Plaintiff,
v.

No. 13-CV-6023 (KMK)
OPINION AND ORDER

DOCCS OFFICER JOSEPH DEACON,
Defendant.

Appearances:
Rafael Ceara
Ossining, NY
Pro Se Plaintiff
John E. Knudsen, Esq.
Frederick Hongyee Wen, Esq.
New York State Department of Law Litigation
New York, NY
Counsel for Defendant
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Rafael Ceara (“Plaintiff”) filed the instant Complaint pursuant to 42
U.S.C. § 1983 against New York State Department of Corrections and Community Supervision
(“DOCCS”) Officer Joseph Deacon (“Defendant” or “Deacon”), alleging that Defendant
subjected Plaintiff to excessive force when he pushed Plaintiff down several stairs, and then
threatened Plaintiff to deter him from filing a grievance about the incident, in violation of his
rights under the Eighth and Fourteenth Amendments of the United States Constitution. (See Am.
Compl. (“Am. Compl.”) (Dkt. No. 7).) Before the Court is Defendant’s Motion to Dismiss the
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Notice of Mot. to Dismiss

(“Mot.”) (Dkt. No. 17).) This Motion asserts only that Plaintiff’s Action is time-barred. For the
following reasons, Defendant’s Motion is denied.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Amended Complaint and are taken as true
for the purpose of resolving the instant Motion. On September 5, 2010 at approximately 11:21
a.m., Defendant “malicious[ly] and sadistic[ally] used excessive force to push [Plaintiff, then an
inmate at Downstate Correctional Facility in New York,] down several concrete stairs.” (Am.
Compl. 2.) Other inmates witnessed the incident. (Id. at 3.) As a result of Defendant’s conduct,
Plaintiff’s knee was lacerated and he continues to suffer pain in his knee and back. (Id.)
Defendant and “other officers and sergeants” threatened Plaintiff to deter him from
writing a grievance about the incident. (Id.) Plaintiff nonetheless filed a grievance about the
incident and wrote to the superintendent and the state police, who “had the Inspector General
investigate the matter . . . [and] interview several other prisoner[] witnesses and [Plaintiff].” (Id.
at 5.) After Plaintiff received an unfavorable response to his grievance, Plaintiff did not appeal
the decision because he was not afforded an opportunity to do so. (Id. at 4.)
B. Procedural History
Plaintiff filed the original Complaint on August 22, 2013. (See Compl. (“Compl.”) (Dkt.
No. 2).) The original Complaint named “Correctional Officer John Doe which [sic] worked at
Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m[.] [to] 3[]
p[.]m[.] shift in D-Block, Complex 1” as the defendant. (Compl. 1.) Directly below the
information provided about the Defendant, Plaintiff stated that he “wrote to [the] Inspector
General for [the] full names and have had [sic] no respon[s]e.” (Id.) In parenthesis, Plaintiff

2

noted “C[.]O. Deagan, [h]e has old [sic] brother by same name.” (Id.) As “Defendant No. 1,”
Plaintiff listed “John Doe (C[.]O. Deagan younger brother).” (Id.)
The Court issued an Order of Service pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d
Cir. 1997), dated September 4, 2013, directing the New York State Attorney General (the
“Attorney General”) to ascertain the identity and address of the John Doe Defendant that
Plaintiff named in the original Complaint within 60 days.1 (See Order of Service (“Order of
Service”) (Dkt. No. 5).) The Order of Service provided that “Plaintiff must file an amended
complaint naming the John Doe Defendant” within thirty days of receiving information about the
defendant from the Attorney General. (Id. at 2.) In response, the Attorney General notified the
Court and Plaintiff by letter dated October 25, 2013 that “Officer John Haag and Officer Joseph
Deacon were on duty during the [relevant] shift . . . .” (See Dkt. No. 6.) Plaintiff then filed the
Amended Complaint on November 22, 2013, substituting “Joseph Deacon, D.O.C.C.S., Officer”
for “Correctional Officer John Doe.” (Am. Compl. 1.)
Pursuant to a scheduling order entered after a pre-motion conference on June 16, 2014,
(see Dkt. No. 15), Defendant filed the instant Motion to Dismiss, (see Mot.), and a memorandum
of law in support of the Motion, (see Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.’s
Mem.”) (Dkt. No. 18)); Plaintiff submitted a memorandum of law in opposition to the Motion, a
grievance dated September 9, 2010, and a letter dated September 6, 2010, (see Mem. of Law in
Supp. of Plaintiff from Def.’s Mot. to Dismiss (“Pl.’s Mem.”) (Dkt. No. 19)); and Defendant
filed a reply, (see Reply Mem. of Law in Further Supp. of Def.’s Mot. to Dismiss (“Def.’s
Reply”) (Dkt. No. 20)).

