Brown v. Pritchard et al

Filing 117

ORDER OF MAGISTRATE JUDGE HUGH B. SCOTTORDER re 116 MOTION re 108 MOTION to Amend/Correct 1 Complaint, 106 MOTION for Protective Order and/or modification of Order filed at Docket No. 96 with cert of s ervice filed by Antonio Brown, 108 MOTION to Amend/Correct 1 Complaint filed by Antonio Brown, 106 MOTION for Protective Order and/or modification of Order filed at Docket No. 96 with cert of service filed by Hodge, Schuessler, B. F ischer, Marinaccio, Swack, Pritchard, J. ConwayPlaintiff's motion for leave to amend the Complaint (Docket No. 108) is granted; plaintiff is to file Second Amended Complaint including allegations against Khahifa by 6/8/20 11. Once filed, the Clerk of Court is instructed to have the U.S. Marshal serve the Second Amended Complaint upon the new defendant. Motions terminated: 108 MOTION to Amend/Correct 1 Complaint filed by Antonio Brown.As for plaintiff's m otion for leave to amend the Complaint to add five new defendants (Docket No. 116), Responses due by 6/8/2011, Replies due by 6/23/2011, and motion deemed submitted (without oral argument) on 6/23/2011.As for defense pending motion for a Protective Order (Docket No. 106), any reply remains due by 5/25/2011 (see Docket No. 115) and that motion will be deemed submitted (without oral argument) on 5/25/2011.So Ordered. Signed by Hon. Hugh B. Scott on 5/13/2011. (DRH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ANTONIO BROWN,
Plaintiff,

Hon. Hugh B. Scott
v.
09CV214S
Order
OFFICER PRITCHARD, et al.,
Defendants.

Before the Court is the pro se plaintiff’s latest motion for leave to amend the Complaint
to add a new defendant, Sibatu Khahifa (Docket No. 108; see letter of Assistant Attorney General
Kim Murphy to Chambers, May 3, 2011, hereinafter “Murphy letter”). After some extensions
(see Docket Nos. 109, 113), this Court issued a briefing schedule in which defendants were to
respond by May 11, 2011, and plaintiff could reply by May 25, 2011 (Docket No. 115), with this
motion (as well as a defense motion for a Protective Order, Docket No. 106) deemed submitted
(without oral argument) on May 25, 2011 (Docket No. 115). Defense counsel wrote to the Court
on May 3, 2011, indicating that she had no objection to granting leave to amend, reserving the
defense right to move to dismiss this claim at a later time (Murphy letter).
Also pending is the defense motion for a Protective Order (Docket No. 106); this Court
will address this motion separately. Plaintiff also filed (Docket No. 116, dated Apr. 25-26, 2011,
filed May 2, 2011) another motion for leave to amend the Complaint, here to add five other
Department of Correctional Services’ (“DOCS”) officials. This Order only considers plaintiff’s
earlier motion for leave to amend (Docket No. 108).

BACKGROUND
This is a civil rights action commenced by an inmate, alleging that defendant corrections
officer Pritchard used excessive force against him during a pat down frisk conducted on May 4,
2008, at Attica Correctional Facility (Docket No. 1, Compl.). Plaintiff then filed a grievance
against Officer Pritchard. On June 3, 2008, Pritchard allegedly denied plaintiff access to the
showers. Plaintiff complained about this to defendant Sergeant Marinaccio, but the sergeant
ignored the complaint, instead telling Pritchard about it. Plaintiff then alleges that Pritchard and
defendants Officers Swack, Schuessler, and Sergeant Hodge were waiting for plaintiff in his cell
where he was pat frisked, smacked in the head and asked by Pritchard whether plaintiff liked
making complaints. Swack then grabbed plaintiff’s shirt and asked if he was a “tough guy,” and
after plaintiff answered, Swack allegedly grabbed plaintiff from behind in a bear hug and threw
plaintiff to the ground. Officers then allegedly assaulted, kicked, and punched the prone plaintiff.
(Id. at 3-4.) Plaintiff filed another grievance from the June 3 incident (id. at 4). Plaintiff claims
that Pritchard made the grievance from the May 4 incident “disappear” but it was found as filed
(id. at 4-5). Plaintiff then was placed in the Special Housing Unit for nine months (id. at 5).
Plaintiff alleges “abusive” use of force and retaliation under the First, Eighth, and Fourteenth
Amendments (id. at 5-6).
Plaintiff then amended this Complaint to allege claims against DOCS Commissioner
Brian Fischer and Attica Correctional Facility Superintendent James Conway (Docket No. 17).
The new claim alleges that Pritchard was feared by inmates and civilians and was well known for
abusing inmates (including raping inmates and stealing from them) (id. ¶ 20; see Docket No. 19,
Pl. Motion ¶ 3). Plaintiff contends that Fischer and Conway knew about Pritchard and
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nevertheless allowed him to work at Attica Correctional Facility in deliberate disregard for the
safety of inmates (Docket No. 17, Am. Compl. ¶ 21), including plaintiff.
After discovery, including discovery related to a then-pending defense summary
judgment motion by defendants Conway and Fischer (see also Docket Nos. 81 (motion), 97
(Report & Recommendation recommending denying motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56(d)), plaintiff now moves to add “S. Khaharf” as a defendant
(Docket No. 108). In response, defendants correct the name, and state that they have no
objection to plaintiff amended the Complaint to assert claims against “Sibatu Khahifa” (Murphy
letter).
DISCUSSION
I.

