Smith v. Baugh et al

Filing 25

DECISION AND ORDER re 21 MOTION to Amend/Correct 1 Complaint filed by Laurie Ann Smith is DENIED. Signed by Hon. Leslie G. Foschio on 4/23/2018. (TAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
__________________________________
LAURIE ANN SMITH, Individually and as
Administratrix of the Estate of
Thomas J. Blancke, Sr., deceased,
Plaintiff,

DECISION
and
ORDER

v.
16-CV-906V(F)
ADRIAN BAUGH,
GEORGE BROWN,
MICHAEL WOODARD,
JOHN AND JANE DOES,
Defendants.
___________________________________
APPEARANCES:

THE COCHRAN FIRM
Attorneys for Plaintiff

STEPHANIE ROSE CORREA,
DEREK SCOTT SELLS, of Counsel
55 Broadway, 23rd Floor
New York, New York 10006

ERIC SCHNEIDERMAN
ATTORNEY GENERAL, NEW YORK STATE
Attorney for Defendants
CHRISTOPHER L. BOYD,
Assistant Attorney General, of Counsel
Main Place Tower
350 Main Street, Suite 300A
Buffalo, New York 14202
In this Section 1983 action, referred to the undersigned by District Judge Vilardo
for all nondispositive pretrial motions by order filed June 14, 2017 (Dkt. 12), 1 Plaintiff

1

Pretrial rulings on motions to amend pursuant to Fed.R.Civ.P. 15 referred to a magistrate judge
pursuant to 28 U.S.C. § 636(b)(1)(A) (“§ 636(b)(1)(A)”) are non-dispositive. See Fielding v. Tollaksen,
510 F.3d 175, 178 (2d Cir. 2007) (denial of plaintiff’s motion to amend based on futility subject to review
as a non-dispositive motion under clearly or erroneous or contrary to law standard pursuant to §
636(b)(1)(A) and Fed.R.Civ.P. 72(a)); Hall v. Norfolk Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006)
(magistrate judge’s denial of plaintiff’s motion to amend to add time-barred claim against new defendant
pursuant to Fed.R.Civ.P. 15(c)(1)(C) non-dispositive for purposes of review under Fed.R.Civ.P 72(a) as
such denial “did not terminate” plaintiff’s lawsuit but only prevented plaintiff from adding party as a
defendant); Midatlantic Framing, LLC v. Varish Constr. Co., 2017 WL 4011260, *24 n. 1 (N.D.N.Y. Sept.

alleges that named Defendants (“Baugh,” “Brown,” and “Woodard”) (collectively,
“named Defendants”), and unnamed defendants designated as “John and Jane Does”
(“the Does” or “the Doe Defendants”), violated the Eighth Amendment rights of Thomas
J. Blancke, Sr., Plaintiff’s husband (“Blancke” or “decedent”), while Blancke was
incarcerated at the Five Points Correctional Facility in Romulus, New York (“Five
Points”). Plaintiff also asserts a state claim for loss of consortium. Specifically, Plaintiff
alleges that in retaliation for Blancke’s disruptive behavior stemming from his alleged bipolar and ADHD disorders (“Blancke’s disorders”) for which Plaintiff alleges Defendants
failed to provide adequate treatment prior to the incident giving rise to Plaintiff’s claims
(“the Blancke incident”), Dendants assigned another inmate, Brian J. Karris (“Karris”),
who had been convicted of assaulting a disabled African-American as a hate crime as
Blancke’s cellmate 2 anticipating that Karris would physically assault Blancke and then
failed to intervene to protect Blancke after the assault occurred and failed to provide
prompt medical assistance to Blancke resulting in Blancke’s death. During the early
morning hours of December 14, 2013, following Karris’s entry, the day before on
December 13, 2013, into Blancke’s cell, Karris and Blancke engaged in a fight resulting
in the brutal beating death of Blancke for which Karris was subsequently tried and
convicted in Steuben County Court of Second Degree Murder in November 2015.
Before the court is Plaintiff’s motion for leave to file an amended complaint in which

11, 2017) (ruling by magistrate judges denying motions to amend are non-dispositive as such rulings do
not dispose of a claim or defense; court follows majority of Second Circuit caselaw holding such motions
to be non-dispositive) (citing Hall, 469 F.3d at 594-95); contra Briggs v. County of Monroe, 215 F.Supp.3d
213, 215 (W.D.N.Y. 2015) (holding denial of motions to amend based on futility of proposed claims barred
by statute of limitations are dispositive for purposes of Rule 72(a) requiring de novo review) (citing
caselaw).
2 Referred to as “double-celling” or “double-bunking.”
2

Plaintiff seeks to name 29 individuals supervisory officials, corrections officers and other
employees of the New York State Department of Corrections and Community
Supervision (“DOCCS”) (“proposed defendants”), which maintains Five Points in
substitution for the previously unnamed Doe Defendants named in the Complaint
alleging that like the three Defendants each proposed defendant “participated directly in
the unlawful activity as alleged in the Complaint” (Dkt. 21) (“Plaintiff’s motion”). Plaintiff
received on February 13, 2017, the names of the 29 proposed defendants, Five Points
supervisory officers, corrections officers and other DOCCS personnel who had some
connection with the Blancke incident, from the State of New York (“the State”) as a
result of the State’s compliance with Plaintiff’s discovery requests served in connection
with Plaintiff’s New York Court of Claims action which Plaintiff commenced on April 8,
2015, based on the State’s alleged negligence in causing Blancke’s death.
Plaintiff’s motion is supported by Plaintiff’s Memorandum Of Law In Support Of
Plaintiff’s Motion For Leave To Amend The Complaint (Dkt. 21-1) (Plaintiff’s
Memorandum”), filed October 20, 2017, together with Plaintiff’s exhibits 1 – 11. In
support of Plaintiff’s motion, Plaintiff explains that difficulties were encountered in
obtaining information regarding the actual identity of all persons responsible for
Blancke’s lack of proper treatment and double-celling with Karris expecting that Karris’s
assignment would provoke a fight in order to “teach” Blancke “a lesson” for his
supposed bad behavior as an inmate, Complaint ¶¶ 19, 20. Plaintiff also contends
Plaintiff’s diligence in obtaining such information warrants granting Plaintiff’s motion
pursuant to Fed.R.Civ.P. 15(c)(1)(C) (“Rule 15(c)(1)(C)”) and the New York Civil
Practice Law & Rules § 1024 (“N.Y.C.P.L.R. § 1024” or “§ 1024”) despite the fact that
3

the applicable three-year statute of limitations governing Plaintiff’s action expired on
December 14, 2016. Rule 15(c)(1)(C) permits a new party to be substituted for a Doe
defendant after expiration of the statute of limitations if the new party had sufficient
notice and should have known that but for plaintiff’s mistake as to the party’s identity the
party would have been sued provided such information is provided within 120 days of
the filing of the original complaint. Section 1024 is applicable here under Fed.R.Civ.P.
15(c)(1)(A) because it is part of the applicable New York statute of limitations scheme
which could permit substitution, after expiration of the New York three-year statute of
limitations, by allowing substitution if the party seeking substitution of an unidentified
party was unaware of such identity and the identity becomes known later. 3 For § 1983
actions arising in New York, New York’s general three-year statute (N.Y.C.P.L.R. § 214)
of limitations for torts is applicable. See Hogan v. Fischer, 738 F.3d 509-17 (2d Cir.
2013) (citing Pearl v. City of Long Beach, N.Y., 296 F.3d 76, 79 (2d Cir. 2002)). It is
well-settled that replacing a named party for a Doe defendant is a change in a party
requiring an amended complaint in accordance with Fed.R.Civ.P. 15(c). See Hogan,
738 F.3d at 517 (citing Aslandis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993)).
On November 13, 2017, Defendants filed Defendants’ Memorandum Of Law In
Opposition To Plaintiff’s Motion (Dkt. 25) (“Defendants’ Memorandum”) contending that
Plaintiff has failed to meet the due diligence and notice requirements of Rule 15(c)(1)(C)

3 “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 (McKinney’s 1962).

4

and § 1024, that Plaintiff’s proposed Amended Complaint fails to state a claim, and
therefore, on either ground, Plaintiff’s motion is futile, see Briggs v. County of Monroe,
2016 WL 1296060, *4 (W.D.N.Y. Mar. 4, 2016) (proposed amendment to add claims by
naming John Doe Defendants may be denied where proposed amendment would be
subject to dismissal and thus futile), report and recommendation adopted, 215
F.Supp.3d 213 (W.D.N.Y. 2016), and, as such, should be denied. See also Foman v.
Davis, 371 U.S. 178, 182 (1962) (leave to amend may be denied were proposed
amendment is found to be, inter alia, futile). Defendants also contend Plaintiff’s motion
lacks a good faith basis and if granted, would be prejudicial to Defendants. Defendants’
Memorandum at 19-23; Plaintiff’s Reply Memorandum Of Law In Further Support Of
Plaintiff’s Motion For Leave To Amend The Complaint, together with Plaintiff’s exhibits
12 – 17 (Dkt. 24-2 through 24-7), was filed November 21, 2017 (Dkt. 24) (“Plaintiff’s
Reply”). Oral argument was deemed unnecessary.
1.

