Deleon v. Ayers et al
Filing
29
DECISION AND ORDER, And REPORT AND RECOMMENDATIONS re 24 MOTION to Amend/Correct filed by Jason Deleon Objections due fourteen days from receipt. (Objections to R&R due by 10/7/2019). Signed by Hon. Jonathan W. Feldman on 9/19/2019. A copy of this order has been mailed to the Plaintiff at Auburn Correctional. (BK)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
JASON DELEON,
DECISION & ORDER
Plaintiff,
REPORT & RECOMMENDATION
16-CV-6848-DGL-JWF
JOEL R. AYERS,
et al.,
Defendants.
Preliminary Statement
Currently before the Court is pro se plaintiff Jason Deleon's
("plaintiff" or "Deleon") motion to
replace
defendants
("Spahalski"),
("Andrus"),
John
Jeffrey
and
Shawn
Doe
1-4
Harris
Pierson
(1)
amend his complaint to
with
Anthony
("Harris"),
("Pierson")
and
Spahalski
Joshua
(2)
Andrus
amend
his
complaint to add Matthew Smith ("Smith"), Debra Allen ("Allen"),
Brianne
Liddick
("Liddick"),
Emily
Brown
("Brown"),
and
Hanna
Martin ("Martin"), none of whom were previously identified in the
complaint or as John Doe defendants.
25) .
See Mot. to Amend (Docket #
For the reasons explained below, plaintiff's motion to amend
is granted with respect to Spahalski, Harris, Andrus, and Pierson
and the Court recommends that plaintiff's motion to amend be denied
with respect to Smith, Allen, Liddick, Brown, and Martin.
Factual Background
Plaintiff
filed his original complaint against Joel Ayers,
John Marshall, Joseph Bradley, Stephen Wenderlich, and five John
Does^ seeking relief under 42 U.S.C. § 1983.
1) .
See Compl. (Docket #
Plaintiff alleged that his constitutional rights were violated
by defendants' excessive use of force and that he was denied due
process of law and access to the courts while he was incarcerated
at Southport Correctional Facility.
See id.
The complaint alleged
that plaintiff was assaulted by officers on January 23, 2014 and
on April 21, 2014.
Wenderlich
See id. at 5-6.
allowed
Bradley
to
Plaintiff also contended that
oversee
plaintiff's
grievance
interview even though he knew Bradley had witnessed plaintiff's
beating and that officers subsequently destroyed plaintiff's legal
work.
Id.
In
Larimer
at
an
6.
Order
allowed
dismissed
some
1915(e)(2)(B)
complaint.
dated
some
of
June
claims
plaintiff's
and 1915A,
14,
to
proceed
claims
unless
See Docket # 4,
2017,
the
to
Honorable
service,
pursuant
the plaintiff
at 1.
to
28
David
but
G.
also
U.S.C.
§§
filed an amended
Judge Larimer allowed the
excessive use of force claim to proceed to service against Ayers,
Marshall, Bradley, and the five John Doe officers, but he dismissed
the due process and access to courts claims and all the allegations
against Wenderlich for failure to allege personal involvement,
unless plaintiff filed an amended complaint.
Id. at 3-9.
^ The caption of the complaint does not include John Does 1-5, but the body of
the complaint references them.
Docket # 1, at S.
On October 16,
2017,
plaintiff filed an amended complaint,
which set forth similar facts alleged in the original complaint,
but with additional details about the incidents involving the legal
papers and Wenderlich.
Specifically, plaintiff alleged that his
legal documents took him many years to acquire, and that their
destruction prevented him from adequately making out a claim and
barred him from access to the courts.
# 8), at 7.
grievance
initial
(Docket
Plaintiff also supplied additional details about the
investigation
complaint.
explained
See First Am. Compl.
that
process
In the
Bradley,
which
first
who
were
omitted
from
the
amended complaint plaintiff
investigated
the
first
assault,
encouraged Ayers and Marshall to attack him during his disciplinary
hearing and that Wenderlich appointed Bradley to oversee his
hearing,
in violation of department policy which states that an
officer who witnessed or was
conduct the rehearing.
involved in the
incident must
not
Id. at 8.
In an Order dated May 15, 2018, Judge Larimer dismissed with
prejudice plaintiff's denial of access to courts claim and all
claims relating to Wenderlich, finding that they failed to state
a
claim.
excessive
See Docket #
use
of
force
9,
at
claim
6.
that
However,
was
in addition to the
previously
allowed
to
proceed. Judge Larimer allowed the denial of due process claim to
proceed based on the theory that Bradley, who investigated the
first assault, encouraged Ayers and Marshall to attack plaintiff
during his
disciplinary hearing.
