Booker v. Griffin et al

Filing 205

DECISION AND ORDER: For the foregoing reasons, plaintiff's application for leave to file a Third Amended Complaint is: (I) GRANTED IN PART to the extent plaintiff may (a) join Joseph Bellnier as adefendant and (b) add the proposed Eighth Ame ndment claim; and (2) DENIED IN PART to the extent that plaintiff (a) must strike the First Amendment retaliation claims against defendants Chappius and Keller from the proposed Third Amended Complaint and (b) may NOT join Anthony J. Annucci, James O'Gorman and John Does as defendants. Plaintiff shall file a Third Amended Complaint, consistent with the above findings, within seven days of the date of this Decision and Order. SO ORDERED. (Signed by Magistrate Judge Paul E. Davison on 11/6/2020) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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AMIN DOSHAWN BOOKER,
Plaintiff,

DECISION AND ORDER
-against-

16 Civ. 0072 (NSR) (FED)
THOMAS GRIFFIN, Superintendent of
Green Haven Facility, et al.,
Defendants.

PAUL E. DAVISON, U.S.MJ.:

I. INTRODUCTION
On or about September 17, 2018, plaintiff Amin Doshawn Booker filed apro se Second
Amended Complaint ("SAG") pursuant to 42 U.S.C. § 1983, alleging violations of his federal
constitutional rights in connection with his incarceration at the Green Haven and Elmira
Correctional Facilities. Dkt. #104. Familiarity with the specific allegations in thepro se SAG is
assumed. On September 5, 2019, the case was referred to me for general pretrial supervision.
Dkt. #154. On January 29, 2020, pro bono counsel entered the case on plaintiffs behalf. Dkt.
#177. On February 19, 2020, I issued an Amended Civil Case Discovery Plan and Scheduling
Order ("Discovery Plan") which, inter alia, extended the time for completion of fact discovery
to May 22, 2020. Dkt #181. On August 3, 2020, I approved a subsequent Discovery Plan
which, inter alia, extended the time for completion of fact discovery to November 30, 2020.
Dkt.#197.
On September 24, 2020, plaintiffs counsel filed a letter application for leave to file a

Third Amended Complaint ("TAG") to (1) add an Eighth Amendment claim and (2) join
additional defendants (Acting Commissioner ofDOCCS Anthony J. Annucci, Acting Executive

mty Commissioner of Correctional Facilities James O'Gorman, Deputy Commissioner of
Correctional Facilities Joseph Bellnier and certain unidentified John Does), whom plaintiff
alleges are liable for the deprivation of his Due Process and Eighth Amendment rights. Diet.
#200. Defendants opposed this application. Dkt#201. For the reasons that follow, plaintiff s

application is GRANTED IN PART.2

II. STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 15(a)(2), the Court "should freely give leave [to
amend] when Justice so requires." Courts follow "the same standard ofliberality afforded to
motions to amend under [FRCP] Rule 15" in deciding whether to allow Joinder. Robledo v.
Number 9 Parfumc Leasehold, No. 12 Civ. 3579, 2013 WL 1718917, at *3 (S.D.N.Y. Apr. 9,
2013) (Internal quotation marks and citation omitted). Notwithstanding this ordinarily lenient
standard, the "denial of leave to amend has long been held proper" for reasons such as "undue
delay, bad faith, dilatory motive, and futility." Loreley Fin. ('Jersey') No, 3 Ltd. v. Wells Fargo
See.. LLC, 797 F.3d 160, 190 (2d Cir. 2015). "[I]t is within the sound discretion of the district

* The proposed TAG also adds factual allegations in support of existing claims.
Although defendants have not objected to the bulk of the proposed supplemental factual
allegations, they assert several narrow objections which are addressed below.
A Report and Recommendation pursuant to 28 U.S.C. § 636(b)(l)(B) is not required
because the partial denial of plaintiffs motion to amend is not dlspositive of any existing claims.
See Jean-Laurent v. Wilkerson, 461 F.App'x 18, 25-26 (2d Cir. 2012) (Report and
Recommendation required where Magistrate Judge granted plaintifFs motion to file a second
amended complaint to the extent It did not contain any state law claims, which amounted to
dismissal of plaintiff s existing state law claims that had survived a motion to dismiss); see also,
e.£..Erdo£anv.Nassau County, No. 10-CV-05837, 2014 WL 1236679, at *1 (E.D.N.Y. Mar. 25,

2014) (Memorandum and Order denying plaintiffs motion to amend the complaint to add two
additional defendants); In re Mission Constr. Litie., Nos. 10 Civ. 4262, 10 Civ. 9344, 1 1 Civ.
1565,2013 WL 4710377,at *! (S.D.N.Y. Aug. 30, 2013) (Opinion and Order denying motion to
join a defendant and file a second amended complaint).
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court to grant or deny leave to amend." McCarthv v. Dun & Bradstreet Corp., 482 F.3d 184, 200

