Shell v. Brzezniak

• Decision Date: 21 April 2005
• Docket Number: No. 00-CV-6152L.,00-CV-6152L.
• Citation: 365 F.Supp.2d 362
• Parties: Harold J. SHELL, Plaintiff, v. Correction Officer Nicholas BRZEZNIAK, et al., Defendants.
• Court: U.S. District Court — Western District of New York

365 F.Supp.2d 362

Harold J. SHELL, Plaintiff, v. Correction Officer Nicholas BRZEZNIAK, et al., Defendants.

No. 00-CV-6152L.

United States District Court, W.D. New York.

April 21, 2005.

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Harold J. Shell, Elmira, NY, for Plaintiff.

Gary M. Levine, Esq., Rochester, NY, for Defendants.

DECISION AND ORDER

LARIMER, District Judge.

INTRODUCTION

Plaintiff, Harold J. Shell, Jr., an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), proceeding pro se, filed this action pursuant to 42 U.S.C. § 1983 alleging that defendants violated his constitutional rights while an inmate at Attica, Green Haven, and Great Meadow Correctional Facilities in 1997 and 2000.

In his first amended complaint, plaintiff alleges that defendants Correctional Officers Kevin Brun, Nicholas Brzezniak, David Pirrami, and Mark Cunningham violated his Eighth Amendment rights by assaulting him on March 24, 1997 at Attica. Plaintiff alleges that defendant Brzezniak again violated his First and Eighth Amendment rights on November 28, 2000 when he assaulted him a second time at Attica in retaliation for filing this lawsuit. Plaintiff also alleges that Sergeant Richard Simmons failed to protect him from Brzezniak. For his last claim, plaintiff asserts that Great Meadow Superintendent James Stinson violated his First Amendment right to access to court by promulgating restrictive policies regarding access to legal materials. (See Amended and Supplemental Complaints, Dkts. 13, 14, and 15).

By Decision and Order (Dkt.# 44), I granted partial summary judgment in favor of defendants Brun, Brzezniak, Pirrami, and Cunningham based on collateral estoppel and dismissed plaintiff's first claim concerning the March 24, 1997 incident.

Before the Court is plaintiff's motion to amend his complaint for a third time (Dkt.# 18)¹ to add new claims and new parties pursuant to Fed.R.Civ.P. 15. Plaintiff seeks to add parties he claims were previously unknown to him. He also seeks to add claims based on the denial of medical care and for incidents that occurred after he commenced the instant action. In all, plaintiff seeks to expand his first amended complaint from three claims against seven defendants to a complaint alleging fifteen claims against fifty defendants. In support of his motion, plaintiff filed hundreds of pages of exhibits and audio tapes of his disciplinary hearings.

For the reasons set forth below, plaintiff's motion to amend is granted in part and denied in part.

DISCUSSION

I. Motion to Amend Standards

Pursuant to Fed.R.Civ.P. 15(a), leave to amend pleadings shall be freely granted when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85 (W.D.N.Y.2003). Nonetheless, the decision of whether to grant leave to amend remains within the court's discretion. John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.1994) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)); cf. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (court's decision on whether to allow amendment is reviewed for abuse of discretion).

In this regard, no amendment should be allowed if plaintiff could not prevail on an amended claim because it is futile or untimely, because it fails to state a claim, or because the movant engaged in undue delay. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001) ("even if the amended complaint would state a valid claim on its face, the court may deny the amendment as futile when the evidence in support of the plaintiff's proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under Fed.R.Civ.P. 56(c)."); John Hancock, 22 F.3d at 462; McKinney v. Eastman Kodak Co., 975 F.Supp. 462, 465 (W.D.N.Y.1997) ("An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a motion to dismiss on some other basis.").

Defendants challenge the sufficiency of each of plaintiff's proposed amended claims. They argue that plaintiff fails, for one or more reasons, to state a claim upon which relief can be granted. In essence, defendants contend that the claims would fail to survive a motion under Fed.R.Civ.P. 12(b)(6). I examine plaintiff's fifteen proposed amended claims seriatim, bearing in mind the principles that apply to a motion to dismiss.²

II. First and Third Claims — Deliberate Indifference to Serious Medical Needs at Attica

Plaintiff's first and third claims allege that defendants Kelly, McCray, Frisby, O'Connell, Laskowski, Strzelczyk, Struebel, and Eagen were deliberately indifferent to his serious medical needs in March of 1997, in violation of his Eighth Amendment rights. Plaintiff alleges that he had serious preexisting medical conditions related to his right foot, ankle, and leg that defendants failed to adequately and timely treat upon his incarceration. Plaintiff also claims that defendants failed to adequately treat him after he allegedly was assaulted on March 24, 1997.

