Summary
denying plaintiff's motion to amend to include § 1983 claims as futile where the claims would be barred by the statute of limitations
Summary of this case from Tirse v. GilboOpinion
04 Civ. 4556 (SHS) (DF).
January 19, 2006
MEMORANDUM AND ORDER
INTRODUCTION
In this Section 1983 action, which has been referred to me for general pretrial supervision, pro se plaintiff Mamadou Diallo ("Plaintiff") seeks to amend his Complaint to add additional claims. Following a motion to dismiss, the only claim remaining in Plaintiff's original Complaint is a claim that the police used excessive force in connection with his April 21, 2004 arrest. The pending motion to amend now apparently seeks to add claims for false arrest, excessive force, and malicious prosecution, all arising out of Plaintiff's earlier arrest on November 15, 2000. Defendant opposes the amendment on the ground that permitting it would be futile, given the three-year statute of limitations that applies to Section 1983 claims. For the reasons discussed below, Plaintiff's motion to amend is denied in its entirety.
On November 1, 2005, the Honorable Sidney H. Stein issued an Order granting Defendant's motion to dismiss Plaintiff's claims for false arrest and malicious prosecution, which also arose out of Plaintiff's April 21, 2004 arrest. ( See Defendant's Opposition, dated Nov. 18, 2005 ("Def. Opp."), at Ex. 2.)
PROCEDURAL HISTORY
This Court has held several conferences with the parties. Each time, Plaintiff has stated his desire to include, in this action, claims arising out of his November 2000 arrest, even though the Court has repeatedly explained to Plaintiff that such claims do not appear to be pleaded in his Complaint. Indeed, Plaintiff's original Complaint only names "Sergeant Williams" as a defendant, and Plaintiff has confirmed that, although this defendant was involved in Plaintiff's 2004 arrest, the same defendant was not involved in Plaintiff's earlier November 2000 arrest. The Court repeatedly instructed Plaintiff that, if he wished to assert claims in this action relating to his 2000 arrest, he would need to seek leave to amend his pleading.On September 30, 2005, Plaintiff finally submitted a letter to the Court, which the Court construed as a request for leave to amend the Complaint to add claims under 42 U.S.C. § 1983 for false arrest, excessive force, and malicious prosecution, all arising out of Plaintiff's November 2000 arrest. ( See Order, dated Oct. 24, 2005; see also Letter to the Court from Plaintiff, dated Sept. 30, 2005 ("Mot. to Amend"), attached as Ex. 1 to Def. Opp.) In addition, Plaintiff sought leave to name as defendants the officers who were allegedly involved in that earlier arrest — New York City Police Department Officers Crispin Tarcardor and "Cooper." ( See id.)
In his submission, Plaintiff does not identify Officer Cooper's first name. Further, based on the arrest records that have been provided to the Court, Plaintiff seems to have misspelled the last name of the other newly named officer — the correct spelling is apparently "Tacardon."
As noted above, Defendant opposed Plaintiff's request for leave to amend on statute of limitations grounds. Although the Court provided Plaintiff with an opportunity to reply, Plaintiff has not replied to Defendant's statute of limitations argument.
The Court instructed Plaintiff that if he wished to submit a reply to Defendant's opposition, he was to do so no later than December 9, 2005. ( See 10/24/05 Order ¶ 1.) Although the Court received a letter dated December 2, 2005 from Plaintiff, that letter addresses the instant motion only in passing. Further, even when liberally construed, the letter does not appear to make any factual or legal arguments that relate to or would support Plaintiff's motion.
DISCUSSION
Federal Rule of Civil Procedure 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). A motion to amend a pleading under Rule 15(a) should be denied, however, "if there is an `apparent or declared reason — such as undue delay, bad faith or dilatory motive . . . repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel Known as "New York," 162 F.3d 63, 69 (2d Cir. 1998) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n. 6 (2d Cir. 1987) (citation omitted). The decision whether to grant leave to amend is within the sound discretion of the Court. See Foman, 371 U.S. at 182.Defendant argues that Plaintiff's motion for leave to amend should be denied as futile because Plaintiff's proposed Section 1983 claims would be barred by the applicable statute of limitations. ( See Def. Opp. at 1-2; see also Sepulveda v. City of New York, No. 01 Civ. 3117 (GBD), 2003 U.S. Dist. LEXIS 15182, at *6 (S.D.N.Y. Sept. 2, 2003) (holding that an amendment is futile where the claim would be time-barred); Mackensworth v. S.S. Am. Merchant, 28 F.3d 246, 251 (2d Cir. 1994) (finding denial of leave to amend complaint proper on futility grounds because proposed claim would have been barred by the statute of limitations); Covington v. City of New York, No. 95 Civ. 0196 (RPP), 1997 U.S. Dist. LEXIS 8009, at *3-4 (S.D.N.Y. June 10, 1997) (denying motion to amend where proposed Section 1983 claims were time-barred).) To avoid a time-bar under Section 1983, Plaintiff must have asserted his claims within three years of when he knew, or had reason to know, of his injury. ( See Def. Opp. at 2; see also Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 331-32 (2d Cir. 1997) ("the statute of limitations for a claim under § 1983 that accrued in New York is three years"); Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997) (a Section 1983 action accrues when the plaintiff knows or has reason to know of the injury).)