1

In Valentin v. Dinkins, the Second Circuit held that a pro se litigant is entitled to assistance
from the district court in identifying a defendant. 121 F.3d 72, 75 (2d Cir. 1997).
3

II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff's obligation to provide the grounds of his
[or her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (second alteration in original) (internal quotation marks omitted). Instead, the
Court has emphasized that “[f]actual allegations must be enough to raise a right to relief above
the speculative level,” id., and that “once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the complaint,” id. at 563. A
plaintiff must allege “only enough facts to state a claim to relief that is plausible on its face.” Id.
at 570. But if a plaintiff has “not nudged [his or her] claims across the line from conceivable to
plausible, the[ ] complaint must be dismissed.” Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679
(2009) (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the
pleader is entitled to relief.’” (alteration in original) (citation omitted) (quoting Fed. R. Civ. P.
8(a)(2))).
In considering Defendant’s Motion to Dismiss, the Court is required to consider as true
the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d
184, 188 (2d Cir. 2008) (“We review de novo a district court’s dismissal of a complaint pursuant
to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable

4

inferences in the plaintiff’s favor.” (italics and internal quotation marks omitted)); Gonzalez v.
Caballero, 572 F. Supp. 2d 463, 466 (S.D.N.Y. 2008) (same). Generally, “[i]n adjudicating a
Rule 12(b)(6) motion, a district court must confine its consideration to facts stated on the face of
the complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken.” Leonard F. v. Isr. Disc. Bank
of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (internal quotation marks omitted). In deciding a
motion to dismiss a pro se complaint, however, it is appropriate to consider “materials outside
the complaint to the extent that they are consistent with the allegations in the complaint,”
Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug. 2, 2013)
(internal quotation marks omitted), including “documents that a pro se litigant attaches to his
opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6 (E.D.N.Y. Dec.
15, 2010); see also Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (noting that a court
may consider “factual allegations made by a pro se party in his papers opposing the motion”);
Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013)
(“Although the Court is typically confined to the allegations contained within the four corners of
the complaint, when analyzing the sufficiency of a pro se pleading, a court may consider factual
allegations contained in a pro se litigant’s opposition papers and other court filings.”) (citations
and internal quotation marks omitted).
Although “[t]he lapse of a limitations period is an affirmative defense that a defendant
must plead and prove[,]” a statute of limitations defense may be “raise[d] . . . in a Rule 12(b)(6)
motion if the defense appears on the face of the complaint.” Staehr v. Hartford Fin. Servs. Grp.,
Inc., 547 F.3d 406, 425 (2d Cir. 2008) (internal quotation marks omitted); see also Vasconcellos
v. City of New York, No. 12-CV-8445, 2014 WL 4961441, at *2 (S.D.N.Y. Oct. 2, 2014) (same);