Id.
at
5.
The Order also
requested that the Attorney General determine the identities of
the five John Does within 30 days.
Id. at 3.
Plaintiff filed the present second motion to amend on February
4, 2019, this time seeking exclusively to "join other parties."
See Docket # 24, at 1.
Recognizing that plaintiff had failed to
comply with Federal Rule of Civil Procedure ("Rule") 15(a), the
Court ordered that plaintiff file a proposed amended complaint by
February 20, 2019.
See Docket # 25, at 1.
amended complaint was signed on February 19,
February 25,
2019.
Plaintiff's second
2019 and filed on
The second amended complaint identifies the
placeholder John Doe defendants and seeks to add several previously
unmentioned defendants.
See Docket #
27,
at 1-2.
Discussion
Under Rule
15(a)(2),
leave
to
amend
a
pleading
should be
freely granted, absent a showing of "excessive delay, prejudice to
the opposing party, or futility."
F.3d 79,
Corp. ,
87
(2d Cir.
310 F.3d 243,
Friedl v.
2000); accord Lucente v.
258
(2d Cir.
2002).
City of N.Y.,
210
Int'l Machs. Bus.
"A district court has
broad discretion in determining whether to grant leave to amend."
Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000).
Yet it is
the "party opposing the motion for leave to amend [that] carries
the
burden
of
demonstrating
that
it
will
be
substantially
prejudiced by the amendments."
State Farm. Mut. Auto. Ins. Co. v.
CPT Med. Servs., P.C., 246 F.R.D. 143, 148 (E.D.N.Y. 2007).
An amendment may
be
statute of limitations.
futile
if
it would be barred by the
The statute of limitations for plaintiff's
§ 1983 claims is governed by state law and is, in this case, three
years.
Frankel v. N.Y. State Office of Children & Family Servs.,
No.
11 CIV.
29,
2013).
7973 DAB RLE,
2013 WL 1803692,
at *7
(S.D.N.Y.
Apr.
The conduct plaintiff complains of occurred on or
before April 21, 2014, the last recorded date of an incident in
plaintiff's complaint.
Docket # 27,
at 5.
Plaintiff filed a
timely complaint on December 29, 2016, within three years of the
alleged
misconduct,
Wenderlich,
naming
as well as
Ayers,
Marshall,
Bradley,
and
five John Does at Southport Correctional
Facility. Docket # 1, at 7.
Plaintiff's second amended complaint seeks to both replace
John Does
1-4
in the original complaint with the names
of
the
discovered defendants,
as well as add entirely new defendants not
previously mentioned.
See Docket #24, at 1; see generally Docket
# 27.
Therefore, to be timely, and thus not futile, plaintiff's
allegations
against
defendants
named
in
the
proposed
second
amended complaint must relate back to his original complaint.
Under Rule 15(c)(1),
"[a]n amendment to a
back to the date of the original pleading when:
pleading relates
(A)
the
law
that
provides
the
applicable
statute
of
limitations allows relation back;
(B) the amendment asserts a claim or defense that arose
out of the conduct, transaction, or occurrence set out-
-or attempted to be set out--in the original pleading;
or
(C)
the amendment changes the party or the naming of the
party
against
15(c) (1) (B)
is
whom
a
claim
satisfied
and
is
if,
asserted,
within
if
the
Rule
period
provided by Rule 4 (m) for serving the summons and
complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will
not be prejudiced in defending on the merits; and
(ii) knew or should have known that the action would
have been brought against it, but for a mistake
concerning the proper party's identity.
Fed.
R.
Civ.
P.
15(c) (1).
Although this language suggests that
the Rule contemplated substitution rather than addition of a party,
courts have applied it for both substitution and addition of a
party.
See Maccharulo v. Gould, 643 F. Supp. 2d 587, 594 (S.D.N.Y.
2009) .
Proposed Defendants Spahalski, Harris, Andrus, and Pierson:
On May 15, 2018, Judge Larimer issued a Valentin Order, requesting
that the Attorney General's office produce the identities of the
John Doe defendants within 30 days of the Order.
3.
Docket #9,
at
The Order stated that the complaint would be deemed amended to
reflect the full names of the John Doe defendants when the Attorney
General produced the information.
Id.
It does not appear that
the Attorney General complied with this Order.
However,
upon
furnishing
plaintiff
plaintiff
seems
to
with
have
initial
discovery
independently
(Docket
deduced
the
#
22),
identities
necessary to amend his complaint with respect to the conduct he
complained of in his first amended complaint.