(2d Cir. 2007).
However, "if the motion [to amend the complaint] is filed after the deadline imposed by
the district court in its scheduling order," plaintiff must show "good cause" for its failure to

timely amend. Werkins v. Andrews. 526 F. App'x 94, 96 (2d Cir. 2013) (citing FRCP 16(b)(4)).
Whether good cause exists turns on the diligence of the moving party." Holmes v. Grubman,
568 F.3d 329, 335 (2d Cir. 2009) (quotation marks and citation omitted). Thus, in order to
demonstrate good cause, plaintiff must demonstrate that, "despite his having exercised diligence,
the applicable deadline could not have been reasonably met." Saloman v. Adderley Indus.. Inc.,
960 F. Supp.2d 502, 507 (S.D.N.Y. 2013). "Conversely, a movant fails to satisfy this burden
when the proposed amendment is based on information the party knew or should have known in
advance of the applicable deadline." Id. If plaintiff demonstrates good cause under FRCP 16,
the Rule 15 standard applies to determine whether leave to amend should be granted. Beckett v.
Incorporated Village ofFreeport, No. ll-CV-2163, 2014 WL 1330557, at *5 (E.D.N.Y. Mar. 31,

2014).
HI. DISCUSSION
A. FRCP 16fby4^
The operative Discovery Plan does not address the time frame forjomder of additional
parties or amendment of pleadings. Dkt. #197. The previous Discovery Plan (and the first one
issued after pro bono counsel appeared) states that the deadlines forjoinder and amendment of
pleadings are "to be determined by the Court." Dkt. #1 81. Accordingly, plaintiffs application
is timely under the operative Discovery Plan.

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B. FRCP 15(a}(2}
Defendants argue, at the outset, that plaintiff is precluded from amending his complaint
because Judge Roman has already twice denied plaintiffs application to file a third amended
complaint. See Dkt. #137 (June 7, 2019), #151 (August 1, 2019). However, plaintiff was
proceeding pro se at the time of those rulings. Pro bono counsel entered the case on plaintiffs
behalf at the end of January 2020, followed by the entry of an amended Discovery Plan and
commencement of fact discovery. Plaintiff argues, and I agree: "Justice requires revisiting the
Court's determmatlon in view of those developments."

Second, defendants object to the proposed TAG to the extent it alleges First Amendment
retaliation claims against defendants Chappius and Keller. As defendants correctly note, Judge
Roman dismissed those claims on June 7, 2019. Dkt. #137, at 13. Accordingly, the First
Amendment retaliation claims against Chappius and Keller must be stricken from the proposed
TAG.
Third, defendants assert a rather vague objection to plaintiffs proposed Eighth
Amendment claim. In his proposed Ninth Cause of Action, plaintiff alleges that defendants
subjected him to solitary confinement for five years, in violation of his Eighth Amendment right
to be free from cruel and unusual punishment. Dkt. #200-2, at 35-36. Plaintiff asserts: (1) the
SAG alleges that defendants violated his due process rights by subjecting him to unjustifiable,
indefinite, punitive solitary confinement; and (2) that the SAG delineates the harm plaintiff
suffered as a result. Defendants argue that the proposed claim "belies the facts in this case and a
simple reading of the SAC." Dkt. #201, at 2. I disagree. As plaintiff points out, the proposed
Eighth Amendment claim merely asserts an alternative legal theory as a basis to seek
compensation for injuries allegedly stemming from his prolonged solitary confinement.
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Fourth, defendants argue thatjoinder would be futile because plaintiff proffers no
supporting factual basis. Dkt. #201, at 2-3. Plaintiff seeks joinder of defendants Annucci,
0 German, Bellnier and "certain unidentified John Does on the ground that "[d]iscovery has
revealed that these Additional Defendants are liable for the Due Process and Eighth Amendment
harms that Mr. Booker alleges in the SAG and TAG." Diet. #200, at 1. In support of his
argument, plaintiff proffers specific transcript pages from the depositions of defendants
Chappius and Keller which, plaintiff maintains, reveal that each of the defendants he seeks to
join were "involved in or made final determinations in Mr. Booker's 60-day administrative
segregation ((Ad Seg') reviews, causing Mr. Booker to be continuously detained in solitary
confinement since October 2015." Id. Contrary to plaintiffs assertion, the proffered deposition
testimony arguably establishes only that the "Deputy Commissioner" was involved in plaintiffs
Ad Seg reviews. See Dkt. #200-3, #200-4. Thus, while plaintiff proffers a basis forjoinder of
Deputy Commissioner Bellnier, he fails to proffer any factual basis forjoinder ofAnnucci,
O'Gorman or "certain unidentified John Does." Accordingly, plaintiffs application for leave to
join Annucci, O'Gorman and "certain unidentified John Does" is denied.
Fifth, defendants argue that plaintiff unduly delayed in seeking amendment. Dkt. #210,
at 3. "In the Second Circuit, while a plaintiff must provide an explanation for a delay where
significant time has passed prior to filing a motion to amend, mere delay, absent a showing of
bad faith or undue prejudice, does not provide a basis for a district court to deny the right to
amend." Atakhanova v. Home Family Care, Inc., No. 16 Civ. 6707,2019 WL 2435856, at *3
(E.D.N.Y. Feb. 19, 2019) (quotation marks, citations and alterations omitted). See Pearlstein v.
BIackBerrv Ltd., No. 13 Civ. 7060,2017 WL 4082306, at *2 (S.D.N.Y. Sept. 13, 2017)
("Alleging that the plaintiff could have moved to amend earlier because he had knowledge of

