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finding a mistake with the meaning of Rule 15(c)(B) where plaintiff identified by name several government agents, but subsequently learned in motion to dismiss that identified individuals were not the arresting officers
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03 Civ. 3905 (RJH).
September 25, 2006
MEMORANDUM OPINION AND ORDER
Pro se plaintiff Jose Miguel Vasquez brought this action against five employees of the United States Customs Service in their individual capacities (collectively "defendants"), alleging that defendants unlawfully assaulted him during an arrest and denied him proper medical attention. Although the complaint indicates that plaintiff's constitutional claims purport to be brought under 42 U.S.C. § 1983, they are properly construed as claims for violations of the United States Constitution under Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), because the defendants are all federal employees acting under federal law. Vasquez is proceeding in forma pauperis and is currently incarcerated at the Beaumont Federal Correctional Complex located in Beaumont, Texas. Defendants have moved to dismiss the complaint, or, alternatively, for summary judgment pursuant to Rule 56. Fed.R.Civ.Proc. 56.
On March 1, 2003, the United States Customs Service, along with several other federal agencies, was reorganized under the newly created Department of Homeland Security. Former Customs Service employees are now employed by the Department of Homeland Security's Bureau of Customs and Border Protection and Bureau of Immigration and Customs Enforcement.
Damages suits complaining about unconstitutional actions by federal law enforcement officers are governed by Bivens if the suit is against the officers and by the Federal Tort Claims Act (FTCA) if it is against the United States. See Carlson v. Green, 446 U.S. 14, 20 (1980). The orders issued in this case by the Hon. Michael B. Mukasey on May 29, 2003 and by this Court on August 2, 2005 after the case was transferred mistakenly referred to plaintiff's claim as a § 1983 claim, but this error had no effect on the outcomes of either decision.
For the reasons set forth below, the Court grants defendants' motion to dismiss [22] and grants Vasquez's cross-motion to amend his complaint.
BACKGROUND
The substance of Vasquez's complaint arises from his arrest on February 19, 2002. In his complaint, Vasquez claims that he was handcuffed and beaten by one of the defendants during the arrest and the other defendants participated in this arrest. As a result of this alleged beating, Vasquez claims that his shoulder was injured.
Following the arrest, Vasquez was detained at the Metropolitan Detention Center ("MDC"). On April 4, 2003, the Court's Pro Se Office received Vasquez's complaint, in which he alleges that defendants Balderacchi, Goode, Healy, Mauro, and Mill unlawfully assaulted him during the February 19, 2002 arrest and denied him proper medical treatment following his detention at the MDC. By unpublished Order dated May 29, 2003, Judge Mukasey: (1) dismissed Vasquez's § 1983 claim for inadequate medical attention for improper venue; and (2) granted Vasquez's request to proceed in forma pauperis with respect to his § 1983 claim seeking monetary relief for his injuries suffered during the February 19, 2002 arrest. Vasquez v. Mill et al., No. 3 Civ. 3905 (S.D.N.Y. 2003).
According to the complaint, "P. Mill" is a "Special Agent" of "Customs U.S.," but the U.S. Attorney's Office for the Southern District of New York has been unable to locate a current or former employee with the name "P. Mill" in the United States Customs Service or its successors. (Def. Mot. n. 1; Skinner Decl. ¶¶ 2-3.)
On November 21, 2003, the Court directed Vasquez to explain in writing why he had failed to serve the summons and complaint within the 120 days prescribed by Rule 4(m), or alternatively, to set forth the dates and manner in which defendants were served. See Fed.R.Civ.Proc. 4(1), (m). In a letter dated November 25, 2003, Vasquez conceded that he had not properly served defendants. He further requested a continuance, explaining that the paralegal providing him assistance had been incarcerated. On December 2, 2003, the Court directed plaintiff to serve defendants by January 26, 2004.