Rule 15(c)(1)(C).
In order to obtain the relation back benefit of Rule 15(c)(1)(C), permitting, as

relevant here, the naming of a John or Jane Doe party by substitution of a correctly
named defendant after expiration of the statute of limitations, the party seeking to
invoke Rule 15(c)(1)(C) must show that within the 90-day period for service of summons
required by Fed.R.Civ.P. 4(m) following the filing of a complaint, the new party to be
named received sufficient notice of a plaintiff’s claim that avoids prejudicing the
proposed new party’s defense, and such party knew or should have known the action
would be brought against him or her “but for a mistake concerning the proper party’s

5

identity.” 4 However, “lack of knowledge of a John Doe defendant’s name does not
constitute a ‘mistake of identity’” for Rule 15(c)(1)(C) purposes. Hogan, 738 F.3d at 518
(quoting Barrow v. Wetherfield Police Dep’t., 66 F.3d 466, 470 (2d Cir. 1995)); see also
Scott v. Village of Spring Valley, 577 Fed.Appx. 81, 82-83 (2d Cir. 2014) (plaintiff’s
unawareness of identity of proposed defendants does not qualify as a mistake for
purposes of Rule 15(c)(1)(C)). In this case, Plaintiff argues that because the Complaint,
filed November 10, 2016, informed Doe Defendants that they were accused of failing to
provide proper medical treatment for Blancke’s disorders, purposefully assigning Karris
as Blancke’s cell-mate expecting Karris would assault Blancke as ‘punishment’ for
Blancke’s supposed misconduct, and the prospective Doe Defendants’ failure to
intervene promptly in Karris’s brutal assault upon Blancke resulting in Blancke’s death,
the Doe Defendants had sufficient notice within the required 90-day period of Plaintiff’s
claims. The Complaint alleges such failure to protect against named Defendants Baugh
and Brown, Complaint ¶¶ 10-11; and named Defendant Woodard is identified as a
DOCCS sergeant, Complaint ¶ 12; however, other than Plaintiff’s general allegation of
Defendants “participating in the unlawful activity” alleged in the Complaint, no specific
allegation of actionable conduct is directed to Woodard. Id. As regards the Doe
Defendants, as with the three named Defendants, other than as generally alleged
against all Defendants, a fair perusal of the Complaint indicates a complete lack of any
descriptive information of the Doe Defendants or their personal involvement in the
events leading to Blancke’s death sufficient to be considered as adequate notice that

4

Fed.R.Civ.P. 4(m) was amended in 2015 to reduce to 90 days the former 120-day period for service.
6

they were the intended targets of Plaintiff’s lawsuit under Plaintiff’s failure to treat and
failure to protect Eighth Amendment claims. See Hogan, 738 F.3d at 519 (plaintiff
required under Rule 15(c)(1)(C) to “describe the John Doe party in such form as will
fairly apprise the party that he is the intended defendant”); Cruz v. Fischer, 175
F.Supp.3d 33, 38 (W.D.N.Y. 2016) (“complaint does not adequately describe the John
Doe defendants such that they would be put on notice of plaintiff’s claim against them”);
Armenio v. Holder, 2016 U.S. Dist. LEXIS 101203, at *12 (S.D.N.Y. Aug. 1, 2016)
(motion to dismiss granted where amended complaint failed to provide “‘substantial
detail concerning appearance’” of Doe Defendants “that would give them notice that
they are the intended defendants”) (quoting Hogan, 738 F.3d at 519 (quoting Bumpus v.
N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104 (2d Dep’t 2009))). Here, as noted, Plaintiff
allege only that the Doe Defendants were DOCCS “individual officers, corrections
officers, guards, personnel and/or employees” working at Five Points who “participated
in the unlawful activity that is the subject of this Complaint.” Complaint ¶ 13. However,
even considering that Blancke was then unavailable to Plaintiff in formulating the
Complaint, there is no indication in the Complaint or Plaintiff’s motion papers that he
would have been able to provide further descriptive information for any of the 29 Doe
Defendants Plaintiff now seeks to add. Rather, it is apparent that this burden is one that
fell to Plaintiff at the outset of Plaintiff’s presumed investigation of Blancke’s death prior
to filing this action. That Plaintiff may have been hampered in Plaintiff’s ability to
provide sufficient descriptive information of the Does to satisfy the notice requirement of
Rule 15(c)(1)(C) does not relieve Plaintiff of this burden. This court’s research fails to
yield any authority permitting relation-back relief under Rule 15(c)(1)(C) as to Doe
7

Defendants based on such a circumstance and Plaintiff points to none. For example,
Plaintiff alleges four distinct forms of liability, including failure to treat Blancke, a
maliciously motivated double-celling of Blancke with a potentially dangerous cell-mate,
a failure to intervene in the ensuing assault on Blancke and a failure to promptly provide
emergency assistance to Blancke. It is simply implausible that all 29 Doe Defendants
were involved in each of the four forms of the alleged culpable conduct and thus
Plaintiff’s generalized assertions of their involvement do not provide the degree of notice
and opportunity to prepare to defend required by Rule 15(c)(1)(C). Cf. Ceara v.
DOCCS Officer Joseph Deacon, 2017 WL 363003, at *11 (S.D.N.Y. Jan. 23, 2017)
(required notice under § 1024 satisfied where plaintiff in the complaint provided
“detailed description, date, time, and specific location of incident and defendant’s
precise conduct to sufficiently notify [defendant] that he was the intended defendant,”
but failed to satisfy due diligence requirement of § 1024). 5
Plaintiff’s reliance on Rule 15(c)(1)(C) is also misplaced in that Rule 15(c)(1)(C)
requires that the inability or failure to name an identifiable party was the result of
Plaintiff’s mistake as to the correct identity of an unnamed defendant. See Hogan, 738
F.3d at 519 (lack of knowledge not a mistake under Rule 15(c)(1)(C) as to a John or
Jane Doe defendant’s identity). Here, Plaintiff concedes that when Plaintiff filed this
action on November 10, 2016, Plaintiff only knew the identity of three of the alleged
defendants Plaintiff gleaned from the transcript of Karris’s criminal trial which
commenced and concluded, the year prior thereto, in November 2015. However, it is

5

Unless indicated otherwise underlining and bracketed material added.
8

well-settled that a plaintiff may not utilize the relation-back provision of Rule 15(c)(1)(C)
in seeking to file an amended complaint to “add new defendants, where the newly
added defendants were not named originally, because the plaintiff did not know their
identities.” Wilson v. City of New York, 2017 U.S. Dist. LEXIS 52539, at *8 n. 5
(S.D.N.Y. Apr. 4, 2017) (citing Hogan, 738 F.3d at 517), report and recommendation
adopted, 2017 WL 2693599 (S.D.N.Y. June 19, 2017) (“Wilson”). 6 Simply, a “lack of
knowledge of a John Doe defendant’s name does not constitute a mistake of ‘identify’”
under Rule 15(c)(1)(C). Hogan, 738 F.3d at 518 (quoting Barrow, 66 F3d at 470); see
also Cotto v. City of New York, 2017 WL 3476045, at *4 (S.D.N.Y. Aug. 11, 2017) (“lack
of knowledge of a John Doe defendant’s name does not constitute a ‘mistake of
identity’” (quoting Hogan, 738 F.3d at 518 (citing Barrow, 66 F.3d at 470))). Thus,
Plaintiff is unable to demonstrate the proposed amendments to add 29 defendants as
new parties in substitution for the previously alleged Doe Defendants after the expiration
on December 14, 2016 of the three-year limitation period satisfy both requirements of
Rule 15(c)(1)(C), and Plaintiff’s motion should be denied on these grounds.
2.

N.Y.C.P.L.R. § 1024. 7
The court thus turns to Plaintiff’s alternative ground to support the amended

potentially available under Fed.R.Civ.P. 15(c)(1)(A) (“Rule 15(c)(1)(A)”), which allows a
relation-back amendment to add named defendants in place of the previously alleged
unidentified John or Jane Doe Defendants (hereinafter, “Doe Defendants”), after

6

To avoid unnecessary repetitive citations, further references to adoption by the district court of the
report and recommendation in Wilson are not provided.
7 Although N.Y.C.P.L.R. provisions do not officially include section or rule symbols, e.g., “§” or “R,” such
provisions are designated by § ___ herein.
9

expiration of the applicable limitations period where the relevant statute “allows relation
back,” id., in this case, because the applicable three-year statute of limitations is based
on New York law, N.Y.C.P.L.R. § 1024 which allows a previously unidentified party to
be added after expiration of the statute of limitation provided the degree of prior notice
to a Doe defendant and due diligence requirements mandated by § 1024 are satisfied.
Because New York state law requirements govern the application § 1024, the court is
required to apply them to the instant case. See Hogan, 738 F.3d at 519 (applying,
pursuant to Rule 15(c)(1)(A), New York caselaw construing § 1024); Wilson, 2017 U.S.
Dist. LEXIS 52539, at *8 (citing caselaw). Similar to the requirement of Rule
15(c)(1)(C), under § 1024 a plaintiff must show (1) that the unnamed Doe defendant for
which identification is proposed after expiration of the statute of limitations had been
described “in a way that fairly apprised the [later identified] actual party that she or he
was the intended defendant,” Wilson, 2017 U.S. Dist. LEXIS 52539, at *9 (citing Hogan,
738 F.3d at 518-19, and (2) that “the plaintiff . . . exercise[d] due diligence before the
expiration of the statute of limitations to identify a . . . [Doe] defendant by name.” Id.
Strict compliance with § 1024’s due diligence requirement is required under applicable
New York law and “‘[a]ny failure to exercise due diligence to ascertain the [Doe’s] name
subjects the complaint to dismissal [as time-barred] as to the party.’” Id. (italics in
original) (citing Hogan, 738 F.3d at 518-19; Strada v. City of New York, 2014 WL
3490306, at *5 (E.D.N.Y. July 11, 2014) at *9-10 (quoting Olivo v. City of New York,
2015 WL 4645271, at *4 (E.D.N.Y. Aug. 4, 2015) (denying amendment to add a
previously unnamed party where plaintiff failed to engage in due diligence); and citing
Bumpus v. City of New York Transit Auth., 883 N.Y.S.2d 99, 104 (2d Dep’t 2009) (under
10