There is no dispute that the first and third claims concern events that fall outside the three year statute of limitations applicable to § 1983 claims.³ See Jewell v. County of Nassau, 917 F.2d 738, 740 (2d Cir.1990). Under these circumstances, plaintiff may amend only if the new claim would "relate back" to the date his original complaint was filed. See Fed.R.Civ.P. 15(c); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir.1996).

An amendment to a pleading that attempts to add a new party "relates back" to the date of the original complaint only if: (1) the claim arises out of conduct set forth in the original pleading; (2) the party to be added received notice such that he or she will not be prejudiced in maintaining a defense; (3) the party to be added should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third requirements are fulfilled within the period prescribed in FED.R.CIV.P. 4(m) for service of process. See FED.R.CIV.P. 15(c)(3); Soto, 80 F.3d at 35; Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468-69 (2d Cir.1995), modified, 74 F.3d 1366 (2d Cir.1996).

Plaintiff's first and third claims fail. He has not met any of the requirements outlined above, although it is the third requirement that is clearly fatal to the claims. Plaintiff alleges that he could not have named these defendants in the original pleading because he was not aware of their names until he requested information from the New York State Attorney General's Office in March 2001. (See Dkt. # 18, Exs. 15, 16, and 17). Even if this were the case, it does not constitute a "mistake" within the meaning of Rule 15(c). The Second Circuit has held that "Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities." Barrow, 66 F.3d at 470.

Plaintiff's failure to bring these claims against defendants during the applicable limitations period, therefore, is not based on a "mistake of identity," but is based on a lack of knowledge of defendants' identities. Thus, the claims do not relate back to the original pleading. See Barrow, 74 F.3d at 1367 ("the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake."); Covington v. City of New York, No. 95 Civ. 0196, 1997 WL 311922, *1 (S.D.N.Y. June 10, 1997) (denying plaintiff's request to amend complaint to identify one of "12 Unknown Members of the Manhattan South Tactical Narcotics Team" because his failure to identify them earlier was "clearly due to his lack of knowledge of their names rather than due to factual or legal mistake"); Daniels v. Loizzo, 174 F.R.D. 295, 300 (S.D.N.Y.1997) (noting that attempt to supply names would not be allowed where the amendment would only correct plaintiff's lack of knowledge, not a mistake); Steiner v. City of New York, 920 F.Supp. 333, 341-42 (E.D.N.Y.1996).

Plaintiff's reliance on the "continuing violation" or "continuing harm" rule is misplaced. Plaintiff does not allege that defendants continued to be involved with his medical care after March or April 1997. Having failed to allege any conduct by defendants that would fall within the timely filing period, the rule does not save his claims. Pino v. Ryan, 49 F.3d 51, 54 (2d Cir.1995) (to assert a continuous violation, plaintiff must allege that defendants violated his constitutional rights during the filing period); Verley v. Goord, No. 02 Civ. 1182, 2004 WL 526740, *7 (S.D.N.Y. Jan. 23, 2004) (dismissing as untimely claims for deliberate indifference of serious medical needs where defendants' involvement consisted of isolated acts that occurred over three years before the complaint was filed).

Moreover, plaintiff's motion to amend to add deliberate indifference claims is denied for the additional reason that plaintiff engaged in undue delay. In his original complaint, plaintiff made only a fleeting reference to a claim for the "denial of medical attention." (Dkt. # 1, p. 5). As a result, upon initial review of the pro se complaint pursuant to 28 U.S.C § 1915A, Judge John T. Elfvin of this Court held that plaintiff had not alleged a deliberate indifference claim. (Dkt. # 5). He then granted plaintiff an opportunity to amend his complaint to set forth with particularity his Eighth Amendment claims for deliberate indifference to medical needs. (Dkt.# 3). Plaintiff, however, explicitly declined to do so, informing the Court that he was not pursuing medical claims. (See Dkts. 6, 7). He thereafter filed a first amended complaint that did not include deliberate indifference claims. (Dkts. 13, 14). More than a year after he abandoned these claims, plaintiff now...