facts underlying the proposed amendment is insufficient to demonstrate undue delay.");

Agerbrink v. Model Service LLC, 155 F. SuppJd 448, 452 (S.D.N.Y. 2016) ("Simply alleging
that the plaintiff could have moved to amend earlier than she did, however, Is insufficient to
demonstrate undue delay."). Here, as plaintiffs counsel points out, discovery in this case "did
not proceed in earnest until earlier this year, after Mr Booker engaged our firm and [djefendants
dropped various objections to discovery based on Mr. Booker's pro se status." Dkt. #200, at 2.
Further, plaintiffs counsel asserts that the factual basis for the proposed Joinder came to light
during this discovery period. Id. Moreover, plaintiffs counsel asserts that the ongoing
pandemic has adversely impacted their ability to communicate with plaintiff regarding case
strategy. Under the totality of the circumstances, plaintiffs counsel has articulated a plausible
explanation for the timing of the instant application.

Finally, defendants also assert that they will be prejudiced if plaintiff is allowed to file
the TAC. "Although prejudice to the opposing party has been described as the most important
reason for denying a motion to amend, only undue prejudice warrants denial of leave to amend."
Agerbrink, 155 F. Supp.3d at 454 (quotation marks, citations and alterations omitted). "To
determine prejudice, courts consider whether amendment would (I) require the opponent to
expend significant additional resources to conduct discovery and prepare for trial; (ii)
significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a
timely action in another Jurisdiction." DeJesus v. Subway IP Inc., No. 16 Civ. 6773, 2018 WL
3442888, at *2 (S.D.N.Y. July 17, 2018) (quotation marks and citations omitted). "Courts also
consider the particular procedural posture of the case." Agerbrink, 155 F. Supp.3d at 454. "The
non-moving party bears the burden of demonstrating that substantial prejudice would result were
the proposed amendment to be granted." Id. (quotation marks and citation omitted). Here,
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defendants claim they will be prejudiced if plaintiff s application is granted because "it is
unclear how discovery can be completed in the same time frame as previously set by the Court."
Dkt. #201, at 3. In other words, defendants assert that the amendment would necessitate
additional discovery and resources. "This alleged prejudice, on its own, does notjustify denying
leave to amend." DeJesys, 2018 WL 3442888, at *3. In any event, plaintiff avers that the
proposed amendment would necessitate limited additional fact discovery which could be
completed within the existing deadline (by November 30, 2020). Dkt. #200, at 3-4. At bottom,
"although the amendment may warrant additional discovery, it should not significantly prolong
the resolution of the action." Agerbrink, 155 F. Supp.3d at 455. Accordingly, defendants have
not demonstrated that they will be unduly prejudiced by the proposed amendment.

IV. CONCLUSION
For the foregoing reasons, plaintiffs application for leave to file a Third Amended

Complaint is: (1) GRANTED IN PART to the extent plaintiff may (a) join Joseph Bellnier as a
defendant and (b) add the proposed Eighth Amendment claim; and (2) DENIED IN PART to
the extent that plaintiff (a) must strike the First Amendment retaliation claims against defendants

Chappius and Keller from the proposed Third Amended Complaint and (b) may NOT join
Anthony J. Annuccl, James O'Gorman and John Does as defendants.

Plaintiff shall file a Third Amended Complaint, consistent with the above findings,
within seven days of the date of this Decision and Order.
Dated: November G ,2020 SO ORDERED.
White Plains, New York

PAUL E. DAVISON, U.S.MJ.

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