Opinion

Redd v. County Of Nassau

Court
District Court, E.D. New York
Filed
Jan 29, 2020
Cited by
0 cases
Authority
More cited than 26.5%

The opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

------ XxX

LORENZO REDD,

Plaintiff,

MEMORANDUM & ORDER

-against- 14-CV-1028 (JS) (SIL)

COUNTY OF NASSAU, ARMOR CORR. HEALTH,

INC., NASSAU COUNTY CORRECTIONAL

FACILITY, CPL. MCMILLAN, CPL RHODES,

MICHAEL J. SPOSATO, SHERIFF,

Defendants.

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APPEARANCES

For Plaintiff: Lorenzo Redd

15-A-3881

Fishkill Correctional Facility

Box 1245

Beacon, New York 12508

Jodi L. Morales, Esq.!

The Law Office of Jodi Morales

888 Grand Concourse, Suite 1H

Bronx, New York 10451

For Defendant

Armor Corr.

Health Inc.: John J. Doody, Esq.

Dale Nicholson McLaren, Esq.

Lewis, Brisbois, Bisgaard & Smith LLP

77 Water Street, 21st Floor

New York, New York 10005

For the Nassau

County Defendants: James R. Scott, Esq.

Pablo A. Fernandez, Esq.

Nassau County Attorney’s Office

1 West Street

Mineola, New York 11501

1 Jodi L. Morales, Esq. appeared after Plaintiff filed his

objections. (D.E. 222.) The Court thus treats Plaintiff as a

pro se litigant for purposes of this Order.

SEYBERT, District Judge:

Plaintiff initiated this action on February 11, 2014

(Compl., D.E. 1) and thereafter filed three amended complaints

dated February 26, 2015 (First Am. Compl., D.E. 44), February 28,

2015 (Second Am. Compl., D.E. 45), and June 11, 20152 (Third Am.

Compl., D.E. 81).

On November 23, 2015, Plaintiff sought to file a fourth

amended complaint. (Nov. 30, 2015 Mot., D.E. 105.) On July 30,

2015, the motion was referred to then-Magistrate Judge Gary R.

Brown. ? (Referral, D.E. 92.) On February 22, 2016, Judge Brown

issued a report and recommendation (“R&R”) recommending, among

other things, that the Court deny Plaintiff’s request to file a

fourth amended complaint. (Feb. 22, 2016 R&R, D.E. 107.) On

August 31, 2016, Judge Joseph F. Bianco (who previously presided

over this matter) declined to adopt Judge Brown’s R&R and granted

Plaintiff leave to file a fourth amended complaint. (Aug. 31,

2016 Order, D.E. 115, at 8-9.)

2 The third Amended Complaint is the operative complaint and

asserts claims against Armor Corr. Health, Inc. (“Armor”) and

the “Nassau County Defendants,” the County of Nassau, Nassau

County Correctional Facility, Cpl. McMillan, Cpl. Rhodes, and

Sheriff Michal J. Sposato (the “Nassau County Defendants” and

together with Armor, “Defendants”). (D.E. 81.)

3 Judge Brown has since been confirmed as a District Court Judge

for the Eastern District of New York.

Plaintiff did not file a fourth amended complaint.

However, one year later, on September 7, 2017, Plaintiff filed a

“Notice of Supplemental Claim to Original Complaint.” (Supp.

Claim, D.E. 139.) On Sept. 14, 2018 Judge Bianco granted

Defendants’ motions to strike the notice as procedurally improper

and stated that “[a]t this juncture of the case, plaintiff must be

granted leave to make any amendments to his complaint under Rule

15 of the Federal Rules of Civil Procedure.” (Sept. 14, 2018

Order, D.E. 157, at 1) (emphasis added).

Following a telephone conference between the parties,

Judge Brown issued a scheduling order indicating that the parties

were to add new parties or to amend the pleadings by April 23,

2019. (Mar. 7, 2019 Order, D.E. 186.) By letter dated April 17,

2019, Plaintiff requested leave to file a fourth amended complaint.

(2019 Mot. to Amend, D.E. 191.) From what the Court can parse,

Plaintiff seeks to assert additional claims arising out of

incidents that occurred on January 18, 2014 and July 1, 2014.’

(See generally 2019 Mot. to Amend; Pl. Reply, D.E. 201; Pl. Obj.,

* In his objections, Plaintiff seeks to amend his Complaint to

assert “wrongs he complains of [that] occurred within the

calendar [ylear” 2014 and specifically “wrongs” arising out of

events that occurred on January 18, 2014 and July 1, 2014. (Pl.