§ 1024 plaintiffs are required to show that they “exercise[d] due diligence, prior to the
running of the statute of limitations, to identify the defendant by name and despite such
efforts, . . . [were] unable to do so”)). Further, “[c]ourts assess whether a plaintiff
engaged in due diligence by evaluating the various steps that the plaintiff could have
taken and did in fact take to identify the actual name of the . . . [Doe] defendants prior to
the expiration of the statute of limitations period.” Wilson, 2017 U.S. Dist. Ct. LEXIS
52539, at *10 (listing six discovery procedures available to a plaintiff to learn identities of
Doe defendants in § 1983 action alleging false arrest and malicious prosecution (citing
Bumpus, 883 N.Y.S.2d at 106-08)). “Due diligence in this context ‘requires that a
plaintiff show that he or she made timely efforts to identify the correct party before the
statute of limitations expired.’” Ceara v. Deacon, 68 F.Supp.3d 402, 409 (S.D.N.Y.
2014) (quoting Strada, 2014 WL 3490306, at *5 (quoting Justin v. Orshan, 788 N.Y.S.
2d 407, 408 (2d Dep’t 2005)) (internal quotation marks omitted)). Relevant to the
instant case, a plaintiff’s failure to more timely initiate a § 1983 action in federal court to
allow sufficient time to exercise various discovery devices available to litigants in such
actions counts against a plaintiff who seeks relief pursuant to § 1024. See Ceara v.
DOCCS Officer Joseph Deacon, 2017 WL 363003, at *11 (S.D.N.Y. Jan. 23, 2017)
(citing Galberth v. Washington, 2016 1255738, at *10 (S.D.N.Y. Mar. 29, 2016) (plaintiff
failed to exercise due diligence to identify defendants by “wait[ing] more than two and
one-half years after alleged misconduct to file his [§ 1983] [c]omplaint”)); Sherrard v.
City of N.Y., 2016 WL 1574129, at *4 (S.D.N.Y. Apr. 15, 2016) (“plaintiff waited so long
to bring his [federal court § 1983] action that he literally had no time to obtain and serve

11

a Valentin 8 order (which is routinely issued in this district) in order to identify the people
he wanted to sue”) (text in parentheses in original); JCG v. Evcole, 2014 WL 1630815,
at *14 (S.D.N.Y. Apr. 24, 2014) (plaintiff could not satisfy first requirement of § 1024,
because he waited until the statute of limitations had nearly run to file his § 1983
complaint and failed to engage in other methods such as discovery and FOIL requests
or by letters to N.Y. State Attorney General seeking identity information with regard to
Doe defendants to ascertain actual Doe defendants’ identities), report and
recommendation adopted, 2014 WL 2769120 (S.D.N.Y. June 18, 2014). Additionally,
where responses to plaintiff’s discovery demands are inadequate, a plaintiff’s failure to
follow-up by further demands or seek judicial intervention to obtain information needed
to identify Doe defendants negates a finding of the due diligence required by § 1024.
See Wilson, 2017 U.S. Dist. LEXIS 52539, at ** 11-12 (citing Temple v. Cmty. Hosp. of
Brooklyn, 933 N.Y.S.2d 321, 322-23 (2d Dep’t 2011).
In this case, several factors support finding that Plaintiff’s allegations in the
Complaint failed to provide all the Does with sufficient notice required by the notice
criterion of § 1024. Specifically, as discussed with respect to the prior notice
requirement of Rule 15(c)(1)(C), supra, at 7-8, it is implausible to infer that all of the 29
Does personally participated in decisions to deprive Blancke of required treatment for
his alleged disorder and were also involved in the scheme to place Karris in Blancke’s

8 Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) (requiring municipal defendant to assist pro se
prisoner plaintiff to identify fully defendant to avoid dismissal based on failure to effect timely service)
(“Valentin order”). Such orders (routinely issued to the N.Y. Attorney General in actions against DOCCS
employees in this court) may be requested by counsel for § 1983 plaintiffs alleging wrongful death claims
against allegedly responsible unidentified police officers. See Vasconcellos v. City of New York, 2014 WL
4961441, at * 9 (S.D.N.Y. Oct. 2. 2014).
12

cell for the purpose of instigating an assault on Blancke or failed to timely intervene to
protect Blancke and provide more immediate medical assistance. No other descriptive
information is alleged by Plaintiff that could be considered as applying to particular
corrections officers at Five Points, such as rank, work assignments or schedules, were
included in Plaintiff’s blanket allegation that all of the Doe Defendants participated in
each of the alleged violations of Blancke’s Eighth Amendment rights. Accordingly, the
court finds the Complaint does not satisfy the prior notice requirement of § 1024. Even
assuming such notice was provided, Plaintiff has failed to establish the degree of due
diligence required under § 1024’s first element to support Plaintiff’s proposed poststatute of limitations amendments to substitute 29 proposed defendants in place of the
Doe Defendants identified to Plaintiff by the State in the Court of Claims action in
February 2017, after the expiration of the statute of limitations.
The first legal step in this matter taken by Plaintiff, who was appointed Blancke’s
administratrix on December 15, 2014, 9 was the filing on February 2, 2015 of a Notice of
Claim alleging a failure to treat Blancke, Blancke’s beating by Karris, and his wrongful
death while in the custody of New York State employees, DOCCS corrections officers
employed at Five Points. Plaintiff’s Exh. 5. Plaintiff commenced her search for the
identities of responsible DOCCS employees on January 20, 2015, by filing requests
pursuant to N.Y. Public Officers Law § 85 et. seq. (McKinney’s 1977) (“ the FOIL
Requests”) to the New York Division of State Police, which was apparently the lead

9

A prior notice of claim prerequisite to a Court of Claims action was filed in February 2014, on behalf of
Blancke’s estate by Blancke’s mother, but was later dismissed because his mother could not qualify as a
proposed administratrix. See Plaintiff’s Reply, Dkt. 24 at 6 n. 2.
13

agency investigating Blancke’s homicide, and DOCCS, referencing Blancke’s homicide
on December 14, 2013, requesting all “blotters, reports, investigations, photographs,
autopsy reports, medical examinations, findings and conclusions with regard to the
above-referenced incident.” Plaintiff’s Exh. 3. DOCCS’s response, dated February 26,
2015, denied Plaintiff’s request asserting an on-going investigation; the State Police’s
response, dated September 10, 2015, also denied Plaintiff’s request on the basis of
criminal charges that were then pending against Karris, and that the responsive records
were exempt from disclosure as being prepared for law enforcement purposes citing
N.Y. Pub. Officer Law § 87(2)(e)(i). Plaintiff’s Exh. 4. No administrative appeal or
judicial review of the denials was taken by Plaintiff. As noted, Plaintiff’s Court of Claims
action alleging Blancke’s wrongful death, and the State’s negligence and negligent
hiring and supervision was filed on April 8, 2015. Plaintiff’s Exh. 6.
As also noted, Plaintiff initiated her Court of Claims action by filing a Notice of
Claim on February 2, 2015 alleging negligence by DOCCS’s employees with respect to
Blancke’s safety resulting in Blancke’s murder. Plaintiff’s Exh. 5. Plaintiff’s Court of
Claims action was commenced as required within two years of the incident alleging
wrongful death, negligence, violation of the State’s duty to provide safe housing for
incarcerated persons, and negligent hiring, supervision and training of the responsible
DOCCS personnel. Plaintiff’s Exh. 6. On June 19, 2015, Plaintiff served a combined
discovery request, including interrogatories and document requests, on the defendant
State of New York in Plaintiff’s Court of Claims action. Plaintiff’s Exh. 10. As relevant,
Plaintiff’s interrogatories requested, inter alia, the identities of all persons “responsible”
for assigning Karris to Blancke’s cell, and all persons involved in Blancke’s treatment
14

while incarcerated by DOCCS, Plaintiff’s Exh. 10 ¶¶ 2, 6, as well as Blancke’s medical
and mental health file. Id. ¶ 11; Plaintiff also requested records relating to the decision
to place Karris in Blancke’s cell, id. ¶ 15, a copy of the DOCCS Inspector General file
regarding Blancke’s death, id., ¶ 21, and copies of relevant surveillance film records. Id.
¶ 28. There was no timely response by the State to Plaintiff’s discovery requests. See
Plaintiff’s Exh. 8 (Dec. 21, 2015 Letter of Stephanie Correa, Esq. to Bonnie Gail Levy,
Assistant N.Y. Attorney General) (“Ass’t Att’y Gen. Levy”) (confirming the State’s failure
to respond to Plaintiff’s requests because of the previous pendency of Karris’s trial);
Plaintiff’s Memorandum at 3 (referencing the State’s “delayed response” dated February
13, 2017 to Plaintiff’s discovery requests). Karris’s criminal trial concluded November
20, 2015 with the jury’s rejection of Karris’s defense that he assaulted Blancke in selfdefense which resulted in Karris’s conviction of second degree murder. See Plaintiff’s
Exh. 7 at 747; 1104. On December 21, 2015, Plaintiff wrote to the State’s defense
counsel, Ass’t Att’y Gen. Levy, reminding her of Plaintiff’s outstanding, since June 2015,
discovery demands and requesting the State’s responses which had been refused until
the Karris trial was concluded, see Plaintiff’s Exh. 8, be served “by January 4, 2016.” Id.
The State again failed to respond and Plaintiff filed, on June 1, 2017, a year and onehalf later, nearly two years after serving Plaintiff’s discovery requests, and nearly six
months after expiration of the statute of limitations in this action, a motion to compel
such discovery. Plaintiff’s Memorandum, Dkt. 21-1 at 6; Defendants’ Memorandum,
Dkt. 23, at 12. 10 No explanation appears in the record for Plaintiff’s delay in filing