Pursuant
to
the
representations,
May
15
Order
and
based
on
See Docket # 24.
plaintiff's
own
this Court deems the first amended complaint
amended as to John Does 1-4,
replacing these names with Joshua
Andrus, Jeffrey Harris, Anthony Spahalski, and Shawn Pierson.
See
Docket # 8, at 1-2; Docket # 9; Docket # 27.
Plaintiff's
the
second
excessive use
amended
defendants Ayers,
complaint
Marshall,
of
force
may
Bradley,
claim as
proceed
to
Spahalski,
articulated in
service
against
Harris,
Andrus,
and Pierson, and his due process claim based on a biased hearing
officer may proceed to service against defendant Bradley.
Id.
Proposed Defendants Smith, Allen, Liddick, Brown, and Martin:
Plaintiff's proposed second amended complaint also seeks to add
Smith, Allen, Liddick, Brown, Martin, and the "staff from office
special investigations" as parties, none of whom were previously
named defendants or referenced in either complaint. See Docket #
27.
The Court concludes that the putative claims against these
parties do not relate back and would therefore be futile.
The
Second
Circuit
has
explained
the
"relation
back"
requirements for an amended complaint that seeks to add a new party
pursuant to Rule 15(c)(1)(C):
(1) the claim must have arisen out of conduct set out in
the original pleading;
must
have
received
(2)
such
the party to be brought in
notice
that
it
prejudiced in maintaining its defense;
should have known that,
will
(3)
not
be
that party
but for a mistake of identity,
the original action would have been brought against it;
and . . . [4] the second and third criteria are fulfilled
within 120 days of the filing of the Original Complaint,
and . . . the Original Complaint [was] filed within the
limitations period.
Hoqan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013)
(citing Barrow
V. Wethersfield Police Dep't., 66 F.3d 466, 468-69 (2d Cir. 1995))
(emphasis added).
Here, plaintiff's putative second amended complaint adding
new parties does not relate back, and thus, should be denied.
It
is apparent that there was no mistake of identity in the original
claim that would have alerted the proposed new defendants that
they were parties to the lawsuit.
alone a mistake as to,
There was no mention of, let
the identity of a nurse,
teacher, mental
health staff person, supervisor of the inmate grievance program,
or
Office
complaint.
of
Special
Investigation
employee
in
the
original
See Docket # 1, at 5-6; Docket # 8.
Additionally, although, as discussed above, there was mention
of a fifth John Doe in the original complaint. Officer Smith was
part of the incident that occured on January 23, 2014, and the
fifth John Doe Officer was alleged to have taken part in the
incident that occurred on April 21, 2014.
See id.
As the court
stated in Barrow, "the failure to identify individual defendants
when the plaintiff knows that such defendants must be named cannot
be
characterized
as
a
mistake."
Barrow,
66
F.3d
at
plaintiff therefore may not use Rule 15(c) (1) (C)
de f endant s.
470.
The
to add these
Id.
The federal relation back rule also permits courts to utilize
state
law
for
relation back
principle of relation back."
2016
WL
5940373,
at
quotations omitted).
*7
"if
it
provides
a
more
forgiving
Lin v. Joedy, No. 6:10-CV-6474 EAW,
(W.D.N.Y.
Oct.
12,
2016)
(internal
New York law allows relation back when:
(1) both claims arose out of same conduct, transaction
or occurrence, (2) the new party is 'united in interest'
with the original defendant, and by reason of that
relationship can be charged with such notice of the
institution of the action that he will not be prejudiced
in maintaining his defense on the merits and (3) the new
party knew or should have known that, but for [a] mistake
by plaintiff as to the identity of the proper parties,
the action would have been brought against him as well.
Amaya v. Garden City Irrigation,
(E.D.N.Y. 2009)
Inc.,
645 F. Supp. 2d 116,
121
(quoting another source).
New York's relation back law does not help plaintiff here.
As
discussed
above,
there
was
no
mistake
on
the
part
of
the
plaintiff as to the identities of Smith, Allen, Liddick, Brown,
Martin, or the staff from the Office of Special Investigations in
the original complaint.
Accordingly, plaintiff cannot use Rule
15(c)(1)(A) to amend his complaint.
See Colson v. Haber, No. 13-
CV-5395, 2016 WL 236220 (W.D.N.Y. Jan. 20, 2016) at *5 (finding
that New York's "requirement closely follows Rule 15(c)(l)(C)'s
requirement" ) .