Liberally construing Plaintiff's motion to amend, he seeks to allege that, on November 15, 2000, he was falsely arrested by Officers Cooper and Tacardon; that he was "kick[ed] on the ground" and suffered "a lot of" injury during his arrest; and that the charges against him as a result of the arrest were subsequently dismissed. ( See Def. Opp. at Ex. 1.) By making these allegations, Plaintiff is apparently seeking to assert Section 1983 claims for false arrest, excessive force, and malicious prosecution.
Accepting Plaintiff's factual allegations as true, see, e.g., Nettis v. Levitt, 241 F.3d 186, 194 n. 4 (2d Cir. 2001), the three-year statute of limitations period for Plaintiff's false arrest and excessive force claims would have started to run on November 15, 2000 (the date of the arrest itself) and would have expired on November 15, 2003. See, e.g., Ormiston, 117 F.3d at 71 (noting that the date of arrest is used as the accrual date for such actions under Section 1983); Decristo v. City of New York, No. 03 Civ. 1819 (LAP) (AJP), 2004 U.S. Dist. LEXIS 9557, at *2 (S.D.N.Y. May 26, 2004) (noting that false arrest claims accrue at time of arrest and that excessive force claims accrue at the time force was used). Plaintiff, however, did not even file his original Complaint until May 12, 2004, approximately six months after the expiration of the statute of limitations period for those claims. Accordingly, any false arrest or excessive force claims arising out of Plaintiff's November 2000 arrest would be time-barred. See, e.g., Vigliano v. County of Westchester, No. 92 Civ. 3598 (MJL), 1998 U.S. Dist. LEXIS 20204, at *10 (S.D.N.Y. Dec. 30, 1998) (where plaintiff commenced action six years after day of arrest, claims for false arrest and excessive force were untimely); McIlwain v. Perez, No. 95 Civ. 3135, 1997 U.S. Dist. LEXIS 23860, at *6 (E.D.N.Y. Jan. 29, 1997) (where plaintiff filed action nearly five years after arrest, claim for false arrest was time-barred). Thus, Plaintiff's proposed amendment to add these new claims would be futile.
Although Plaintiff alleges that his arrest occurred on November 15, 2000, the documentation submitted to the Court suggests that the arrest may have taken place one day earlier ( see Def. Opp. at Ex. 3), which is not a material difference for purposes of the statute of limitations analysis here. The Court also notes that, at one place in its opposition papers, Defendant appears to have inadvertently referred to the date of Plaintiff's arrest as December (rather than November) 15, 2000, causing Defendant to incorrectly calculate the expiration of the three-year limitations period as December 15, 2003. ( See Def. Opp. at 1-2.)
A pro se plaintiff's complaint is deemed filed with this Court on the day that the Court's Pro Se Office receives a copy of the complaint. See, e.g., Ortiz v. Cornetta, 867 F.2d 146, 147-48 (2d Cir. 1989); Smith v. Keane, 1998 U.S. Dist. LEXIS 3702, at *11 (S.D.N.Y. Mar. 25, 1998). Although the docket reflects that Plaintiff's Complaint was filed on June 17, 2004, the original Complaint is stamped as received by the Pro Se office on May 12, 2004.
Likewise, it would be futile for Plaintiff to amend his Complaint to add the proposed new malicious prosecution claim, as that claim would also be time-barred. The three-year statute of limitations period for a malicious prosecution claim under Section 1983 begins to run on the date when the underlying criminal action is conclusively terminated. Pichardo v. New York Police Dep't, No. 98 Civ. 429 (DLC), 2000 U.S. Dist. LEXIS 8238, at *8 (S.D.N.Y. June 14, 2000). Here, the charges that arose from Plaintiff's November 2000 arrest were dismissed on May 24, 2001 ( see Def. Opp. at Ex. 3), and thus the limitations period for Plaintiff's malicious prosecution claim would have expired on May 24, 2004. Although Plaintiff's original Complaint was filed on May 12, 2004 ( see supra n. 6), which would have been within the limitations period, Plaintiff did not seek to plead the malicious prosecution claim relating to his November 2000 arrest until September 30, 2005, when he submitted the instant motion. Plaintiff's proposed claim would therefore be time-barred, unless, under Rule 15(c) of the Federal Rules of Civil Procedure, it can be said to "relate back" to his original Complaint. See Junior Gallery v. Neptune Orient Line, No. 94 Civ. 4518 (DC), 1997 U.S. Dist. LEXIS 499, at *17 (S.D.N.Y. Jan. 22, 1997).
In order for a claim to "relate back" to an original pleading, the proposed amendment "must arise `out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading,' and the defendant must have had the requisite notice of the original action and not be prejudiced in his defense on the merits." Id. at *17-18 (quoting Fed.R.Civ.P. 15(c)). In this case, Plaintiff's proposed amendment seeks to add a malicious prosecution claim arising from the charges brought against Plaintiff in 2000, charges that stemmed from a different arrest than the one described in the Complaint, and that were brought against Plaintiff over three years before the charges at issue in the Complaint. This would not satisfy the requirement that the new claim arise "out of the conduct, transaction or occurrence" originally pleaded. Moreover, as Plaintiffs' arrests in 2000 and 2004 were apparently made by different police officers, the newly-proposed defendants likely had no notice of the original action. For these reasons, Plaintiff's proposed malicious prosecution claim would not satisfy the criteria set out in Rule 15(c) for "relation back" to his original Complaint, and the proposed claim would therefore be time-barred. Accordingly, the proposed malicious prosecution claim would be subject to immediate dismissal if pleaded, and the request for the amendment must therefore be denied as futile.
COULUSION
For the reasons set forth above, Plaintiff's motion for leave to amend the Compalint is denied.