5

Mosdos Chofetz Chaim, Inc. v. RBS Citizens, N.A., 14 F. Supp.3d 191, 210 (S.D.N.Y. 2014)
(“[B]ecause the defendants bear the burden of establishing the expiration of the statute of
limitations as an affirmative defense, a pre-answer motion to dismiss on this ground may be
granted only if it is clear on the face of the complaint that the statute of limitations has run.”
(internal quotation marks omitted)); cf. Wang v. Palmisano, No. 13-CV-2186, 2014 WL
5011099, at *11–12 (S.D.N.Y. Sept. 30, 2014) (refusing to dismiss several employment claims
under state and federal law as untimely pursuant to Rule 12(b)(6) because of two uncertainties on
the face of the complaint as to when the claims accrued).
B. Analysis
As noted, Defendant’s sole basis for seeking dismissal of the Action is that Plaintiff’s
Amended Complaint is time barred. Because § 1983 does not provide for a specific statute of
limitations, courts apply the statute of limitations for personal injury actions under state law. See
Hogan v. Fisher, 738 F.3d 509, 517 (2d Cir. 2013); Shomo v. City of New York, 579 F.3d 176,
181 (2d Cir. 2009) (same); Vasconcellos, 2014 WL 4961441, at *4 (same). Under New York
law, the statute of limitations for personal injury claims is three years. See N.Y. C.P.L.R.
§ 214(5). “Section 1983 actions filed in New York are therefore subject to a three-year statute of
limitations,” Hogan, 738 F.3d at 517, that begins to accrue “when the plaintiff knows or has
reason to know of the harm,” Shomo, 579 F.3d at 181 (internal quotation marks omitted).
Here, Plaintiff alleges that Defendant pushed him down the stairs and threatened him on
September 5, 2010. (Am. Compl. 2.) Accordingly, Plaintiff had until September 5, 2013 to file
his suit. Although Plaintiff filed the original Complaint on August 22, 2013, two weeks before
the expiration of the statute of limitations, he listed “Correctional Officer John Doe” as the
defendant. Plaintiff did not identify Deacon by name until he filed the Amended Complaint on

6

November 22, 2013. Defendant contends, therefore, that because “Deacon was not named as a
defendant in this matter until after the three year statute of limitations expired, [the Amended
Complaint] should be dismissed.” (Def.’s Mem. 1.)
Usually, “‘John Doe’ pleadings cannot be used to circumvent statutes of limitations
because replacing a ‘John Doe’ with a named party in effect constitutes a change in the party
sued.’” Hogan, 738 F.3d at 517 (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.
1993)). Substitutions of a party’s name for John Doe, therefore, “may only be accomplished” if
the amended pleading relates back to the date of the original complaint under Federal Rule of
Civil Procedure 15(c). Aslanidis, 7 F.3d at 1075; see also JCG v. Ercole, No. 11-CV-6844, 2014
WL 1630815, at *12 (S.D.N.Y. Apr. 24, 2014) (same), adopted by 2014 WL 2769120 (S.D.N.Y.
June 18, 2014). Accordingly, as Plaintiff did not list Defendant by name until after the statute of
limitations expired, his claims are timely only if the Amended Complaint relates back to the
original Complaint under Rule 15(c). See Vasconcellos, 2014 WL 4961441, at *5. Rule 15(c)
contains two subsections that are relevant here—Rule 15(c)(1)(C) and Rule 15(c)(1)(A). See
Hogan, 738 F.3d at 517.
1. Plaintiff’s Claims are Untimely under Fed. R. Civ. P. 15(c)(1)(C).
“Rule 15(c)(1)(C) provides the federal standard for relation back.” Hogan, 738 F.3d at
517. For an amended complaint adding a new party to relate back under Rule 15(c)(1)(C):
(1) the claim must have arisen out of conduct set out in the original pleading; (2)
the party to be brought in must have received such notice that it will not be
prejudiced in maintaining its defense; (3) that party should have known that, but
for a mistake of identity, the original action would have been brought against it;
and . . . [4] the second and third criteria are fulfilled within 120 days of the filing
of the original complaint, and . . . the original complaint [was] filed within the
limitations period.
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 468–69 (2d