By letter dated April 29, 2004, Vasquez again requested an extension to serve his summons and complaint on defendants. On May 4, 2004, the Court granted the request and extended the time to serve by 30 days. On May 17, 2004, Vasquez attempted to serve each defendant by certified mail addressed to the United States Courthouse in the Southern District of New York.
On November 19, 2004, defendants moved to dismiss the complaint for insufficiency of service. See Fed.R.Civ.Proc. 12(b)(5). The Court found that Vasquez had not effected proper service under Rule 4(i) and that the 120-day period for service had expired under Rule 4(m). Vasquez v. Mill, No. 2003 Civ. 3905 (RJH), 2005 U.S. Dist. LEXIS 16381, 2005 WL 1902913, at *2 (S.D.N.Y. Aug. 8, 2005). The Court also found that Vasquez had failed to show good cause for a continuance and that the Court was entitled to dismiss the complaint without prejudice. Id. at *2-*3. Nevertheless, the Court granted the continuance, reasoning that Vasquez would be barred by the applicable statute of limitations from re-filing his claim after a dismissal, and defendants would not be prejudiced by granting relief. Id. The Court directed Vasquez to effect proper service under Rule 4(i) within ninety days, adding, "no further extensions will be granted, and that if he fails to effect proper service, his claims may be dismissed." Id. The government subsequently provided Vasquez with addresses for defendants Balderacchi, Goode, and Healy and informed Vasquez that the United States Attorney's Office for the Southern District of New York ("U.S. Attorney's Office") was authorized to accept service of process on behalf of defendant Mauro, who had retired. Shortly thereafter, Vasquez mailed the summons and complaint to Balderacchi, Goode, Healy, and the U.S. Attorney's Office at the addresses provided.
On November 28, 2005, defendants filed the instant motion to dismiss the complaint in its entirety for failure to state a claim pursuant to Rule 12(b)(6), or, in the alternative, for summary judgment. See Fed.R.Civ.Proc. 12(b)(6), 56. Defendants Balderacchi and Mauro further moved to dismiss for insufficient service of process pursuant to Rule 12(b)(5). See Fed.R.Civ.Proc. 12(b)(5). In support of their motion to dismiss, defendants argue that Vasquez has failed to make specific allegations regarding defendants' role in his arrest. Significantly, defendants revealed for the first time that Balderacchi, Goode, Healy, and Mauro are not Vasquez's arresting officers but instead are the individuals who signed their names on the "Chain of Custody" record for currency totaling $564,830 that was seized during Vasquez's arrest.
The handwritten name "P. Mill," or possibly "R. Hill," also appears on the "Chain of Custody" record above Balderacchi's, Goode's, Healy's, and Mauro's names, presumably explaining why Vasquez named "P. Mill" as a defendant.
In his response, Vasquez stated that "he was under the impression that the officers named in the suit were the one who had injury him [sic]," but, finding out that he was wrong, was willing to concede that he had no claims against the named defendants. (Pl. Mot., Apr. 4, 2005, at 1.) He requested leave to amend his complaint to name "Unknown Customs Agents" as the sole defendants and asked the Court to permit the amended complaint to relate back to the original complaint. See Fed.R.Civ.Proc. 15(c). He also requested appointment of counsel and filed a motion for discovery under Rule 26, asking defendants to provide the names of his arresting officers. See Fed.R.Civ.Proc. 26. In a letter to the Court, the U.S. Attorney's Office indicated that the individual defendants do not oppose Vasquez's motion to amend his complaint. However, the government argues that any federal claims against the arresting officers would be time-barred, since the arrest took place more than three years ago, and the newly asserted claims would not relate back to the filing of the original complaint, in accordance with the terms of Rule 15(c).
DISCUSSION
1. Vasquez's Motion to Amend His Complaint
a. Requirements for Amendments of Pleadings
Rule 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires." Fed.R.Civ.Proc. 15(a). Leave to amend should be granted unless there is "any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir. 2000) (noting that leave to amend is "discretionary" and should be "freely given"); Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993) ("The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith.").