Plaintiff’s Motion for Leave to Amend to Add Khahifa as a Defendant (Docket No. 108)
Under Federal Rule of Civil Procedure 15(a)(2), amendment of pleadings after the time to

do so as of right requires either written consent of all parties or by leave of the Court. Motions
for leave to amend the complaint are to be freely given when justice requires. Granting such
leave is within the sound discretion of the Court. Foman v. Davis, 371 U.S. 178, 182 (1962);
Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971). “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.’” Foman, supra, 371 U.S. at
182 (quoting Fed. R. Civ. P. 15(a)).

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If a plaintiff is proceeding (as here) pro se, leave to amend should be freely granted.
Frazier v. Coughlin, 850 F.2d 129, 130 (2d Cir. 1988) (pro se should be freely afforded
opportunity to amend). In general, the pleading of a pro se plaintiff, is to be liberally construed,
see Haines v. Kerner, 404 U.S. 519 (1972) (per curiam).
“Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement
of the claim showing that the pleader is entitled to relief.’ Specific facts are not
necessary; the statement need only “‘give the defendant fair notice of what the . . .
claim is and the grounds upon which it rests.’” Bell Atlantic Corp. v. Twombly,
[550 U.S. 544, 555] (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
In addition, when ruling on a defendant’s motion to dismiss, a judge must accept
as true all of the factual allegations contained in the complaint. Bell Atlantic
Corp., supra, at [550 U.S. at 555-56] (citing Swierkiewicz v. Sorema N. A.,
534 U.S. 506, 508, n. 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989);
Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). In Erickson, the Court held that the
Tenth Circuit departed from the liberal pleading standards of Rule 8(a)(2) by dismissing a pro se
inmate’s claims.
“The Court of Appeals’ departure from the liberal pleading standards set forth by
Rule 8(a)(2) is even more pronounced in this particular case because petitioner
has been proceeding, from the litigation’s outset, without counsel. A document
filed pro se is ‘to be liberally construed,’ [Estelle v. Gamble, 429 U.S., 97, 106
(1976)], and ‘a pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers,’ ibid. (internal
quotation marks omitted). Cf. Fed. Rule Civ. Proc. 8(f) (“All pleadings shall be
so construed as to do substantial justice”).
551 U.S. at 94; see Boykin v. Keycorp, 521 F.3d 202, 213-14 (2d Cir. 2008). Thus, the pro se
plaintiff’s Complaint has to be construed “more liberally” than one filed by counsel, Boykin,
supra, 521 F.3d at 214, presumably his amended pleading also has to be so liberally construed.

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The amendment here adds another DOCS employee as a defendant and charging him with
supervisory liability due to his role in reviewing grievances lodged against defendant Pritchard
(Docket No. 108, Pl. Aff. ¶¶ 2, 4-6).
Plaintiff did not file with his motion a proposed Amended Complaint1, cf. W.D.N.Y. Loc.
Civ. R. 15(a) (effective Jan. 1, 2011). Since defendants do not object (sending their written
consent, cf. Fed. R. Civ. P. 15(a)(2)) and plaintiff proceeding pro se and the liberality of pleading
allowed to pro se parties, plaintiff’s motion for leave to amend is granted; he is to file the
Second Amended Complaint with the new allegations against Khahifa only by June 8, 2011.
Once filed, the Clerk of Court is instructed to have the United States Marshal serve the Amended
Complaint upon the new defendant Khahifa. It is presumed from defense counsel’s lack of
objection to this latest Amended Complaint (see Murphy letter) that she will consent to accept
service of this amended pleading for all of the other named defendants in this action.
II.

Plaintiff’s New Motion for Leave to Amend the Complaint (Docket No. 116)
Plaintiff also filed a motion to add five other Corrections Department officials (chief of

investigations for the Inspector General of DOCS Vernon Fonda; former Inspector General
Richard Roy; three John Doe officials, the unnamed director of the Bureau of Labor Relations for
DOCS, the chief investigator for the Bureau of Labor Relations, and the Deputy Commissioner
of DOCS) as defendants. Defendants, while consenting to the amendment to add Khahifa, have
not stated their position as to adding these five new defendants.

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Nor did he do so for his other proposed amended Complaint to add five more defendants,
Docket No. 116.
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Pursuant to this Court’s Local Civil Rule 15(a) (effective Jan. 1, 2011), plaintiff is to file
an unsigned copy of the proposed Amended Complaint by May 27, 2011; responses to this
motion are due by June 8, 2011, and any reply is due by June 23, 2011, and this motion will be
deemed submitted (without oral argument).
III.

Defendants’ Motion for a Protective Order (Docket No. 106)
As for the remaining pending motion by defendants for a Protective Order (Docket

No. 106), the current briefing schedule (Docket No. 115) remains as previously ordered; any
reply to this motion is due by May 25, 2011, and this motion will be deemed submitted, without
oral argument, on May 25, 2011.
So Ordered.

/s/ Hugh B. Scott
Honorable Hugh B. Scott
United States Magistrate Judge
Dated: Buffalo, New York
May 13, 2011

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