7

Cir. 1995)). Here, Defendant does not dispute that the claims in the Amended Complaint arise
out of the conduct described in the original Complaint, that he received notice so as not to be
prejudiced in maintaining his defense, or that he received notice of the Amended Complaint
within 120 days of the filing of the original Complaint. Instead, Defendant argues that Plaintiff
cannot meet the third requirement for relation back because under Rule 15(c)(1)(C) “[P]laintiff’s
reason for not serving Officer Deacon within the three year period, that he did not know the
identity of the defendant, is insufficient . . . .” (Def.’s Mem. 4.) Defendant is correct.
“[A]lthough ‘Rule 15(c) explicitly allows the relation back of an amendment due to a ‘mistake’
concerning the identity of the parties . . . [,] the failure to identify individual defendants when the
plaintiff knows that such defendants must be named cannot be characterized as a mistake.’”
Hogan, 738 F.3d at 517–18 (quoting Barrow, 66 F.3d at 470). In other words, “lack of
knowledge of a John Doe defendant’s name does not constitute a ‘mistake of identity.’” Id. at
518 (citing Barrow, 66 F.3d at 470); see also Vasconcellos, 2014 WL 4961441, at *7
(concluding that the plaintiff’s claims did not relate back under Fed. R. Civ. P. 15(c)(1)(C)
because the plaintiff was “ignorant” and not “mistaken” about the John Doe defendants’
identities); Strada v. City of New York, No. 11-CV-5735, 2014 WL 3490306, at *10 (E.D.N.Y.
July 11, 2014) (citing Hogan and explaining that “Barrow remains good law . . . and precludes
[the] [c]ourt from finding that [the] [p]latiniff’s failure to amend the [c]omplaint to name the
individual officers was a mistake contemplated by Rule 15(c)”). Accordingly, because Plaintiff
cannot satisfy the third requirement, his amended pleading cannot relate back under Rule
15(c)(1)(C). See Hogan, 738 F.3d at 518.
2. Plaintiff’s Claims are Timely under Fed. R. Civ. P. 15(c)(1)(A).
An amended pleading relates back pursuant to Fed. R. Civ. P. 15(c)(1)(A) when “the law

8

that provides the applicable statute of limitations allows relation back.” Fed. R. Civ. P.
15(c)(1)(A). In applying Rule 15(c)(1)(A), courts are “to look at the entire body of limitations
law that provides the applicable statute of limitations.” Hogan, 738 F.3d at 518. Because § 1983
“derives its statute of limitations from state law,” the Court looks to New York State law. Id.
Here, the applicable state law is § 1024 of the New York Practice Law and Rules (“CPLR”),
which states:
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. As the Second Circuit has recently held, CPLR § 1024 is in fact more
forgiving in relating back complaints in the John Doe context. See Hogan, 738 F.3d at 518.
Accordingly, the Court must determine whether Plaintiff may take advantage of § 1024. See
Wilson v. City of New York, No. 03-CV-2495, 2006 WL 2528468, at *2 (S.D.N.Y. Aug. 31,
2006) (noting that Rule 15(c)(1) directs courts to apply either state or federal law, whichever
“affords a more forgiving principle of relating back”) (internal quotation marks and citation
omitted).
As an initial matter, a plaintiff may not designate a party as “John Doe” under § 1024 if
he has actual knowledge of the party’s identity. See Deutsche Bank Nat. Trust Co. v. Turner,
934 N.Y.S.2d 33, No. 10-CV-41152, 2011 N.Y. Slip Op. 51153(U), at *2 (Civ. Ct. Apr. 22,
2011); Maurro v. Lederman, 795 N.Y.S.2d 867, 870 (Sup. Ct. 2005) (“An explicit prerequisite to
the use of CPLR 1024 is plaintiff’s ignorance of the defendant’s name.”). “If none of the name
is known, then a completely fictitious name may be utilized. However, such a designation can
only be made if the designating party does not know all or part of the other party’s name;

