The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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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