Obj. FI 5.) The Nassau County Defendants note that Plaintiff may

also seek to assert claims arising out of incidents that

occurred on February 9, 2014 and January 10, 2015. (Nassau

Defs. Opp., D.E. 196, at 1.) Accordingly, to the extent they

are alleged, these claims are included in the Court’s analysis.

D.E. 223, ¶ 5.) On October 8, 2019, the Court referred the motion

to Judge Brown for decision. (See Oct. 8, 2019 Elec. Order.) On

October 10, 2019, Judge Brown issued an Electronic R&R

recommending that the Court deny Plaintiff’s application to file

a fourth amended complaint as barred by the statute of limitations.

(Oct. 10, 2019 Elec. R&R (citing Armor Opp., D.E. 192; Nassau Defs.

Opp., D.E. 196)).

Plaintiff filed objections to the R&R on

December 2, 2019. (See Pl. Obj.) Plaintiff primarily objects on

the ground that “law office failure” prevented him from timely

asserting his proposed amendments and “constitutes grounds for

equitably tolling his failure to properly amend his Complaint

within the appropriate time provisions by law.” (Pl. Obj. ¶¶ 9,

4-8, 12-14.) In reply, Defendants reassert their arguments made

in opposition to Plaintiff’s motion to amend. (See Armor Reply,

D.E. 224; Nassau Defs. Reply, D.E.225.)

A “district judge must determine de novo any part of the

magistrate judge’s disposition that has been properly objected to.

The district judge may accept, reject, or modify the recommended

disposition; receive further evidence; or return the matter to the

magistrate judge with instructions.” FED. R. CIV. P. 72(b)(3).

“The objections of parties appearing pro se are ‘generally accorded

leniency’ and should be construed ‘to raise the strongest arguments

that they suggest.’” Brown v. Smith, No. 09-CV-4522, 2012 WL

511581, at *2 (E.D.N.Y. Feb. 15, 2012) (quoting Milano v. Astrue,

No. 05–CV–6527, 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008)).

Plaintiff’s arguments asserted here were not raised

before Judge Brown and are therefore not properly before this Court

for consideration. “[E]ven in a de novo review of a party’s

specific objections, the court will not consider ‘arguments, case

law and/or evidentiary material which could have been, but [were]

not, presented to the magistrate judge in the first instance.’”

Brown, 2012 WL 511581, at *1 (quoting Kennedy v. Adamo, No. 02–

CV–1776, 2006 WL 3704784, at *1 (E.D.N.Y. Sept. 1, 2006)). On

this basis alone, the Court overrules Plaintiff’s objections.

Kennedy, 2006 WL 3704784, at *3 (collecting cases).

Nonetheless, in light of Plaintiff’s pro se status, the

Court considers Plaintiff’s objections. The “court should freely

give leave [to amend] when justice so requires.” FED. R. CIV. P.

15(a)(2). “[I]t is within the sound discretion of the district

court to grant or deny leave to amend,” and a “district court has

discretion to deny leave for good reason, including futility, bad

faith, undue delay, or undue prejudice to the opposing party.”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007) (citations omitted). However, “a futile request to replead

should be denied.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.

2000) (citation omitted). “An amendment to a pleading is futile

if the proposed claim could not withstand a motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6).” Lucente v. Int’l Bus.

Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citation

omitted). Moreover, while amendments to pro se complaints should

be granted “fairly freely,” even pro se litigants are not entitled

to unlimited opportunities to amend their pleadings. Holmes v.

Goldin, 615 F.2d 83, 85 (2d Cir. 1980) (citation omitted); Best v.

City of N.Y., No. 12-CV-7874, 2014 WL 163899, at *3 (S.D.N.Y.

Jan. 15, 2014) (noting that plaintiff, who had already amended his

pleadings twice, had “been given ample opportunity to amend his

pleadings” and that “the Court can only afford him so many bites

at the apple”).

The Court adopts Judge Brown’s R&R and agrees with the

reasoning set forth in Defendants’ letter oppositions. (See Oct.

20, 2019 Elec. R&R; Armor Opp.; Nassau Defs. Opp.) The applicable

statute of limitations for Plaintiff’s section 1983 and state law

claims is three years. James v. Suffolk Cty. Corr. Facility, No.