9

otherwise the party must be designated to the extent that his or her name is known.” First Fed.
Savings & Loan Ass’n of Rochester v. Souto, 601 N.Y.S.2d 43, 44 (Civ. Ct. 1993); see also
Turner, 2011 N.Y. Slip Op. 51153(U), at *2 (same). Here, in the caption, Plaintiff noted that he
“wrote to [the] Inspector General for full names and . . . had no respon[s]e.” (Compl. 1.) Also in
the caption, Plaintiff wrote “C[.]O. Deagan” and described “Correctional Officer John Doe” as a
person who allegedly worked at “Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010
on [sic] the 7[] a[.]m. [to] 3[] p[.]m. shift in D-Block, Complex 1.” (Id.) Moreover, as
“Defendant No. 1,” Plaintiff listed “John Doe (C[.]O. Deagan younger brother).” (Id.)
Accordingly, from the face of the original Complaint, it is apparent that Plaintiff was, at the very
least, ignorant “in part” of Deacon’s name, and “designat[ed] so much of [Deacon’s] name and
identity as [was] known,” for purposes of invoking CPLR § 1024.
Under CPLR § 1024, a plaintiff may substitute a named party for a John Doe party nunc
pro tunc if the plaintiff meets two requirements. Hogan, 738 F.3d at 518–19. Specifically, a
plaintiff must (1) “‘exercise due diligence, prior to the running of the statute of limitations, to
identify the defendant by name,’” and (2) “describe the John Doe party ‘in such form as will
fairly apprise the party that [he] is the intended defendant.’” Id. (quoting Bumpus v. N.Y.C.
Transit Auth., 883 N.Y.S.2d 99, 104 (App. Div. 2009)) (second alteration in original).2
Due diligence in this context “requires that a plaintiff ‘show that he or she made timely

Pursuant to New York Civil Practice Law and Rules (“CPLR”) § 306-b, once a John Doe
complaint is filed, a plaintiff must serve it on the correct defendant “within one hundred twenty
days after the commencement of the action.” N.Y. C.P.L.R. § 306-b. See Vasconcellos v. City of
New York, No. 12-CV-8445, 2014 WL 4961441, at *8 (S.D.N.Y. Oct. 2, 2014); cf. Fisher v.
Cnty. of Nassau, No. 10-CV-677, 2011 WL 4899920, at *4 (E.D.N.Y. Oct. 13, 2011) (explaining
that under CPLR § 1024, a plaintiff may sue an unknown defendant if he, among other things,
“identif[ies] and serve[s] the previously-unknown defendant within 120 days of his filing suit”
(quoting Bumpus v. New York City Transit Auth., 883 N.Y.S.2d 99, 104 (App. Div. 2009)).
Here, Defendant does not dispute that Plaintiff met this requirement.
2

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efforts to identify the correct party before the statute of limitations expired.’” Strada, 2014 WL
3490306, at *5 (quoting Justin v. Orshan, 788 N.Y.S.2d 407, 408 (App. Div. 2005)); see also
Sims v. Electrolux Home Prods., Inc., No. 13-CV-625, 2014 WL 4828151, at *10 (N.D.N.Y.
Sept. 29, 2014) (same). Federal and New York courts have held that where there is no indication
in the record that a plaintiff has exercised due diligence prior to the expiration of the statute of
limitations, a plaintiff is not entitled to make use of the “John Doe” procedure provided in CPLR
§ 1024. See, e.g., Vasconcellos, 2014 WL 4961441, at *9 (noting that “[n]othing before the
[c]ourt indicate[d] that [the plaintiff] took any steps to ascertain the [o]fficer [d]efendants’
identities prior to retaining counsel[,] . . . . [t]he declaration submitted by [the plaintiff’s]
attorney contain[ed] no indication that he exercised ‘due diligence’ to identify the [o]fficer
[d]efendants before [the expiration of the statute of limitations[,]” and the plaintiff’s attorney
“did not file a Valentin demand or take any other steps to identify the [o]fficer [d]efendants until
after the initial conference [held after the relevant statute of limitations expired], when the court
(not counsel) entered a Valentin order”); JCG, 2014 WL 1630815, at *14 (concluding that the
plaintiff could not satisfy the first requirement of § 1024 because he waited until the statute of
limitations had nearly run to file his complaint, and “appear[ed] to have expended no efforts at
all to identify the [i]ndividual [d]efendants in the three years [that followed the events giving rise
to the plaintiff’s allegations], . . . . [such as] “serv[ing] discovery demands upon the known
parties, [seeking] disclosures pursuant to a Freedom of Information Law request, or writ[ing]
letters to the Attorney General’s Office” (internal quotation marks omitted)); Williams v. United
States, No. 07-CV-3018, 2010 WL 963474, at *13 (S.D.N.Y. Feb. 25, 2010) (holding that
despite the plaintiff’s “limitations, given his incarceration and pro se status,” the plaintiff did not
show that “he exercised some due diligence in an attempt to identify the [i]ndividual