10 A copy of Plaintiff’s motion to compel is not included in the record.
15

Plaintiff’s motion to compel. In the State’s opposition, dated August 2, 2017, to
Plaintiff’s motion to compel and in support of the State’s cross-motion to dismiss
Plaintiff’s Court of Claims action for late filing of the Notice of Claim, Ass’t Att’y Gen.
Levy asserted the State had produced numerous records to Plaintiff, albeit partially
redacted for reasons of privacy or as required by state law. See Plaintiff’s Exh. 11 ¶ 3.
The State also asserted Plaintiff’s request for a copy of the DOCCS Inspector General’s
report on Blancke’s homicide was barred as privileged under New York law and that
Plaintiff’s requests with respect to Brian Karris could not be provided, based on a public
interest privilege, absent notice to Karris or his committee given that Karris was at the
time incarcerated at a DOCCS psychiatric facility, id. ¶¶ 8, 38, but indicated the State
would comply if the Court of Claims judge so ordered. Id. ¶ 39. The State also
acknowledged that certain prison records relating to Karris, potentially responsive to
Plaintiff’s request, had been submitted to the Court of Claims judge for in camera
review. Id. ¶ 16, 18. Similarly, the State advised Plaintiff should subpoena the State
Commission on Corrections Report concerning Blancke’s death which was also
requested by Plaintiff explaining that the Attorney General did not represent the
Commission and was therefore unable to require the Commission to comply with
Plaintiff’s request. Plaintiff’s Exh. 11, Dkt. 21-14, ¶ 45. The record does not indicate
Plaintiff pursued any of the State’s suggestions. The State further suggested Plaintiff
depose Lt. Marketos, one of the proposed defendants, regarding the DOCCS decision
to approve Karris and Blancke to be double-celled. Id. at 17. The State also asserted
many of the records sought by Plaintiff were, until the conclusion of Karris’s trial in
November 2016, unavailable to the State to be produced to Plaintiff. Dkt. 11 ¶ 12.
16

According to Plaintiff, Plaintiff’s motion to compel in the Court of Claims action remains
pending before the assigned judge of that court despite Plaintiff’s two telephone calls to
the judge’s law clerk. Plaintiff’s Memorandum, Dkt. 21-1, at 3. The instant action was
commenced on November 10, 2016. As noted, on February 13, 2017, the State
produced, in response to Plaintiff’s June 2015 demand, a list of 52 names and
numerous documents regarding the decision to double-cell Karris and Blancke.
Plaintiff’s Exh. 9 ¶¶ 1, 2; Defendants’ Memorandum, Dkt. 23, at 16. 11 Defendants
answered in this action on June 14, 2017. On September 8, 2017, Defendants provided
Plaintiff with disclosures in this action pursuant to Fed.R.Civ.P. 26(a)(1) which included
the names of prospective witnesses all of whom were also listed by the State in its
February 13, 2017 response to Plaintiff’s discovery demands in Plaintiff’s Court of
Claims action. Plaintiff served Plaintiff’s interrogatories and document requests in this
action on September 22, 2017. Defendants’ Memorandum, Dkt. 23, at 25.
Based on this history, the court finds Plaintiff has failed to satisfy § 1024’s due
diligence requirement for several reasons. First, and most obviously, by waiting until
November 2016 to file, approximately five weeks before expiration on December 13,
2016, of the statute of limitations, the instant action despite learning the identity of the
three named Defendants from the testimony available in the transcript of Karris’s
November 2015 trial, 12 Plaintiff severely limited Plaintiff’s ability to exercise the full

11 The

State also produced a “CD/DVD . . . [which included] various intake and screening documents as
well as double cell approval [sic] with respect to Thomas Blancke.” Plaintiff’s Exh. 9 ¶ 2.
12 Plaintiff does not indicate when Plaintiff obtained a copy of the transcript from which Plaintiff also
learned the identities of several other Five Points corrections officers, Edick, Maloy, and Lt. Reese, who
are included in Plaintiff’s proposed amended complaint and who testified at the trial, including several
corrections officers who responded to Blancke’s injuries on December 14, 2013. Defendants’
Memorandum at 14 (referencing Karris’s trial transcript).
17

range of discovery devices available in a federal civil action capable of yielding the
identities of the 29 Doe Defendants whom Plaintiff seeks to substitute. Had Plaintiff
filed this action earlier, Plaintiff could have availed herself of the liberal discovery
available in federal civil actions including prompt judicial assistance if confronted with
opposition defense tactics. See Ceara, 2017 WL 363003, at *11 (no due diligence as
required by § 1024 where plaintiff waited two and one-half years to file § 1983 action);
JCG, 2014 WL 1630815, at 14 (S.D.N.Y. Apr. 24, 2014) (failure to initiate § 1983 action
until statute of limitations had nearly run preventing effective use of [federal court]
discovery for identity of Doe Defendants precluded relief under § 1024). In an earlier
filed action, Plaintiff could have availed herself of the benefit of a Valentin order and, if
necessary, further discovery of the identity of the Doe Defendants available by serving
interrogatories pursuant to Fed.R.Civ.P. 33(b)(1) particularly useful in a case like this
where a primary fact witness is unavailable to assist in a pre-suit investigation of the
subject matter of the prospective action. See Wilson, 2017 U.S. Dist. LEXIS 52539, at
*10 (pointing to plaintiff’s failure to avail himself of discovery available through
interrogatories to obtain identity of “prospective defendants” as indicating plaintiff failed
to engage in due diligence required by § 1024). For example, although the Inspector
General’s report Plaintiff requested in the Court of Claims action may, as the Assistant
Attorney General asserted, have been privileged under state law, such would not
necessarily prevent discovery of the report in this court. See, e.g., Vega v. Hatfield,
2011 WL 13128745, at *1 (W.D.N.Y. Sep’t 19, 2011) (DOCCS Inspector General report
related to alleged assault on prisoner plaintiff held discoverable under law enforcement

18

privilege in plaintiff’s § 1983 after in camera review) (citing In re City of New York, 607
F.3d 923, 944 (2d Cir. 2010))).
Moreover, as relates to the instant case, if Plaintiff had earlier determined to
commence this § 1983 action against then unidentified Five Points corrections officers
and supervisory personnel, responsible for Blancke’s medical care and safety, Plaintiff
could have sought the pre-action disclosure of such necessary identification information
pursuant to N.Y. C.P.L.R. § 3102(c) (“§ 3102(c)”), 13 and upon obtaining such
information thereby avoided asserting claims against the Doe Defendants as does the
instant action. See Wilson, 2017 U.S. Dist. Lexis 52539, at * 10 (plaintiff’s failure to
utilize § 3102(c) as a pre-suit disclosure device to obtain the identities of “John Smith”
police officer defendants for use in plaintiff’s § 1983 action is indicative of plaintiff’s
failure to exercise due diligence required for relation-back relief pursuant to § 1024)
(citing Bumpus, 883 N.Y.S.2d at 106 (stating availability of § 3102(c) to access, inter
alia, “identities of prospective defendants”)); see also Olivo, 2015 WL 4645271, at *6
(plaintiff’s failure to timely utilize § 3102(c) to timely obtain two John Doe defendant
police officers’ names for use in plaintiff’s § 1983 action alleging Plaintiff’s false arrest
indicative of plaintiff’s failure to satisfy § 1024 due diligence prerequisite for relationback relief).

13 A

special proceeding seeking pre-suit information pursuant to § 3102(c), see Robinson v. Gov’t of
Malayasia, 664 N.Y.S.2d 907, (Sup. Ct. Kings Cty. 1997) (absent jurisdiction over the parties and filing of
a complaint, § 3102(c) disclosure should be brought by a special proceeding), requires a petitioner show
the existence of a meritorious claim and relevance of the requested material from respondent in
possession of such material. Bishop v. Stevenson Commons Assocs., L.P., 905 N.Y.S.2d 29, 30 (1st
Dep’t 2010), leave to appeal denied, 924 N.E.2d 319 (N.Y. 2011) (Table). Such relief is discretionary with
the court. Id.
19