13-CV-2344, 2018 WL 3966688, at *6 (E.D.N.Y. June 26, 2018), R&R

adopted, 2018 WL 3966241 (E.D.N.Y. Aug. 17, 2018) (collecting

cases); N.Y. C.P.L.R. § 214 (three-year statute of limitations for

assault and battery, negligent infliction of emotional distress,

and conversion). Here, the limitations period with respect to

claims arising out of events that occurred on January 18, 2014,

February 9, 2014, July 1, 2014, and January 10, 2015 expired three-

years later on January 18, 2017, February 9, 2017, July 1, 2017,

and January 10, 2018, respectively. Plaintiff requested to amend

his complaint on April 19, 2019, more than one year after the

latest applicable statutes of limitations expired. (See 2019 Mot.

to Amend.) Thus, the proposed amendments are barred by the statute

of limitations and it would be futile to grant Plaintiff a fourth

opportunity to amend his Complaint. Chavez v. Wylie, No. 18-CV-

7965, 2019 WL 6873806, at *5 (S.D.N.Y. Dec. 17, 2019); Lastra v.

Barnes & Noble Bookstore, No. 11-CV-2173, 2012 WL 12876, at *9

(S.D.N.Y. Jan. 3, 2012) (pro se plaintiffs are not entitled to

file an amended complaint if the complaint “contains substantive

problems such that an amended pleading would be futile”).

Plaintiff does not appear to contest that the applicable

statute of limitations bars his proposed amendments. (See, e.g.,

Pl. Obj. 12-13.) Rather, as stated above, Plaintiff argues

that “‘law office failure’ constitutes grounds for” equitably

tolling the statute of limitations. (Pl. Obj. □□ 9, 4-8, 12-14.)°

First, the Court declines to excuse Plaintiff’s belated request to

amend his complaint due to “law office failure.” Plaintiff has

° Plaintiff also appears to argue that the statute of limitations

does not bar his amendments because they relate back to the

original Complaint. (Pl. Obj. TT 10-11). Even under a liberal

reading of Plaintiff’s objections, the Court cannot decipher the

basis for his claim that his proposed amendments relate back to

the original Complaint under Federal Rule of Civil Procedure 15.

In any event, for the reasons stated supra, the Court declines

to address this argument because it was not raised before Judge

Brown.

been generously afforded three opportunities to assert any and all

claims related to his medical treatment. (See, e.g., Apr. 28,

2015 Order, D.E. 71.) Further, Plaintiff personally drafted and

filed many letters, as well as three amended complaints, after the

dates of the incidents that now form the basis of his proposed

amendments. Moreover, Plaintiff left Nassau County Corrections

Facility custody on September 24, 2015* and therefore knew, or had

reason to know, of additional claims arising out of his time there

on that date, at the earliest, and September 24, 2018, three years

later, at the latest. (See Armor Opp. at 2.) Thus, Plaintiff’s

argument that his prior pro bono counsel somehow prevented

Plaintiff from asserting these claims is without merit. Johnson

v. Nyack Hosp., 86 F.3d 8, 12 (2d Cir. 1996) (noting that the

Second Circuit “has applied the doctrine as a matter of fairness

where a plaintiff has been prevented in some extraordinary way

from exercising his rights, or has asserted his rights in the wrong

forum.” (emphasis added)).

Second, the Court denies Plaintiff’s request to consider

whether “law office failure” constitutes grounds for equitable

tolling. It is Plaintiff’s “burden to show that he qualifies for

equitable tolling [ ] and the record before me, and before the

Magistrate Judge, simply lacks evidence that Plaintiff” was

6 Indeed, Plaintiff’s first pro bono counsel appeared one year

later, on September 28, 2016. (See, D.E. 118.)

prevented from timely filing his request to amend the Third Amended

Complaint. Brown v. Martuscello, No. 16-CV-6084, 2019 WL 3491461,

at *2 (S.D.N.Y. Aug. 1, 2019).

CONCLUSION

For the foregoing reasons, Plaintiff’s objections are

OVERRULED and Judge Brown’s R&R (Oct. 10, 2019 Elec. R&R) is

ADOPTED in full. Plaintiff’s request for leave to file a fourth

amended complaint (D.E. 191) is DENIED. The Third Amended

Complaint will serve as the operative complaint. The Clerk of the

Court is directed to mail a copy of this Order to Plaintiff.

SO ORDERED.

/s/ JOANNA SEYBERT______

Joanna Seybert, U.S.D.J.

Dated: January 29 , 2020

Central Islip, New York

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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