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[d]efendants prior to filing the [c]omplaint[,]” when the plaintiff “provided no information
regarding his pre-filing efforts to identify the [i]ndividual [d]efendants . . . . [and] [d]espite th[e]
[c]ourt’s request that [the] [p]laintiff provide additional details [about his due diligence], [he]
merely wrote that he [had] made his best effort to carry out the case accordingly” (italics and
internal quotation marks omitted)); Temple, 933 N.Y.S.2d at 323 (concluding that “the plaintiff
failed to exercise due diligence to discover the identity of the John Doe defendants prior to the
expiration of the statute of limitations[,]” in part, because “[t]here [was] no indication in the
record that the plaintiff engaged in any pre-action discovery or Freedom of Information
Law . . . requests[,]” and when the responses to “some limited discovery demands” were “less
than adequate, the plaintiff failed to promptly seek further discovery, neglected to submit a
properly executed authorization to the disclosing party, and failed to properly and promptly seek
assistance from the [New York] Supreme Court”); cf. Lepore v. Town of Greenburgh, 992
N.Y.S.2d 329, 332 (App. Div. 2014) (holding that the Supreme Court erred in failing to grant the
defendants’ motion to dismiss because plaintiffs failed to identify the relevant John Does and
serve them prior to the expiration of the statute of limitations and “failed to raise a triable issue
of fact as to whether they exercised due diligence in attempting to identify and serve the John
Does such that the applicable limitations periods had tolled or were otherwise inapplicable”).
Here, as mentioned, Plaintiff noted in his original Complaint that he “wrote to [the]
Inspector General for [the] full names and . . . had no respon[s]e.” (Compl. 1.) In his opposition
papers, Plaintiff again explained that in the original Complaint he “named defendant as John Doe
due [sic] that [P]laintiff wrote to Inspector General Todd Thomas and received no response.”
(Pl.’s Mem. 1.) Accordingly, this is not a case where “[n]othing before the [c]ourt indicates that
[Plaintiff] took any steps to ascertain [Defendant’s] identit[y].” Vasconcellos, 2014 WL

12

4961441, at *9. Instead, Plaintiff contacted an official to provide information about Defendant’s
full identity, cf. JCG, 2014 WL 1630815, at *14 (refusing to find the plaintiff acted with due
diligence because, among other things, the plaintiff “expended no efforts at all to identify the
[i]ndividual [d]efendants . . . . . [like] writ[ing] letters to the Attorney General’s Office”), and
notified the Court of his futile effort to discover Defendant’s identity, cf. Williams, 2010 WL
963474, at *12 (finding due diligence lacking where the plaintiff “provided no information
regarding his pre-filing efforts to identify the [i]ndividual [d]efendants . . . . [d]espite th[e]
[c]ourt’s request that [the] [p]laintiff provide additional details”); Temple, 933 N.Y.S.2d at 323
(finding lack of due diligence when, among other things, the plaintiff “failed to properly and
promptly seek assistance from the [New York] Supreme Court” in identifying the John Doe
defendants). Moreover, after the Attorney General notified Plaintiff of the two officers who
worked during the relevant shift by letter dated October 25, 2013, (see Dkt. No. 6), Plaintiff filed
the Amended Complaint within thirty days naming Deacon as the defendant, as mandated by the
Order of Service. (See Order of Service 2; Am Compl. 1.). Cf. Strada, 2014 WL 3490306, at *6
(refusing to find that the plaintiff acted with due diligence under § 1024 because, among other
things, when the defendants provided the plaintiff with the names of the officers involved in the
plaintiff’s arrest prior to the expiration of the statute of limitations, the plaintiff did not attempt to
amend the complaint).
Defendant contends that Plaintiff cannot show the due diligence that CPLR § 1024
requires because “[P]laintiff knew in substantial part . . . [D]efendant’s identity at the time of the
incident but did not identify him within the next three years.” (Def.’s Reply 3 n.1.) To support
this assertion, Defendant relies on a grievance that Plaintiff attached to his opposition papers.
The grievance is dated September 9, 2010, four days after the alleged incident occurred, and