However, an "appropriate basis for denying leave to amend is that the proposed amendment is futile." Lucente v. IBM Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citing Nettis v. Levitt, 241 F.3d 186, 193 (2d Cir. 2001)); see also Foman, 371 U.S. at 182; Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). "A proposed amendment to a pleading [is] futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Oneida Indian Nation v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003), rev'd on other grounds, 544 U.S. 197 (2005); see also Lucente, 310 F.3d at 258 (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied").
Here, the government argues that permitting Vasquez to amend his complaint to name "Unknown Customs Agents" as the sole defendants is futile because, once identified, any federal claims against the arresting officers are time-barred.
b. Statute of Limitations
The applicable statute of limitations for Bivens actions arising in New York is three years, which begins to run from the moment plaintiff is aware of the injury on which the claim is based. Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d Cir. 1999). Vasquez was arrested on February 19, 2002, so the relevant limitations period on Vasquez's Bivens claim expired on February 19, 2005. Therefore, the proposed amendments are time-barred unless they "relate back" to the original complaint. See Fed.R.Civ.P. 15(c); VKK Corp. v. Nat'l Football League, 244 F.3d 114, 128 (2d Cir. 2001) ("If a complaint is amended to include an additional defendant after the statute of limitations has run, the amended complaint is not time barred if it 'relates back' to a timely filed complaint."); Hickey v. City of New York, No. 01 Civ. 6506, 2004 U.S. Dist. LEXIS 5753 (S.D.N.Y. Apr. 5, 2004) (Maas, M.J.) (same).
c. Relation Back
Under Rules 15(c)(2) and (3), an amendment changing the name of a defendant relates back to the original pleading if the claims against the new party arise out of the same conduct or occurrence set forth in the original pleading, and, "within the period provided by Rule 4(m) for service of the summons and complaint," the new defendant (1) had received such notice of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the new defendant. Fed.R.Civ.P. 15(c)(2)-(3). See Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996); Scott v. Coughlin, 944 F. Supp. 266, 270 (S.D.N.Y. 1996); Byrd v. Abate, 964 F. Supp. 140, 145 (S.D.N.Y. 1997). There is no dispute that the claims that Vasquez seeks to assert against his arresting officers arose out of the occurrences set forth in the original Complaint. Therefore, the question as to whether a proposed amendment would relate back to the filing of the Complaint turns on whether naming Balderacchi, Goode, Healy, Mauro, and Mill was a "mistake concerning the identity of the proper party" within the meaning of Rule 15(c)(3)(B), and whether the new defendants had notice of the Complaint within the 120-day period for service of process, as required by Rule 15(c)(3)(A).
i. Mistake
Vasquez claims that he brought suit against the defendants because he believed that they were in fact the arresting officers who had wrongfully assaulted him. Defendants, relying on Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 469 (2d Cir. 1995), argue that this type of mistake does not fall within the parameters of Rule 15(c)(3)(B). In Barrow, the Second Circuit held that where "new names [are] added not to correct a mistake but to correct a lack of knowledge, the requirements of Rule 15(c) for relation back are not met." 66 F.3d at 470 (2d Cir. 1995). In the Barrow case, the pro se prisoner-plaintiff listed ten "John Doe" defendants. The district court explicitly informed him within the limitations period that he must identify and name the individual officers as defendants, but he failed to do so until after the limitations period had run. See id. The Court held that the amended complaint did not relate back to the original complaint, explaining that although "Rule 15(c) explicitly allows the relation back of an amendment due to a 'mistake' concerning the identity of the parties . . . the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake." Id., as amended, 74 F.3d 1366 (2d Cir. 1996).
