# Pierre v. Nassau County

> District Court, E.D. New York · July 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10308260

## Case

- **Court:** District Court, E.D. New York
- **Decided:** July 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10308260

## How later opinions describe it (automated extraction)

- describing conditions in which relation back is permitted

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________

No 17-CV-6629 (LDH) (RER)
_____________________

RODNEY ROBERT PIERRE,

Plaintiff,

VERSUS

COUNTY OF NASSAU, ET AL.,

Defendants,
___________________

MEMORANDUM AND ORDER

July 21, 2022
___________________

RAMON E. REYES, JR., U.S.M.J.:
Rodney Robert Pierre (“Pierre” or “Plaintiff”), proceeding pro se, brings this civil rights action
against the County of Nassau, the Nassau County Police Department, Nassau County Jail Sheriffs,
Nassau County Jail/Superintendent, Nassau County Corrections Sergeant Drake, (collectively, the
“County”), the Elmont Police Department, the Town of Elmont, and various John and Jane Doe
Defendants1 asserting claims for deprivation of his constitutional rights pursuant to 42 U.S.C.
§ 1983 and the New York State Constitution. (ECF No. 1 (“Compl.”)). Plaintiff now moves to
amend his complaint “to correct and submit a specific and accurate complaint,” to substitute
several John Doe Defendants and add additional defendants as named parties, and to add new

1 Plaintiff’s original complaint specifically names: John Doe 1–20 Elmont Police Department, Jane Doe Nassau
County Sheriff, John Doe 1–10 and Jane Doe Nassau County Medical Center Hospital Nurses and Doctors, John/Jane
Doe Sheriff of Police Elmont Police Department, John Doe, Jane Doe, Nassau County Jail/Superintendent, Sergeant
Drake, John Doe 1–10 Correctional Center, and John Doe/Jane Doe 1–10 Elmont Police Department.
claims regarding additional constitutional violations near the time of his arrest and more recent
retaliatory conduct. (ECF No. 52 (“Mot. to Amend”) at 3, 8–12). Plaintiff separately moves to
compel discovery and for sanctions against the County for alleged discovery deficiencies. (ECF
No. 53 (“Mot. for Discovery & Sanctions”).

For the reasons set forth below, Plaintiff’s motion to amend the complaint is granted in part,
and denied in part.2 Plaintiff’s motion for discovery and sanctions is denied in its entirety.
BACKGROUND
I. Facts3
On or about October 18, 2014, police officers pulled over a taxi in Elmont, New York and
asked that Plaintiff step out of the vehicle. (Compl. at 3; ECF No. 17 (“Pl’s Am. Facts”) at 3).

2 “A magistrate judge’s grant of a motion to amend a complaint is generally considered non-dispositive.” Gordon v.
Tencent Music Entertainment Grp., No. 19-CV-5465 (LDH) (TAM), 2021 WL 6113263, at *4 n.5 (E.D.N.Y. Dec.
27, 2021) (citing Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury, New York, No. 08-CV-5081 (DRH)
(ARL), 2021 WL 4472852, at *8–9 (E.D.N.Y. Sept. 30, 2021); Prosper v. Thomson Reuters Inc., No. 18-CV-2890
(MKV) (OTW), 2021 WL 535728, at *1 n.1 (S.D.N.Y. Feb. 11, 2021)).

3 The following facts are derived from Plaintiff’s original complaint and Plaintiff’s statement of “Amended Facts
Pursuant to Court Order.” (Compl.; ECF No. 17 (“Pl’s Am. Facts”)). Pursuant to the Court’s order conditionally
granting Plaintiff leave to proceed in forma pauperis provided that Plaintiff could “demonstrate[e] that his claims
pertaining to any event prior to his incarceration . . . should not be dismissed as barred by the statute of limitations”
(ECF No. 9 at 3, 6–7), Plaintiff submitted a letter to the Court indicating that his complaint was timely filed pursuant
to the prison mailbox rule (ECF No. 11 at 1, 3) and a letter providing a statement of “Amended Facts Pursuant to
Court Order” containing additional factual allegations underlying his complaint. (Pl’s Am. Facts at 3–6).

Although Plaintiff did not formally seek leave to amend his pleading, his “Amended Facts” were mailed to the Court
within 21 days of service (see ECF No. 15 (indicating service on July 17, 2018); Pl’s Am. Facts at 7 (indicating that
a copy was mailed to the Court on July 19, 2018)), and may be deemed an amendment as a matter of course. Fed. R.
Civ. P. 15(a)(1)(A); see also Javier v. Russo, No. 21-CV-7097 (LTS), 2022 WL 254207, at *1 (S.D.N.Y. Jan. 25,
2022) (applying prison mailbox rule to amended pleadings). Further, the “Amended Facts” were accepted as true by
the County in its motion to dismiss (ECF No. 33-2), and by the Court in denying the motion to dismiss (ECF No. 35
at 1 n.2, 4–5) and plaintiff’s motion for appointment of counsel (ECF No. 41 at 2–3).