13

names “C[.]O. Deagan” as the officer that pushed Plaintiff down the stairs. (See Pl.’s Mem.
unnumbered attachment 1.) Plaintiff also attached a letter to his opposition papers to “ADA
Perez Superint[e]nd[e]nt” dated September 6, 2010, one day after the alleged incident occurred.
In the letter, Plaintiff writes that he was “push[ed] and hit in [the] back by Officer Deagan,” and
“C.O. Deagan” threatened him after he returned from the nurse. (See id. 3, 5.)
The Court is skeptical of Defendant’s invitation to rely on the grievance and letter to
draw an inference against Plaintiff at the motion to dismiss stage. Courts have held that it may
be appropriate to consider materials outside of the Complaint in the pro se context, see
Alsaifullah, 2013 WL 3972514, at *4 n.3, and, in particular, materials that a pro se plaintiff
attaches to his opposition papers, see Agu, 2010 WL 5186839, at *4 n.6 (noting that “[o]n a
motion to dismiss, the Court can consider documents that a pro se litigant attaches to his
opposition papers”). However, this exception to the general rule that a court is not to consider
materials outside of the complaint, see Leonard F., 199 F.3d at 107, derives from the “special
solicitude” that pro se plaintiffs are afforded, Jackson v. Onondoga Cnty., 549 F. Supp. 2d 204,
219 (N.D.N.Y. 2008); see also Rodriguez v. McGinnis, 1 F. Supp. 2d 244, 246–47 (S.D.N.Y.
1998) (“Although material outside a complaint generally is not to be taken into consideration on
a motion to dismiss, the policy reasons favoring liberal construction of pro se complaints permit
a court to consider allegations of a pro se plaintiff in opposition papers on a motion where, as
here, those allegations are consistent with the complaint.”). The Court, therefore, is disinclined
to grant Defendant’s Motion by inferring that Plaintiff failed to exercise due diligence from the
materials that Plaintiff attached to his opposition papers.
Assuming, arguendo, that it is appropriate to consider the grievance and the letter, the
Court rejects Defendant’s conclusion that in light of these documents “it seems that [the due

14

diligence] standard could not be satisfied.” (Def.’s Reply 3 n.1.) Rather, the documents may be
read to support Plaintiff’s statement in his original Complaint that he did not know Deacon’s
“full name[].” (Compl. 1) (emphasis added). Indeed, Plaintiff refers to Defendant in the
grievance and the letter as “Deagan” and in the original Complaint as “C[.]O. Deagan [sic]
younger brother.” Rather than conclusively establish that Plaintiff did not exercise due diligence
in identifying Defendant, the documents suggest that Plaintiff did not know Defendant’s full
name, and therefore, at the very least, there is an “issue of fact as to whether [Plaintiff] exercised
due diligence in attempting to identify and serve [Defendant].” Lepore, 992 N.Y.S.2d at 332.
This is not, then, a case where a statute of limitations “defense appears on the face of the
complaint[,]” warranting dismissal. Staehr, 547 F.3d at 425. Instead, because of Plaintiff’s
effort to identify Defendant through the inspector general, his notification to the Court of these
efforts, and his amendment naming Deacon as the defendant when the Attorney General
disclosed Deacon’s full identity pursuant to the Order of Service, the Court finds at this stage
that Plaintiff acted with due diligence to meet the first requirement of § 1024.
Plaintiff also satisfies the second requirement of § 1024. As an initial matter, the Court
notes that Defendant has not addressed whether the original Complaint sufficiently notified him
that he was the intended defendant. See Vallade v. Fischer, No. 12-CV-231, 2014 WL 5481881,
at *9 (W.D.N.Y. Oct. 29, 2014) (report and recommendation), adopted by 2014 WL 5481881
(recommending denial of part of the defendants’ motion for summary judgment based on the
plaintiff’s failure to identify and substitute one defendant as the John Doe defendant prior to the
expiration of the statute of limitations because the defendants made no attempt to address either
of the two requirements under § 1024). In any event, the Court finds that Plaintiff “describe[d]
the John Doe party ‘in such form as . . . fairly apprise[d] [Deacon] that [he was] the intended