Although Plaintiff in the pending Court of Claims action requested on June 19,
2015, the identity of persons who were responsible for the double-celling of Blancke and
Karris, Plaintiff’s Exh. 10 ¶ 2, and witnesses to Karris’s attack on Blancke, id. ¶ 7, as
noted, supra, at 12, upon receiving no timely response, Plaintiff failed to move to
compel such important information until June 2017, well after the statute of limitations
for this case expired on December 14, 2016. Significantly, Plaintiff provides no
explanation why Plaintiff failed to more timely seek judicial assistance in the state Court
of Claims action to compel the identification of proposed defendants for use in Plaintiff’s
§ 1983 action pursuant to Plaintiff’s interrogatories, as Plaintiff could have done. Under
§ 1024, courts, in assessing whether a plaintiff has exercised due diligence, are
required to consider whether a plaintiff took the various steps the plaintiff “could have
taken and did in fact take to identify the actual name of . . . [Doe] defendants prior to the
expiration of the statute of limitations period.” Wilson, 2017 U.S. Dist. LEXIS 52539, at
*10.
Nor, contrary to Plaintiff’s assertions, Plaintiff’s Memorandum, Dkt. 21-1, at 9, do
Plaintiff’s FOIL requests satisfy the due diligence requirement of § 1024. As explained,
supra, at 13-14, Plaintiff filed two such requests in early 2015 – one to the New York
State Police, the other to DOCCS. The requests were identical in seeking, inter alia,
investigation reports, and findings “with regard to the above-referenced incident [the
Blancke homicide].” Relevantly, such requests did not, however, particularize any
request by Plaintiff for the identity of persons who were responsible for providing
treatment for Blancke’s alleged bi-polar and ADHD disorders; neither, as did Plaintiff’s
later interrogatory requests, did Plaintiff’s FOIL requests specifically seek the identity of
20

the DOCCS personnel who were involved in the decision to assign Karris to Blancke’s
cell or those responsible for providing medical care to Blancke and Blancke’s safety.
Under the New York Freedom of Information Law, the exclusion from access for
identification information is limited to that of a confidential source, not the identity of
officials involved in alleged unconstitutional conduct such as an illegal arrest or Eighth
Amendment deprivations. See N.Y. Pub. Officers Law § 87[2][e][iii]; Bumpus, 883
N.Y.S.2d at 107 (citing N.Y. Pub. Officers Law § 89 as basis for disclosure of name of
prison guards accused of improper behavior) (citing Matter of Faulkner v. Del Giacco,
529 N.Y.S.2d 255, 258 (Sup. Ct. Albany Cnty. 1988)). Nor is it likely such identification
information could impair the pending criminal case against Karris as if following
disclosure Plaintiff attempted to depose the officers who may have been scheduled to
testify at the Karris criminal trial, the State could request a stay of discovery pending
completion of the officers’ testimony in Karris’s trial, even assuming such a stay had
been requested by the District Attorney. A properly formed FOIL request could have
also yielded work schedules and assignments from which the identity of DOCCS
personnel with a connection to Blancke’s treatment double-celling, and other
responsibilities relevant to Plaintiff’s claims could be determined. See Bumpus, 883
N.Y.S.2d at 107. As the New York Court of Appeals has recently stated, “FOIL
exemptions are to be narrowly read” and “FOIL was not designed to assist wrongdoers
in evading detection.” Abdur-Rashid v. N.Y. City Police Dep’t, ___ N.E.2d ___, 2018
WL 1524722, at **2, 3 (N.Y. Mar. 29, 2018). Although the FOIL’s law enforcement
exemption, N.Y. Pub. Officers Law § 87[2][e][i], protects against disclosure of witness
identification and statements to avoid impairing the prosecutor’s strategies in pending
21

criminal cases, see Matter of Lesher v. Hynes, 968 N.E.2d 451, 457-58 (N.Y. 2012),
only six of the 29 proposed defendants in this matter testified at Karris’s trial thus
supporting that if Plaintiff pursued an administrative appeal or judicial review of
Plaintiff’s FOIL denials, or immediately following Karris’s trial renewed Plaintiff’s
requests, Plaintiff could have obtained substantial and earlier compliance with a wellframed and targeted FOIL request. As such, Plaintiff’s FOIL requests were not drafted
in a manner calculated to produce the information necessary to timely assert § 1983
claims available to Plaintiff under New York law against such persons and it is
undisputed that Plaintiff did not exercise Plaintiff’s right to an administrative appeal of
the respective denials, see N.Y. Pub. Officers Law § 89[4](a), seek judicial relief, see
N.Y.Pub. Officers Law § 89[4](b), or promptly renewed such requests. Such inactions
by Plaintiff represent examples of steps Plaintiff could have taken to satisfy the due
diligence requirement of § 1024 but failed to timely do so which, under New York law,
weigh against finding Plaintiff complied with § 1024’s due diligence requirement.
Although Plaintiff relies on Plaintiff’s preliminary FOIL requests and Plaintiff’s
2016 discovery requests served in the Court of Claims action as evidence of Plaintiff’s
due diligence to obtain the earlier identity of the Doe Defendants needed for this action,
Plaintiff’s argument overlooks that to rely on § 1024, court’s require that a plaintiff not
only exercise some discovery devices then available to a plaintiff, but also consider the
devices plaintiff counsel could have exercised to obtain the Doe defendant’s names but
did not. See Ceara, 2017 WL 363003, at *11 (plaintiff failed to satisfy due diligence
requirements of § 1024 while upon receiving less than adequate discovery responses
plaintiff “failed to promptly seek further discovery . . .” and judicial assistance); Wilson,
22

2017 U.S.Dist. LEXIS 52539, at * 9 (citing Olivo, 2015 WL 4645271, at *4 (“New York
courts stress [ ] any failure to exercise due diligence” (italics in original) (citing Bumpus,
883 N.Y.S.2d at 103)). “Courts assess whether a plaintiff engaged in due diligence by
evaluating the various steps that the plaintiff could have taken and did in fact take to
identify the actual name of the [Doe defendants] . . ..” Wilson, 2017 U.S. Dist. LEXIS
52539, at *10. Moreover, even if the pendency of Karris’s trial could have temporarily
hindered obtaining through Plaintiff’s FOIL requests the identities of those DOCCS
employees having responsibility for Blancke’s medical needs, Karris’s placement in
Blancke’s cell, and the alleged delay in responding to Karris’s assault on Blancke, there
is no indication in the record that Plaintiff promptly renewed Plaintiff’s FOIL requests to
seek such identity information upon the conclusion of Karris’s trial in November 2015.
Plaintiff moreover fails to indicate why such a renewal and presumably successful
request, under applicable New York law, see, e.g., Bumpus, 883 N.Y.S.2d at 107, was
not made at a time when a response could have produced such information by early
2016, well-before the expiration of the statute of limitations more than one year later in
this case.
Nor is there any merit to Plaintiff’s belated request, first raised in Plaintiff’s Reply,
Dkt. 24 at 10, in response to Defendants’ contention that even if Plaintiff could satisfy
the other requirements of § 1024, i.e., notice and due diligence, Plaintiff nevertheless
failed to serve the recently identified, on February 13, 2017, 29 proposed defendants
within 120 days after Plaintiff commenced this action on November 10, 2016, or March

23

10, 2017, as required by N.Y.C.P.L.R. § 306-b. 14 Defendants’ Memorandum, Dkt. 23-4,
at 15-16 (citing Barrett v. City of Newburgh, N.Y., 2017 WL 1102672, at *5 n. 9
(S.D.N.Y. Mar. 23, 2017) (N.Y.C.P.L.R. § 306-b requires service upon John Doe
defendant of amended complaint with defendant’s correct name within 120 days of filing
of complaint) (citing caselaw); Drake v. Lab. Corp. of Am. Holdings, 2009 WL 2867901,
at ** 6-7 (E.D.N.Y. Sep’t 3, 2009) (to avoid running of statute of limitations plaintiff
seeking to name John Doe defendants required by N.Y.C.P.L.R. § 306-b to identify and
serve such defendants within 120 days), aff’d, 417 Fed.Appx. 84 (2d Cir. 2011).
N.Y.C.P.L.R. § 306-b is considered under New York statute of limitations as an integral
part of the “following provisions,” including § 1024, provided under such law. See Gullo
v. City of New York, 2012 U.S.Dist. LEXIS 189573, at *17 (S.D.N.Y. May 21, 2012)
(“Courts have read this provision [§ 1024] in conjunction with Section 306-b of the
C.P.L.R.”) (citing caselaw), report and recommendation adopted, 2012 U.S. Dist. LEXIS
146863 (S.D.N.Y. Oct. 11, 2012). Specifically, Plaintiff now requests the court enlarge
the 120-day period for good cause or in the interest of justice as permitted by C.P.L.R. §
306-b, Plaintiff’s Reply, Dkt. 24, at 10 (citing Bumpus, 883 N.Y.S.2d at 108-09
(reviewing factors relevant to a finding of good cause and alternative “broader interest of
justice factors” to support plaintiff’s motion for such relief noting that while such motions

14

“Service of the summons and complaint, summons with notice, third-party summons and complaint, or
petition with a notice of petition or order to show cause shall be made within one hundred twenty days
after the commencement of the action or proceeding, provided that in an action or proceeding, except a
proceeding commenced under the election law, where the applicable statute of limitations is four months
or less, service shall be made not later than fifteen days after the date on which the applicable statute of
limitations expires. If service is not made upon a defendant within the time provided in this section, the
court, upon motion, shall dismiss the action without prejudice as to that defendant, or upon good cause
shown or in the interest of justice, extend the time for service.” N.Y.C.P.L.R. § 306-b (McKinney’s 2012).
24

need not be brought prior to expiration of initial 120-day period, a party’s promptness in
making the request is a “specific factor that is to be considered by courts in determining
‘interest of justice’ extensions” (citing Leader v. Maroney, Panzini & Spencer, 761
N.E.2d 1018, 1025 (N.Y. 2001))), to allow Plaintiff to serve the 29 proposed defendants
at this time, assuming the court were to grant Plaintiff’s motion. For § 306-b purposes,
good cause requires a showing of plaintiff’s reasonable diligence in attempting service,
or that failure to effect service resulted from circumstances beyond plaintiff’s control,
Bumpus, 883 N.Y.S.2d at 105; extensions based on the interest of justice criterion
include, in addition to a party’s diligence in ascertaining the Doe Defendants’ correct
identity, “expiration of the statute of limitations, the meritorious nature of the action, the
length of delay in service, the promptness of a request by the plaintiff for an extension,
and prejudice to the defendant.” Id. at 106. Here, Plaintiff argues Plaintiff exercised
diligence by filing two FOIL requests, requesting discovery in the Court of Claims action,
reviewing the Karris trial transcript, and a follow-up communication with Ass’t Atty Gen.
Levy in Plaintiff’s attempt to identify the Doe Defendants and to effect timely service, but
was impeded in that effort by the agency denials of Plaintiff’s earlier FOIL requests and
the State’s delayed, February 13, 2017, response to Plaintiff’s prior discovery demands,
and that the State’s response did not particularize the nature of the identified persons’
relationship to or knowledge of Plaintiff’s claims to enable Plaintiff’s use of the
information in filing an amended complaint and timely serving the Defendants. Plaintiff’s
Memorandum, Dkt. 24 at 14. Plaintiff also points to the fact that the statute of limitations
has expired. Id.