Accordingly, the Court considers Plaintiff’s complaint to have been effectively amended by his statement of
“Amended Facts,” rendering the motion now before the Court a motion for a second amended complaint. See, e.g.,
Perez v. Ponte, 236 F. Supp. 3d 590, 633 (E.D.N.Y. 2017), adopted by, 2017 WL 1050109 (E.D.N.Y. Mar. 15, 2017)
(noting that the court “compared the allegations in [p]laintiff’s proposed amended complaint against those stated in
his original complaint as amplified by his opposition papers,” and concluding that “the court has already effectively
considered these additional facts in adjudicating [d]efendant’s motion to dismiss.”).
When Plaintiff reached for his phone to call his lawyer and question the stop, “more than twenty
(20) officers,” including “Arresting Police officers McJacobs, Sandy, and Griffin,” (the “Alleged
Arresting Officers”) physically and verbally attacked Plaintiff “for approximately one hour.”
(Compl. at 3; Pl’s Am. Facts at 3).
After the attack, the Alleged Arresting Officers transported Plaintiff to a hospital,4 where they

continued to threaten Plaintiff and instructed certain John/Jane Doe nurses and doctors to deny
Plaintiff medical treatment, including his requests that they x-ray his back and stitch wounds on
his left hand. (Compl. at 2–3; Pl’s Am. Facts at 3–4). As a result of their failure to treat his injuries,
Plaintiff alleged that he “still ha[s] multiple problems dealing with [his] back and pain in [his]
shoulder” (Compl. at 3) and has “permanent scaring of [his] left hand and left ear” (Pl’s Am. Facts
at 3). Plaintiff also alleges that, at the hospital, “officer Sandy stole [Plaintiff’s] diamond studded
watch with a value of seven thousand dollars.” (Pl’s Am. Facts at 3).
After the hospital, Plaintiff was brought to Nassau County Jail, where he “was ma[c]ed,
attack[ed], sexually assaulted and thrown in the box.” (Compl. at 3). The Alleged Arresting

Officers reportedly “told medical staff” at the jail “not to give [Plaintiff] his mental health
medication” (Pl’s Am. Facts at 4), and jail personnel “denied [Plaintiff his] mental health
medication before [he] went to court” (Compl. at 3). When Plaintiff told Corrections Sergeant
Drake that he would inform his lawyer that he was “not receiving proper mental medication,”
Drake ordered other officers to “teach [him] a lesson” and to attack Plaintiff. (Compl. at 3; Pl’s
Am. Facts at 4). Plaintiff’s statement of Amended Facts described a number of retaliatory attacks
in detail, including an attack by “a white supremacist” who “splashed urine on” Plaintiff; an attack

4 The hospital is referred to as “NUMC Hospital” in the original complaint (Compl. at 2–3) as “Nassau County Medical
Center” or “NCMC” in the statement of amended facts, (Pl’s Am. Facts at 3), and as “NUMC Nassau Medical Center”
in the proposed amended complaint (Mot. to Amend at 8).
by “one black correctional officer and two (2) white correctional officers and one corporal from
the reception cell blocks” who had “sprayed four cans of mace on claimant in approximately 30
minutes”; and, following the mace attack, an instance in which correctional officers forced Plaintiff
“to shower with dirty soap that was left from other inmates” in the facility’s special housing unit.

(Pl’s Am. Facts at 4–5).
After continued harassment and mistreatment in the special housing unit, including death
threats by an unnamed correctional officer following Plaintiff’s refusal to sign a disciplinary ticket,
Plaintiff relayed his allegations to Sergeant Anderson of the Nassau County Jail, who subsequently
“set up an interview” with the Inspector General’s office. (Compl. at 4; Pl’s Am. Facts at 5). On
or about November 26, 2014, Plaintiff reports filing grievances with two officials from the
Inspector General’s office regarding his allegations of assault, sexual assault, and denial of medical
attention. (Compl. at 4; Pl’s Am. Facts at 5–6). During that interview, Plaintiff was advised to
speak quietly so that eavesdropping corrections officers could not hear his complaints. (Pl’s Am.
Facts at 6). Further, Plaintiff alleges that a “correctional officer by the name of Christintine and