Here, Vasquez did not fail to identify individual defendants; he named the wrong parties. His Complaint makes clear that he believed that defendants Balderacchi, Goode, Healy, Mauro, and Mill were his arresting officers. ( See Compl. 3-4.) It was only after receiving defendants' motion to dismiss that Vasquez learned that the named defendants were not in fact his arresting officers. "[I]n contrast with Barrow, [Vasquez] was never advised by the Court that he named the wrong party and that he was obligated to name and serve the correct party with process, but chose not to do so." Smalls v. Fraser, No. 05 Civ. 6575, 2006 U.S. Dist. LEXIS 56184, 2006 WL 2336911, at *3 (S.D.N.Y. Aug. 11, 2006) (Katz, M.J.). Therefore, the Court finds that Vasquez's identification of Balderacchi, Goode, Healy, Mauro, and Mill as his arresting officers was a mistake in identity that falls within the parameters of Rule 15(c)(3)(B). See Soto, 80 F.3d at 36 (permitting pro se prisoner-plaintiff to amend complaint to name individual officers rather than correctional facility as defendant in § 1983 suit because "but for his mistake as to the technicalities of constitutional tort law, he would have named the officers in the original complaint, within the three-year limitations period," id. at 37); Cornwell v. Robinson, 23 F.3d 694 (2d Cir. 1994) (suggesting that in a case where plaintiff misapprehended the identities of the individuals that plaintiff wished to sue, Rule 15(c) would permit relation back); Noguera v. Hasty, No. 99 Civ. 8786, 2000 U.S. Dist. LEXIS 11956, 2000 WL 1011563, at *15-*16 (S.D.N.Y. July 21, 2000) (Peck, M.J.) (permitting relation back where plaintiff misidentified the warden of the facility and subsequently named the correct warden), report and recommendation adopted on other grounds, 2001 U.S. Dist. LEXIS 2458, 2001 WL 243535 (S.D.N.Y. Mar. 12, 2001).
ii. Notice and Prejudice
For Vasquez's amended complaint to relate back to the filing of the original Complaint, the Court must also find that the new defendants had sufficient notice and knowledge of the Complaint "within the period provided by Rule 4(m) for service of the summons and complaint" so as to avoid prejudice as required by Rule 15(c)(3)(A). "In allowing a name-correcting amendment within the time allowed by Rule 4(m), this rule allows not only the 120 days specified in that rule, but also any additional time resulting from any extension ordered by the court pursuant to that rule. . . ." Fed.R.Civ.P. 15 Advisory Committee Notes, 1991 Amendment, 28 U.S.C.A. Rule 15, at 658 (1992); see also Thomas v. Arevalo, No. 95 Civ. 4704 (SS), 1998 U.S. Dist. LEXIS 11588, 1998 WL 427623, at *12 (S.D.N.Y. July 28, 1998) (holding that "because the Court had granted plaintiff's requests for an extension of the Rule 4(m) period, the fact that defendant . . . was not served within 120 days from the date the original summons was issued by the Court does not preclude relating the Third Amended Complaint back to the original complaint"). In Vasquez's case, the Court on August 2, 2005 granted him a ninety-day extension to serve the summons and complaint on defendants. Accordingly, under Rule 15(c)(3)(A), the limitations period ended October 31, 2005.
There is no evidence that Vasquez's arresting officers have received notice of this action personally, as they have not yet been identified to Vasquez or served with the Complaint. However, the arresting officers and the named defendants share the same attorney, the U.S. Attorney's Office. Under well-established Second Circuit precedent, "the court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the officials originally sued, so long as there is some showing that the attorneys knew that the additional defendants would be added to the existing suit." Scott v. Coughlin, 944 F. Supp. 266, 270 (S.D.N.Y. 1996) (quoting Velez v. Koehler, No. 87 Civ. 2019, 1991 U.S. Dist. LEXIS 9295, 1991 WL 130913 at *2 (S.D.N.Y. July 18, 1991)), vacated on other grounds, 138 F.3d 474 (2d Cir. 1998); see also, e.g., Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989) (in deciding whether the government attorney possessed the requisite knowledge, the relevant inquiry is whether the attorney "knew or should have known that the defendants . . . would be named" (emphasis added)); Arias-Agramonte v. Commissioner of INS, No. 00 Civ. 2412 (RWS), 2000 U.S. Dist. LEXIS 15716, 2000 WL 1617999, at *2-*3 (S.D.N.Y. Oct. 30, 2000) (finding that United States Attorney General Janet Reno had constructive notice of immigration petitioner's habeas suit where the same Assistant United States Attorney acted as counsel for both named defendant (the INS Commissioner) and Reno); Noguera, 2000 WL 1011563 at *15 (permitting relation back because warden's "attorney is the same as that of the other defendants . . . and thus notice may be imputed"); Byrd, 964 F. Supp. at 146 ("Notice of a lawsuit can be imputed to a new defendant state official through his attorney, when the attorney also represents the officials originally sued.").