25

Plaintiff’s request fails for several reasons. First, as discussed, supra, at 9-25,
contrary to Plaintiff’s assertion, Plaintiff did not exercise due diligence in Plaintiff’s
attempt to obtain early identification of the Doe Defendants for purposes of initiating the
instant action and, because Plaintiff therefore cannot rely on § 1024 to substitute at this
time the 29 proposed defendants thus rendering Plaintiff’s proposed amended
complaint time-barred, whether Plaintiff can support a belated request to extend the
120-day period required by § 306-b based on a showing of good cause is unnecessary.
Further, even assuming Plaintiff’s proposed amended complaint seeking to substitute
29 new parties for the Doe Defendants is not time-barred based on § 1024, can Plaintiff
demonstrate an extension is warranted in the interest of justice. Plaintiff received the
names of the persons Plaintiff now seeks to substitute on February 13, 2017, yet made
no request for an extension of time to serve these proposed defendants until the issue
was raised in Plaintiff’s Reply filed November 21, 2017 in response to Defendants’
argument in opposition to Plaintiff’s motion that Plaintiff failed to effect timely service, as
required by § 1024. Plaintiff, represented from the outset by counsel, provides no
justification for such obvious dilatoriness. As to the potential merits of Plaintiff’s claims,
as discussed, infra, at 30-34, the court finds Plaintiff has failed to plausibly allege a
claim. Further, a careful review of the Complaint reveals only repetitive and conclusory
assertions of Defendants’ liability particularly with regard to Plaintiff’s allegations that as
prison guards Defendants arranged to place Karris in Blancke’s cell for the malicious
purpose Plaintiff alleges – to “punish” Blancke for his supposed misbehavior caused by
Blancke’s ADHA and bi-polar disorders. As such, this claim, as well as the others
asserted by Plaintiff, appears to be, as pleaded, based on unsupported speculation and
26

thus lacking in merit. The same deficiencies characterize Plaintiff’s attempt to substitute
29 new parties for the Doe Defendants in the proposed amended complaint, making
them also the subject of Plaintiff’s allegations, without providing any additional facts.
While the statute of limitations has expired, it is also the case that the parties have
initiated extensive discovery in this case and, as discussed, infra, at 34-37, allowing
Plaintiff to amend and serve 29 new defendants at this time will significantly burden
Defendants and prolong the efficient disposition of the case resulting in manifest
prejudice to Defendants. See Walker v. Hormann Flexon, LLC, 59 N.Y.S.2d 614, 615
(3d Dep’t 2017) (motion to dismiss amended complaint adding previously unidentified
defendant denied where plaintiff failed to make diligent efforts to ascertain unknown
party’s identity prior to expiration of three-year statute of limitations or “seek leave to
extend the time for service”); Albany Plattsburgh United Corp. v. Bell, 763 N.Y.S.2d 119,
124 (3d Dep’t 2003) (affirming trial court’s denial of motion to amend complaint to assert
29 new claims against two additional defendants which trial court determined would
require significant additional discovery and be too burdensome where case had been
pending nine years and trial date already set), leave to appeal denied, 808 N.E.2d 1273
(N.Y. 2004). 15 Although Plaintiff asserts that Plaintiff complied with the October 20,
2017 deadline established by the Scheduling Order, Dkt. 16, in timely filing the instant

15 Although

not dispositive of the issues presented on Plaintiff’s motion, Defendants also point out,
correctly, that Plaintiff could have served an amended complaint as of right pursuant to Fed.R.Civ.P.
15(a)(1)(B) until July 5, 2017, or 21 days after Defendants filed their Answer but failed without explanation
to do so further demonstrating Plaintiff’s lack of attention to this important issue. Defendants’
Memorandum, Dkt. 23, at 16. However, such amended complaint would nevertheless presumably have
been subject to Defendants’ inevitable motion to dismiss as time-barred and without the benefit of
relation-back relief under § 1024 as discussed herein.
27

motion, Plaintiff’s Reply, Dkt. 24 at 10, Plaintiff’s assertion does not support extending §
306-b’s service period. If Plaintiff required additional discovery to enable Plaintiff to
identify the Doe Defendants correctly and plausibly allege Plaintiff’s claims against them
in an amended complaint, Plaintiff should have requested an amendment to the
Scheduling Order for good cause required by Fed.R.Civ.P. 16(b) to enlarge the time to
seek to file an amended complaint as well as an enlargement of the 120-day period
required by § 306-b within which to serve the parties to be substituted. Plaintiff,
however, took no such actions.
Further, Plaintiff does not deny that in the Court of Claims action defendant State
of New York also produced with its January 2017 response various documents including
a copy of the Unusual Incident Report from which the identity of the potential Doe
Defendants in this action may have been obtainable. As Defendants point out, see
Defendant’s Memorandum, Dkt. 23, at 17, the identities of all of the Doe Defendants
Plaintiff now seeks to include in the proposed amended complaint were identified to
Plaintiff in the State’s January 2017 Response to Plaintiff’s discovery requests, the
Unusual Incident Report, or were mentioned in various memoranda produced by the
State; moreover, six of these persons testified in Karris’s criminal trial the transcript of
which was extensively reviewed by Plaintiff in order to file this action. Id. Finally, while
it is true that Plaintiff requested from Ass’t Att’y Gen. Levy in December 2015, shortly
after completion of Karris’s trial in November 2015, a prompt – January 2016 –
response, see Plaintiff’s Exh. 8, when such response was not received Plaintiff made no
effort to seek judicial assistance from the assigned Court of Claims judge, until Plaintiff
filed Plaintiff’s motion to compel in June 2017 in that court order to obtain more
28

complete responsive information. Although as Plaintiff asserts, Plaintiff’s Memorandum,
Dkt. 21-1 at 5, Karris’s intervening criminal trial created a temporary obstacle to
obtaining full and earlier discovery in Plaintiff’s Court of Claims action, when that
discovery did not materialize as Plaintiff expected, Plaintiff should have realized the
statute of limitations for Plaintiff’s putative § 1983 action in this court was running and
would expire within the following year, i.e., by December 14, 2016, and accordingly
have been prompted to initiate a pre-action disclosure request for identification of
allegedly culpable defendants pursuant to § 3102(c), renew Plaintiff’s FOIL requests,
request a Valentin order, and immediately commence her § 1983 action to allow for
discovery procedures to be implemented by Plaintiff in this court especially directed to
the early identification of the Doe Defendants in this action, should for some reason the
§ 3102(c) special proceeding, FOIL requests and Valentin order prove unsuccessful.
No reason for Plaintiff’s failure to do so appears in the record. In sum, the existence of
multiple pre-suit and post-filing discovery procedures and devices that could, if more
timely and diligently exercised by Plaintiff, have yielded the identities of the Doe
Defendants in this action prior to expiration of the three-year limitations period strongly
supports Defendants’ contention that Plaintiff has failed to meet the due diligence
requirement of § 1024 and thus requires Plaintiff’s motion be denied as futile.
In reaching this conclusion, the court does not ignore the practical difficulties
confronting a plaintiff seeking to vindicate the Eighth Amendment rights of a murdered
prisoner while in DOCCS custody as Plaintiff alleges. However, there is no apparent
reason why Plaintiff, represented from the outset by presumably capable counsel, could

29

not have commenced this action at a much earlier point in time, avoiding the difficulties
Plaintiff has encountered in proceeding against unidentified parties in this case.
3.