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defendant.’” Hogan, 738 F.3d at 519 (quoting Bumpus, 883 N.Y.S.2d at 104). As discussed
above, in the original Complaint, Plaintiff alleged that the John Doe defendant worked at
Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m. [to] 3[]
p[.]m. shift in D-Block, Complex 1.” (Compl. 1.) In parenthesis, Plaintiff noted “C[.]O.
Deagan, [h]e has old [sic] brother by same name.” (Id.) As “Defendant No. 1,” Plaintiff listed
“John Doe (C[.]O. Deagan younger brother).” (Id.). Moreover, Plaintiff’s detailed description
of the incident in the original Complaint provided sufficient information about the identity of
Defendant, the location of the incident, and Defendant’s precise conduct. The alleged facts read,
in part, that:
Officer John Doe (C.O. Deagan) went to [Plaintiff’s] cell (cell 8) in D-Block
because they had called medication and [Plaintiff’s] cell was not unlocked for
[him] to go, [sic] [h]e started hitting and pushing [Plaintiff] down the inside stair
and kicking [Plaintiff’s] boots as to cause [Plaintiff] to fall, other inmates were
present inside . . . watching t.v. [sic] . . . when he preceded [sic] to hit and push
[Plaintiff] using excessive force all the way outside the Housing Block he pushed
[Plaintiff] with more force down the stair in front of D-Block.
(Compl. 3.) This provided sufficient information about Defendant. See Maurro, 795 N.Y.S.2d
at 868 (finding that the plaintiff’s description of “‘Jane Doe’ as ‘a/k/a ‘Jane’ Usa, M.D., the
physician who treated [the plaintiff] at [the defendant’s] office whose name is fictitious as
presently unknown’ was sufficient for [the] purpose” of fairly apprising the defendant that she
was the intended defendant); Duncan v. City of New York, No. 11-CV-3901, 2014 WL 3530858,
at *3 (E.D.N.Y. July 15, 2014) (finding the defendant “was fairly apprised that he was one of the
John Doe defendants against whom [the plaintiff] intended to assert a claim” because, among
other things, the relevant complaint “made clear that there was an additional unidentified officer
whom [the plaintiff] specifically described as having participated in holding him down on the
barbershop floor and punching and kicking him—the precise conduct he . . . ascribe[d] to [the

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defendant]" in his operative complaint). Plaintiff also included the address of the facility,
information identifying the complex, information identifying the stairs at which the alleged
incident occurred, and II :21 a.m . as the approximate time of the incident. (Compl. 2, 4.)
Plaintiff's original Complaint, therefore, "describes with particularity the date, time, and location
of the alleged . .. incident." Hogan , 738 F.3d at 519. Accordingly, Plaintiff satisfies the second
requirement of§ I 024. His claims against Deacon, therefore, are not time-barred under Rule
IS(c)(l)(A).
III. Conclusion
In light of the foregoing analysis, the Court denies Defendant's Motion to Dismiss. The
Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.)
SO ORDERED.
DATED:

-as ,

November
2014
White Plains, New York

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