Here, the U.S. Attorney's Office received notice of Vasquez's action when he served a copy of the summons and complaint on the U.S. Attorney's Office via certified mail on September 2, 2005 and October 21, 2005. The U.S. Attorney's Office and defendant Mauro, on whose behalf the service was accepted, do not challenge the sufficiency of this process. (Defs.' Mot. 13 n. 4.) Given the allegations in the Complaint and the Complaint's pro se nature, the U.S. Attorney's Office knew or should have known that Vasquez intended to name his arresting officers. "Their omission from the original complaint was more likely due to plaintiff's unfamiliarity with the causes of action available to him and his lack of knowledge of the identity of the persons he alleges were responsible." Hodge v. Ruperto, 739 F. Supp. 873, 881 (S.D.N.Y. 1990); see also Byrd, 964 F. Supp. at 146-47 (finding that the identity of unnamed housing officer-defendant was "uniquely accessible to Corporation Counsel"). Because the U.S. Attorney's Office received the Complaint within the limitations period (i.e., before October 31, 2005), Vasquez has provided constructive notice to the arresting officers, and the arresting officers will not suffer any prejudice if they are added to the Complaint because their counsel, the U.S. Attorney's Office, has already appeared on behalf of the defendants named in the original Complaint. See Howard v. City of New York, 2006 U.S. Dist. LEXIS 63426 (S.D.N.Y. 2006) (finding no prejudice where amended complaint substituted police commissioner for institutional defendant because city's counsel had already appeared on behalf of the institutional defendant); Allen v. AMTRAK, 2004 U.S. Dist. LEXIS 24846 (E.D. Pa. 2004) ("[B]ecause the prejudice element of the Rule 15(c)(3)(A) analysis is dependent upon, rather than independent of, the notice requirement, notice of the matters raised in the amended pleading within the applicable time limit generally eliminates the prejudice a party may experience."). The Court therefore finds that Vasquez has satisfied the notice requirement of Rule 15(c)(3)(A).
In fact, the U.S. Attorney's Office has been aware of the nature of Vasquez's claims for much longer, as evidenced by the fact that the U.S. Attorney's Office prepared the defendants' first motion to dismiss for insufficiency of service, which quoted from the Complaint. ( See Defs.' Mot., Nov. 19, 2004, at 2-3.)
Accordingly, the Court finds that the amended complaint satisfies the requirements of Rule 15(c)(3) and therefore relates back to the original Complaint filed on May 29, 2003.