Failure to State a Claim.
Defendants alternatively contend that even if Plaintiff’s proposed amended

complaint to name 29 as previously alleged Doe Defendants is not time-barred and thus
futile, the proposed amended complaint is nevertheless futile as it fails to state a claim
against the 29 proposed defendants because it fails to assert against any of the 29
individual proposed defendants specific grounds plausibly indicating that such
defendants personally engaged in conduct amounting to a violation of Blancke’s Eighth
Amendment rights as required for such cause of action under § 1983. See Defendants’
Memorandum, Dkt. 23, at 18-20 (citing cases). Here, the proposed amended complaint,
like the Plaintiff’s allegations against the three Defendants in the Complaint, merely
names the 29 proposed defendants and alleges that each such defendant “participated
directly in the unlawful activity that is the subject of this complaint.” See, e.g., Plaintiff’s
Exh 2 ¶ 13 (regarding proposed defendant Anthony Edick). As noted, the Complaint
asserts, albeit repeated in Plaintiff’s three causes of action, four distinct violations of
Blancke’s Eighth Amendment rights on the part of all proposed defendants: (1) creating
a serious risk of harm to Blancke by assigning Karris to Blancke’s cell with a malicious
motive, Complaints ¶¶ 37, 45, (2) failing to provide Blancke with proper medical
treatment and care for his alleged bi-polar and ADHD disorders, Complaint ¶¶ 38, 46,
(3) failure to timely respond to the assault by Karris upon Blancke by promptly providing
medical assistance, Complaint ¶¶ 37, 41, 48, and (4) that Defendants failed to intervene
in order to prevent the various resulting harms to Blancke, i.e., Karris’s assault, lack of
30

proper medical care, failure to provide immediate medical assistance after the assault,
and Blancke’s death.
It is well-established that to avoid a denial of a motion for leave to file an
amended complaint based on futility, the proposed amended complaint must be able to
withstand a motion to dismiss for failure to state a claim. See Lucente v. Int’l Bus.
Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002); Briggs, 2016 WL 1296060, at *4
(citing caselaw), report and recommendation adopted, 2015 F.Supp.3d 213 (W.D.N.Y.
2016). “‘The proposed amended claim must contain ‘more than labels and conclusions,
and a formulaic recitation of the elements of a cause of action,’” Id. (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Rather, it ‘must allege facts that are not
merely consistent with the conclusion that the defendant violated the law, but which
actively and plausibly suggest that conclusion.’” Id. (quoting Port Dock & Stone Corp. v.
Oldcastle Ne., Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly, 550 U.S. at 557)).
It is well-established that as a prerequisite to relief under § 1983, a plaintiff must
establish a defendant was personally involved in the alleged deprivation. Warren v.
Pataki, 823 F.3d 125, 136 (2d Cir. 20106) (“To establish a section 1983 claim, ‘a plaintiff
must establish a given defendant’s personal involvement in the claimed violation in
order to hold that defendant liable in his individual capacity.’” (quoting Patterson v.
County of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 2004))). Such personal involvement
requires, as relevant to the scenario described in the Complaint and proposed amended
complaint, that the “(1) the defendant participated directly in the alleged constitutional
violation . . . or “‘(5) the defendant exhibited deliberate indifference to the rights of [the
plaintiff] by failing to act on information indicating that unconstitutional acts were
31

occurring.’” Id. (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)). An Eighth
Amendment claim of cruel and unusual punishment based on a failure to protect, treat
or provide medical care requires plaintiff to establish “(1) he was incarcerated under
conditions [of confinement] posing a substantial risk of serious harm, and (2) prison
officials acted with deliberate indifference to his health or safety.” Williams v. Artus,
2016 WL 3919726, at *3 (May 31, 2016 W.D.N.Y.) (citing Farmer v. Brennan, 511 U.S.
825, 834 (1994)), report and recommendation adopted, 2016 WL 3882912 (W.D.N.Y.
2016). “A deliberate indifference claim has objective and subjective elements.” Id.
(citing Smith v. Carpenter, 316 F.3d 178, 183-84 (2d Cir. 2003). “[T]o establish the
objective element of an Eighth Amendment claim, a prisoner must prove that the
conditions of his confinement violate contemporary standards of decency.” Phelps v.
Kapnolas, 308 F.3d 180, 185 (2d Cir. 2002) (quoting Helling v. McKinney, 509 U.S. 25,
35 (1993)). “Concerning the ‘subjective’ requirement, the Supreme Court has explained
that ‘a prison official cannot be found liable under the Eighth Amendment for denying an
inmate humane conditions of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety.’” Id. (quoting Farmer, 511 U.S. at 837).
Where a plaintiff claims a failure to provide medical care “the alleged deprivation must
be sufficiently serious, in the sense that a condition of urgency, one that may produce
death, degeneration or extreme pain exists.” Hathaway v. Coughlin, 99 F.3d 550, 553
(1996) (internal citation and quotation marks omitted). Here, the proposed amended
complaint fails to plead any facts which plausibly assert any of the 29 proposed
defendants engaged in conduct upon which individual liability for Plaintiff’s alleged
Eighth Amendment violations may be inferred nor are there any allegations of fact upon
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which to plausibly infer that any of the proposed named defendants acted with the
prerequisite degree of deliberate indifference with regard to the alleged denial of
Blancke’s medical needs or safety. For example, nowhere does the Complaint allege
any Defendant or Doe defendant was even aware Blancke required medical care for
Blancke’s alleged bi-polar and ADHD disorders or how it may be inferred that such
persons acted with deliberate indifference to the likelihood that Karris’s presence in
Blancke’s cell would eventuate in Karris’s assault or in fact arranged for Karris’s
assignment to the cell. Plaintiff’s rote allegation that each Doe defendant “directly
participated in the unlawful activity that is the subject of this Complaint,” Complaint ¶ 13,
is simply too generalized and conclusory to state any facts to support a plausible Eighth
Amendment claim against any of the proposed defendants on any of Plaintiff’s four
theories of liability based on an awareness of Blancke’s medical needs, deliberate
indifference to a serious risk of harm to Blancke that would arise from Karris’s doublecelling with Blancke, or that any defendant was personally involved in the alleged
violations. See Atuahene v. City of Hartford, 10 Fed.Appx. 33, 34 (2d Cir. 2001)
(complaint that fails to give a defendant fair notice of the nature of a plaintiff’s claim and
the grounds upon which it is based is deficient) (internal quotation marks and citations
omitted); Carlin v. Davidson Fink LLP, 852 F.3d 207, 212 (2d Cir. 2017) (“‘[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory statements,
do not suffice’” to avoid dismissal under the applicable plausibility test (quoting Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009))); Wright v. Orleans Cty, N.Y., 2015 WL 5316410, at
*13 (W.D.N.Y Sept. 10, 2015) (“[p]leadings that fail to differentiate as to which
defendant was involved in the alleged unlawful conduct are insufficient to state a
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claim”), report and recommendation adopted, 2015 WL 13660397 (W.D.N.Y. Oct. 17,
2015); Spring v. Allegany Limestone Cent. Sch. Dist., 138 F.Supp.3d 282, 293
(W.D.N.Y. 2015) (“Because the personal involvement of a defendant is a prerequisite to
an award of damages under § 1983, a plaintiff cannot rely on group pleading against all
defendants without making specific factual allegations), vacated in part on other grds,
655 Fed.Appx 25 (2d Cir. 2016); Adamou v. Cty of Spotsylvania, N.Y., 2016 WL
1064608, at * 11 (S.D.N.Y. Mar. 14, 2016) (“Pleadings that fail to differentiate as to
which defendant was involved in the alleged unlawful conduct are insufficient to state a
claim.”). In sum, absent such specific factual allegations to support Plaintiff’s claims, it
is implausible to infer from the Complaint and proposed amended complaint that each of
the 29 proposed defendants were personally involved in the several Eighth Amendment
deprivations as Plaintiff has pleaded. Plaintiff’s motion should therefore be denied on
this ground as well.
4.

Good Faith / Prejudice.
Defendants also contend Plaintiff’s motion should be denied because Plaintiff

lacks a good faith basis for attempting to include the 29 proposed defendants at this
time and that such an amendment would unduly prejudice Defendants by dramatically
enlarging the scope of discovery causing extensive delay in achieving an earlier
disposition of the case. Defendants’ Memorandum, Dkt. 23, at 21-23. In opposition
Plaintiff contends Plaintiff has adequately pleaded the required degree of personal
involvement for Plaintiff’s Eighth Amendment claims and that as Plaintiff’s claims, as
asserted in the proposed amended complaint, are the same as alleged in the Complaint
and as depositions have not commenced, Defendants would not be significantly
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prejudiced in their ability to defend should the proposed amendment naming 29
additional defendant be granted. Plaintiff’s Reply, Dkt. 24, at 8-9. Plaintiff further
contends Plaintiff has a good faith belief for its proposed amended complaint as it is
Plaintiff’s “belief,” Dkt. 24 at 10, that the proposed defendants were responsible for
Blancke’s medical care, and “involved in the decision to place and/or escort Karris to the
[Blancke’s] cell and responsible for supervising the area where both Karris and . . .
[Blancke] were confined.” Dkt. 24 at 10. Notably absent, however, from Plaintiff’s
assertion is any reference to facts asserted in the proposed amended complaint upon
which Plaintiff’s “belief” regarding the 29 proposed individual defendants’ personal
involvement in the alleged conduct directed to Blancke is based. Moreover, Plaintiff
does not dispute Defendants’ representation that most of the 29 proposed defendants
who were also included as potential witnesses in Defendant’s Rule 26(a)(1) mandatory
disclosures had no direct involvement in the December 14, 2013 assault. Defendants’
Memorandum, Dkt. 23, at 21. Defendants also contend that Plaintiff attempts to name
Five Points superintendent, Michael Sheahan, Plaintiff’s Exh. 2 ¶ 39, deputy
superintendent of security Raymond Coveny, id. ¶ 40, deputy superintendent of
administration F/N/U Thoms, id. ¶ 25, and deputy superintendent of programs F/N/U
Jones, id. ¶ 26, but fails to allege supervisory liability against these proposed
defendants. Dkt. 23 at 21. Given the paucity of facts in Plaintiff’s allegations, it is also
not plausible that these supervisory defendants were personally involved or responsible
for Blancke’s medical treatment, participated in Karris’s assignment to Blancke’s cell in
order to ‘punish’ Blancke for his repeated misbehavior or were personally involved in the
alleged failure to provide emergency medical care to Blancke or prevent Karris’s
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assault. Defendants also assert proposed defendants Dewberry, Sheen, Henderson,
Pierce, and Schantz had no involvement in the incident as their activities related only to
post-assault functions. Dkt. 23 at 21. For example, according to Defendants, proposed
defendant Dewberry is the minister who informed Blancke’s family of his death. Plaintiff
has not responded to Defendants’ contention. Based on Plaintiff’s failure to rebut
Defendants’ contentions, the court finds Plaintiff lacked a good faith basis to substitute
these nine defendants. See United States ex. rel. Hayes v. Allstate Ins. Co., 686
Fed.Appx. 23, 28 (2d Cir. 2017) (“Leave to amend may be denied based on bad faith.”);
United States ex. rel. Takemoto v. ACE, Ltd., 157 F.Supp.3d 273, 284 (W.D.N.Y. 2015)
(denying leave to amend where the court “condude[d] that [plaintiff] lacked a good faith
basis for the allegations of the Amended Complaint.”) Accordingly, Plaintiff’s motion
should as to these proposed defendants also be denied for lack of a good faith basis.
Additionally, while depositions have not commenced, significant other discovery,
particularly, production of over 2,000 pages of documents, has been produced by
Defendants and if Plaintiff was allowed to add the proposed new defendants at this
time, Plaintiff’s discovery requests could potentially be multiplied to include as many as
725 additional interrogatories as well as 29 additional depositions. Defendants’
Memorandum, Dkt. 23 at 24. Where a proposed amended complaint would greatly
expand the scope of discovery leave to amend may be denied. See Singh v. N.Y. State
Dep’t of Taxation & Fin., 2011 WL 3273465, at *34 (W.D.N.Y. July 28, 2011) (“a
showing that significant additional discovery burdens will be incurred” sufficient basis to
deny leave to amend), report and recommendation adopted, 865 F.Supp.2d 344
(W.D.N.Y. 2011); Smith v. Wilson, 2017 U.S.Dist. LEXIS 125884, at *5 (D.Conn. Aug. 9,
36