other Defendants used intimidation during the IG investigation.” (Pl’s Am. Facts at 6).
Plaintiff reports that despite the Inspector General’s office “promise[] to have [Plaintiff;
removed from [the special housing unit] and press charges against these officer, this never took
place[.]” (Pl’s Am. Facts at 6). With no additional response from the Inspector General’s office,
Plaintiff reported his concerns to the Governor of New York. (Compl. at 4). Sometime in 2017, in
response to his letter to the Governor, Plaintiff received a call from the Nassau County Sheriff’s
office about his allegations. (Compl. at 4).
Taking these incidents together, Plaintiff alleged that he suffered “shoulder injuries, back
injuries, scare [sic] on left hand, denial of medical attention, [and a] PREA violation of correction
officers.” (Compl. at 3). As a result of these violations of his constitutional rights, Plaintiff seeks
“30 million dollars for pain and suffering, mental anguish, cost of future medical fees, [the cost of
an] operation on [his] back and shoulder and future physical therapy, [and] personal humiliation.”
(Compl. at 5).

II. Procedural History
Plaintiff’s complaint was filed November 8, 2017. (Compl.). After Judge Azrack conditionally
approved Plaintiff’s application to proceed in forma pauperis (ECF No. 9), and after Plaintiff
submitted a letter containing his statement of Amended Facts (Pl’s Am. Facts), the Court granted
the County leave to file a motion to dismiss for failure to state a claim (Order dated 02/08/2019;
see also ECF Nos. 31–33), and subsequently denied the motion (ECF No. 35). This Court then set
a schedule for discovery and directed Plaintiff to file a new motion to appoint counsel. (Minute
Entry dated 10/07/2020; see also ECF No. 39). The Court denied Plaintiff’s motion on March 19,
2021. (ECF No. 41). Following a number of discovery extensions (see Order dated 03/10/2021;

Order dated 03/31/2021), the Court advised the parties at a telephone conference that paper
discovery was considered largely complete and ordered the parties to complete all depositions
before July 1, 2021. (Minute Entry dated 06/02/2021). Soon after the telephone conference,
Plaintiff filed the motions now before the Court. (Mot. to Amend; Mot. for Discovery &
Sanctions).5

5 Plaintiff’s Motion to Amend appears to contain two proposed amended complaints. First, a document captioned
“Rodney Robert Pierre . . . versus the County of Nassau, etc.” which lists seventeen numbered paragraphs (Mot. to
Amend at 5–7; see also ECF No. 49 (listing sixteen of the seventeen numbered paragraphs)), and second, a document
labelled “AMENDED COMPLAINT” which lists all the named defendants and seeks to “add on” additional
defendants. (Mot. to Amend at 8–12). For the purposes of this motion, the Court considers the document labelled
“AMENDED COMPLAINT” to be Plaintiff’s proposed amended complaint.
Construed liberally,6 Plaintiff’s motion to amend seeks to (1) substitute seven John Doe
Defendants with named defendants or defendants with more specific descriptions, and add new
parties from the Inspector General’s office; (2) add new claims regarding additional constitutional
violations near the time of his arrest and more recent retaliatory conduct; and, (3) clarify certain

factual allegations concerning the existing defendants regarding his initial complaint. (Mot. to
Amend at 8–12). Plaintiff’s motion for discovery and sanctions requests that the Court compel the
County to produce video footage or photographs of the incidents referenced in his complaint, and
sanction the County for its failure to preserve and produce such footage. (Mot. for Discovery &
Sanctions at 1–3). The County opposes both motions. (ECF No. 54 (“Def’s First Opp.”); ECF No.
59 (“Def’s Second Opp.”)).

DISCUSSION
I. Motion to Amend
Under Federal Rule of Civil Procedure 15, which generally governs motions to amend
pleadings,7 “[i]t is ‘within the sound discretion of the district court to grant or deny leave to

6 “A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by lawyers.’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir.
2004) (“[A] court is obliged to construe [pro se] pleadings liberally, particularly when they allege civil rights
violations.”). “However, the duty to liberally construe a plaintiff’s complaint is not the equivalent of a duty to re-write
it.” Mills v. Miteq, Inc., No. 06-CV-752 (SJF) (AKT), 2007 WL 2908218, at *3 (E.D.N.Y. Sept. 14, 2007) (citing
Joyner v. Greiner, 195 F.Supp.2d 500, 503 (S.D.N.Y.2002)), adopted by 2007 WL 2932816 (Oct. 3, 2007); see also
Jing v. Mayorkas, No. 21-CV-4880 (WFK), 2022 WL 2154543, at *2 (E.D.N.Y. June 14, 2022) (“[T]he Court need
not argue a pro se litigant’s case nor create a case for the pro se which does not exist.”) (internal quotation marks
omitted).