Because my findings and conclusions regarding the futility of
plaintiff's motion to amend the second amended complaint to add
Smith, Liddick, Brown, Martin, and the "staff from office special
investigations" as defendants are case-dispositive with respect to
those individuals, my determinations are made as part of a Report
and Recommendation and not
Delta Airlines,
Inc.,
(E.D.N.Y. March 20,
to amend,
No.
2011)
a
Decision and Order.
09-CV-4084
(ENV) (JO) ,
Lempke, No.
2011 WL 1215081
is a dispositive decision
novo review of any objection to it.");
09-CV-86A,
Pusey v.
("A magistrate judge's denial of leave
when premised on futility,
warranting ^
See
2010 WL 3834643
Gomez v.
(W.D.N.Y. Sept. 29,
2010)
(adopting Report and Recommendation to deny petitioner's Motion to
Amend);
HCC,
Inc.
v.
RH&M Mach.
(S.D.N.Y. Jan. 19 1999)
Co.,
39 F.
Supp.
2d 317,
321-22
("This Court is of the view that denial of
leave to amend is a dispositive decision at least in situations
where
the
denial
is
premised on futility.");
U.S.C. § 636(b)(1)(B).
see
generally 28
Plaintiff is advised to read carefully the
supplemental order attached to this Report and Recommendation and
comply
with
procedures
all
for
time
limits
filing
set
forth
objections
Recommendation.
10
therein
to
this
regarding
the
Report
and
John
Doe
5:
Finally,
in
his
first
amended
complaint,
plaintiff sued five John Does for conduct related to excessive
force,
but he has
dropped John Doe
amended complaint.
Indeed,
5
from his proposed second
his motion to amend only identifies
the four above-referenced individuals by name.
at 1.
John
See Docket # 24,
Plaintiff now claims that his "original complaint had four
Doe
additional
incidents.
defendants"
John Doe
Id.
and
for
he
makes
conduct
no
mention
related to
the
of
adding
excessive
an
force
Because the second amended complaint is now the
operative pleading and John Doe 5 was not named in the second
amended complaint, John Doe 5 is no longer a party to this action.
Conclusion
For the reasons stated above, plaintiff's motion to amend his
complaint
(Docket #24)
is granted with respect to defendants
Spahalski, Harris, Andrus, and Pierson.
substitute
those
defendants
The Clerk is directed to
for John Does 1-4.
For
the
reasons
stated above, it is my Report and Recommendation that plaintiff's
motion to amend (Docket #24) be denied with respect to putative
defendants Smith, Allen, Liddick, Brown, and Martin.
The second
amended complaint - only insofar as it articulates claims against
Ayers, Marshall, Bradley, Spahalski, Harris, Andrus, and Pierson
-
is the operative pleading.
The United States Marshal shall
11
direct
service
on
defendants
Spahalski,
Harris,
Andrus,
Pierson.
IT
IS
SO
ORDERED.
Q
Jh
NATHAN
United
Dated:
September
Rochester,
2019
New York
12
W .
States
Magistrate Judge
FELDMAN
and
Pursuant to 28 U.S.C.
§ 636(b)(1),
i t is hereby
ORDERED, that this Report and Recommendation be filed with the
Clerk of
the
Court.
ANY OBJECTIONS to this Report and Recommendation must be filed
with the Clerk of this Court within fourteen (14) days after receipt of a
copy of this Report and Recommendation in accordance with the above statute.
Fed.
R.
Civ.
P.
72(b)
and Local Rule 72(b).
The district court will ordinarily refuse to consider on de novo
review arguments, case law and/or evidentiary material which could have been,
but was not, presented to the magistrate judge in the first instance. See,
e.g., Patterson-Leitch Co., Inc. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d
985
(1st Cir.
1988) .
Failure to file objections within the specified time or to
request an extension of such time waives the right to appeal the District
Court's Order.
Thomas v. Arn, 474 U.S.
et al., 838 F.2d 55 (2d Cir. 1988) .
140
(1985);
Wesolek v.
Canadair Ltd.,
The parties are reminded that, pursuant to Rule 72(b) of the
Local Rules for the Western District of New York,
"[w]ritten objections ...
shall specifically identify the portions of the proposed findings and
recommendations to which objection is made and the basis for each objection,
and shall be supported by legal authority." Failure to comply with the
provisions of Local Rule 72 (b) (concerning review of and objections to a
Magistrate Judge's findings of fact and recommendations), may result in the
District Court's refusal to consider the objection.
Let the Clerk send a copy of this Order and a copy of the Report
and Recommendation to the Plaintiff and the attorneys for the Defendant.
SO
ORDERED.
'Mm
lonathan W.
Feldman
Uitited States Magistrate Judge
Dated:
September /^, 2019
Rochester,
New York
13
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