2017) (“If plaintiffs are permitted to add such a significant number of defendants at this
stage of the litigation, it would dramatically expand the scope of discovery, resulting in
significant delay and hampering the court’s ability to efficiently try this case.”). Such
reasoning is especially applicable where as in this case, the proposed amended
complaint purports to assert such defendants’ liability “without making concrete
allegations that those defendants actually engaged in conduct that violated plaintiff’s
rights.” Smith, 2017 U.S. Dist. LEXIS 125884, at *45. Accordingly, Plaintiff’s motion
should also be denied on the ground of undue prejudice to Defendants.
5.

Plaintiff’s Request to Replead.
In Plaintiff’s motion, Plaintiff also requested the court to “extend Plaintiff’s time to

further amend the Complaint in its entirety.” Dkt. 21 at 2 (“Plaintiff’s request”). As
Defendants note, Plaintiff, other than a general statement that the Court “extend
Plaintiff’s time to further amend the Complaint” and “an extension of time to be allowed
[Plaintiff] to further amend the complaint in light of Defendants’ anticipated discovery
production,” does not explain why such permission to replead should be granted. See
Defendant’s Memorandum, Dkt. 23 at 25-26 (referencing Plaintiff’s Notice of Motion,
Dkt. 21 at 2, and Plaintiff’s Memorandum, Dkt. 21-1 at 4-5). Defendants acknowledge
responding to Plaintiff’s document production requests by producing “thousands of
pages of documents.” Defendants’ Memorandum, Dkt. 23 at 23. Defendants contend,
however, that Plaintiff waited until just prior to Plaintiff’s deadline, September 22, 2017,
for serving such discovery requests provided in the Scheduling Order, Dkt. 16, ¶ 8, see
Defendants’ Memorandum, Dkt. 23 at 25, and thus compromised Plaintiff’s ability to
move timely for an enlargement of time for motions to amend based on a need to review
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such discovery, negating the existence of good cause, which would unduly prejudice
Defendants, and constitute a “waste” of judicial time. Id. at 25-26. It is unclear from its
text whether Plaintiff’s request is one for permission to file a further amended complaint
or to amend the Scheduling Order pursuant to Fed.R.Civ.P. 16(b) to establish another
date before which to a file a further motion for leave to file an amended complaint.
Regardless of how it is construed, the court finds Plaintiff’s request would, on the
record, be futile and as such should be denied.
Generally, a complaint should not be dismissed “without granting leave to amend
at least once when a liberal reading of the complaint gives any indication that a valid
claim might be stated.” Shabazz v. Bezio, 511 Fed.Appx. 28, 31 (2d Cir. 2013) (pro se
plaintiff). Nevertheless, “[a] plaintiff need not be given leave to amend if . . . [plaintiff]
fails to specify either to the district court or to the court of appeals how amendment
would cure the pleading deficiencies.” TechnoMarine SA v. Giftports, Inc., 758 F.3d
493, 505 (2d Cir. 2014) (citing City of Pontiac Policemen’s & Firemen’s Retirement
System v. UBS AG, 752 F.2d 173, 188 n. 71 (2d Cir. 2014) (denying leave to amend
where ‘plaintiffs have identified no additional facts or legal theories – either on appeal or
to the District Court – they might assert if given leave to amend.”)).
To justify an amendment to a Scheduling Order, the requesting party must show
good cause, see Fed.R.Civ.P. 16(b), meaning that despite the exercise of reasonable
diligence, the deadline to be modified could not be met. BPP Illinois, LLC v. Royal Bank
of Scotland Group PLC, 859 F.3d 188, 195 (2d Cir. 2017) (citing Grochowski v. Phoenix
Constr., 318 F.3d 80, 86 (2d Cir. 2003)). Here, even allowing for the possibility that
upon completion of Plaintiff’s review of the Defendants’ produced documents Plaintiff
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was now able to particularize the identities of the Doe Defendants who Plaintiff alleges
violated Plaintiff’s Eighth Amendment rights as being plausibly culpable under any of
Plaintiff’s theories of liability – failure to treat Blancke’s medical conditions, deliberate
creation of serious risk to Blancke’s safety, a failure to intervene, and a failure to provide
prompt medical assistance, Plaintiff makes no effort to indicate how such information
could conceivably overcome the deficiencies in Plaintiff’s motion to avoid the conclusion
that Plaintiff’s claim nevertheless became time-barred as of December 14, 2016, and
that Plaintiff has therefore failed to state plausible claims for relief. Specifically, nothing
in the proposed amended complaint demonstrates that if Plaintiff were allowed to
replead Plaintiff could provide greater descriptive information sufficient to satisfy the
requirements of Rule 15(c)(1)(C), that within 90 days of filing the Complaint such Doe
Defendants had notice that but for a mistake as to their identity, such defendants would
be sued, or constituting facts establishing which of the Doe Defendants were culpably
and personally involved in any of Plaintiff’s four alleged Eighth Amendment violations,
as well as the facts underlying such violations. Nor does Plaintiff point to any reason to
find that with the advantage of Defendants’ recent document production in this case,
Plaintiff will now be able to demonstrate that Plaintiff provided the required degree of
notice to the Doe Defendants and exercised due diligence in seeking the identification
of Doe Defendants before the expiration of the statute of limitations as required by Rule
15(c)(1)(C) and § 1024, including N.Y.C.P.L.R. § 306-b, in order to avoid Plaintiff’s
claims from being time-barred by application of the relation-back relief available under
Rule 15(c)(1)(A) and § 1024. Finally, Plaintiff’s unexcused delay in serving discovery
requests also prevents finding Plaintiff exercised due diligence in effecting discovery
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thus defeating Plaintiff’s ability to establish good cause for Plaintiff’s request to amend
the Scheduling Order in order to enlarge the period for further motions to amend the
pleadings. See Jones v. J.C. Penney’s Dept. Stores, Inc., 317 Fed.Appx. 71, 75 (2d
Cir. Mar. 25, 2009) (finding district court did not abuse discretion in denying plaintiff’s
request for extension of time under Rule 16(b) where plaintiff’s own failure to diligently
pursue discovery caused delay and negated good faith). Even assuming Defendants’
discovery could assist Plaintiff (significantly, Plaintiff does not indicate that Plaintiff’s
preliminary review of Defendants’ documents has revealed any new information helpful
to Plaintiff) in repleading sufficient to avoid a further dismissal for failure to state a
claim, Plaintiff’s continuing inability to avoid Plaintiff’s proposed claims against the Doe
Defendants from being time-barred in this case, regardless of any repleading that could
state a valid claim, requires Plaintiff’s request to replead or amend the Scheduling
Order be denied as futile.
6.

Plaintiff’s Reply.
Defendants argue that Plaintiff’s failure to request in Plaintiff’s motion the option

to file a reply in accordance with Local R.Civ.P. 7(a)(1) requires the court to disregard
Plaintiff’s reply. While Defendants are correct that Plaintiff failed to comply with Local
Rule 7(a)(1), courts also have authority to waive strict application of local rules, see
Fed.R.Civ.P. 83(a)(2) (“A local rule imposing a requirement of form must not be
enforced in a way that causes a party to lose any right because of a nonwillful failure to
comply.”); Phoenix Global Ventures, LLC v. Phoenix Hotel Associates, Ltd., 422 F.3d
72, 76 (2d Cir. 2005) (recognizing “a district court has inherent authority to waive its
local rules. . . .”), and as the court finds Plaintiff’s Reply to be of assistance in evaluating
40

the merits of Plaintiff’s motion the court will forgo strict application of the Local Rule in
this case.
CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt. 21) is DENIED.
SO ORDERED.
/s/ Leslie G. Foschio
_________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: April 23rd, 2018
Buffalo, New York

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