iii. Identity of Arresting Officers
Vasquez has filed a Rule 26 motion for discovery of his arresting officers' names. The Second Circuit has "recognized that the district court has a duty to assist pro se plaintiffs in ascertaining the identities of the defendants, particularly where . . . the plaintiff is incarcerated and cannot carry out a full pretrial investigation." Robinson v. Matos, No. 97 Civ. 7144 (TPG), 1999 U.S. Dist. LEXIS 5447 (S.D.N.Y. Apr. 16, 1999) (citing Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997) (holding that "the district court may pursue any course that it deems appropriate to a further inquiry into the identity of [defendant]," id. at 76.)). The Court notes that the identity of the arresting officers is uniquely within the knowledge of the U.S. Attorney's Office. Accordingly, the Court directs the U.S. Attorney's Office to identify the officers who arrested Vasquez on February 19, 2002, and to provide him, within 30 days of this Memorandum and Order, with each officer's name and last known address. See Flemming v. Velardi, No. 02 Civ. 4113 (AKH), 2003 U.S. Dist. LEXIS 13078, 2003 WL 21756108, at *4 (S.D.N.Y. July 30, 2003) (construing letter and motion for summary judgment from pro se prisoner-plaintiff as leave to amend complaint and request for discovery of ten unnamed defendant police officers' identities, and directing government attorney to provide plaintiff within 30 days of order the name and last known address for plaintiff's arresting officers); London v. Watkins, No. 99 Civ. 2769, 2000 U.S. Dist. LEXIS 7514, 2000 WL 713088, at *1 (S.D.N.Y. June 2, 2000) (Ellis, M.J.) (ordering city's Corporation Counsel to identify full names, shield numbers, and addresses of corrections officers who allegedly assaulted pro se prisoner).
2. Plaintiff's Request for Counsel
As the Court is permitting Vasquez to proceed with this lawsuit, the Court must address his request for counsel. On January 30, 2006, Vasquez submitted an application for the Court to request counsel to represent him, explaining that he is indigent, does not speak English, is "not very educated," and is a "layman in the law."
In deciding whether counsel should be appointed pursuant to 28 U.S.C. § 1915(d), "a district court exercises substantial 'discretion,' subject to the requirement that it be 'guided by sound legal principle.'" Cooper v. A. Sargenti Co., 877 F.2d 170, 171-72 (2d Cir. 1989) (quoting Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983)). The standard for determining whether counsel should be appointed for an indigent plaintiff was addressed by the Second Circuit in Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986).
The district judge should first determine whether the indigent's position seems likely to be of substance. If the claim meets this threshold requirement, the court should then consider the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be then major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.
These factors are not exclusive, and need not control the court's decision in every case.Id. at 62.
The court has reviewed Vasquez's claims and cannot at this time say whether they are likely to be of substance. The court thus does not consider the other factors. The motion for appointment of counsel is denied. The court will reconsider the motion on renewal as the case progresses.
CONCLUSION
For the reasons set forth above, the Court grants defendants' motion to dismiss [22] all claims against defendants P. Mill, Gregory Balderacchi, Philip Goode, Christopher Healy, and Michael Mauro. The Court further directs the U.S. Attorney's Office to provide Vasquez with the names and last-known addresses of his arresting officers within 30 days of this Order.If Vasquez chooses to amend his complaint, he must mail his amended complaint to the Pro Se Office of this Court at 500 Pearl Street, Room 230, New York, New York 10007, no later than 60 days after receiving the names from the U.S. Attorney's Office. For the reasons noted above, the amended complaint satisfies the requirements of Rule 15(c)(3) and therefore relates back to the original Complaint filed on May 29, 2003. The Pro Se Office will then issue a summons and send to Vasquez [Jose Vasquez, 52494-054, USP Beaumont, U.S. Penitentiary, P.O. Box 26030, Beaumont, TX 77720] a sufficient number of summons and any other paperwork necessary to effect service. Vasquez must serve the summons and amended complaint on the new defendants within 120 days after the issuance of the summons. See Fed.R.Civ.P. 4(m). Because Vasquez is proceeding in forma pauperis, the U.S. Marshals Service will effect service on his behalf and at no cost to the Vasquez, provided he follows the instructions given him by the Pro Se Office. Fed.R.Civ.P. 4(c). If Vasquez would like further assistance, he may contact the Pro Se Office of this Court at 500 Pearl Street, Room 230, New York, New York 10007, telephone (212) 805-0175, where Spanish-speaking assistance is available. If Vasquez fails to abide by either of the above deadlines, his case will be dismissed without prejudice to re-plead, noting, however, that the statute of limitations on his Bivens claim has expired and any re-filed action will be timebarred.
SO ORDERED.