7 “[W]here . . . a motion to amend is filed after a deadline set by the Court in [a] Case Management and Scheduling
Order, the motion is subject to the more demanding standard of Rule 16(b), which requires ‘good cause’ for leave to
amend.” CSX Transportation, Inc. v. Emjay Env’t Recycling, Ltd., No. 12-CV-1865 (JS) (AKT), 2013 WL 12329546,
at *2 (E.D.N.Y. Sept. 18, 2013) (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000);
Ricciardi v. Kimco Facilities Servs. Corp., No. 10-CV-5731, 2012 WL 6761533, at *1 (E.D.N.Y. June 12, 2012)
adopted by 2013 WL 42416 (Jan. 3, 2013); Alexander v. Westbury Union Free Sch. Dist., 829 F. Supp. 2d 89, 117
(E.D.N.Y. 2011); Sokol Holdings, Inc., v. BMB Munai, Inc., 05 Civ. 3749, 2009 WL 2524611, at *7 (S.D.N.Y. Aug.
14, 2009)). However, where, as here, such a deadline is not set, a “plaintiff does not have to meet the ‘good cause’
amend.’” Hart v. Suffolk Cnty., No. 17-CV-5067 (JS) (SIL), 2020 WL 4738243, at *2 (E.D.N.Y.
Aug. 15, 2020) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)).
“Motions to add parties are governed by Fed. R. Civ. P. 21 and are afforded the ‘same standard of
liberality afforded to motions to amend pleadings under Rule 15.’” Essani v. Earley, No. 13-CV-

3424 (JMA) (SIL), 2018 WL 3785109, at *4 (E.D.N.Y. Aug. 9, 2018) (quoting Addison v. Reitman
Blacktop, Inc., 283 F.R.D. 74, 79 (E.D.N.Y. 2011)), adopted by, 2018 WL 4100483 (Aug. 28,
2018); see also Amaya v. Roadhouse Brick Oven Pizza, Inc., 285 F.R.D. 251, 253 (E.D.N.Y. 2012)
(“There is . . . little practical difference between Rule 15 and Rule 21 since they both leave the
decision whether to permit or deny an amendment to the district court’s discretion.”).
In general, courts should “freely give leave [to amend] when justice so requires.” Fed. R. Civ.
P. 15(a)(2). Accordingly, “[u]nless there is a showing of bad faith, undue delay, futility or undue
prejudice to the non-moving parties, the district court should grant leave to amend.” Ghaly v.
Nissan Motor Acceptance Corp., No. 21-CV-1613 (JS) (JMW), 2021 WL 2550389, at *1
(E.D.N.Y. June 22, 2021) (quoting Adlife Mktg. & Commc’ns Co. v. Best Yet Mkt., Inc., No. 17-

CV-02987 (ADS) (ARL) 2018 WL 4568801, at *1 (E.D.N.Y. Sept. 24, 2018)); see also Foman v.
Davis, 371 U.S. 178, 182 (1962) (absent “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 . . . [or] futility of [the] amendment” leave to amend “should, as
the rules require, be freely given.”). “The party opposing the motion for leave to amend has the
burden of establishing that an amendment would be prejudicial.” Fahlund v. Nassau Cnty., 265 F.
Supp. 3d 247, 253 (E.D.N.Y. 2017) (quoting Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y.
1994)).

standard.” Smith v. Westchester Cnty. Dep’t of Corr., No. 07 Civ. 1803 (SAS), 2012 WL 527222, at *6 (S.D.N.Y.
Feb. 15, 2012), aff’d sub nom. Smith v. Gottlob, 518 F. App’x 41 (2d Cir. 2013).
Pro se plaintiffs are typically “given the opportunity ‘to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be stated’” Belfer v. Fid.
Nat’l Title Grp., No. 18-CV-783 (JMA) (ARL), 2018 WL 6002905, at *4 (E.D.N.Y. Nov. 15,
2018) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir. 2009)), and “a pro se

plaintiff’s proposed amended complaint should be construed to raise the strongest arguments it
suggests.” Ghaly, 2021 WL 2550389, at *1 (quoting Grullon v. City of New Haven, 720 F.3d 133,
140 (2d Cir. 2013)). However, “while ‘pro se plaintiffs are generally given leave to amend a
deficient complaint, a district court may deny leave to amend when amendment would be futile.’”
Belfer, 2018 WL 6002905, at *4 (quoting Shomo v, 579 F.3d at 183)).
Courts typically consider amendment futile “if the proposed claim would fail to state a claim
under Federal Rule of Civil Procedure 12(b)(6).” Wilson v. City of New York, No. 18 CV 7301
(AMD) (LB), 2019 WL 4248470, at *1 (E.D.N.Y. July 11, 2019), (citing Panther Partners Inc. v.
Ikanos Commc’ns, Inc., 681 F.3d 114, 119 (2d Cir. 2012); Dougherty v. Town of N. Hempstead
Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)), adopted by, 2019 WL 4247542 (Sept. 6,

2019). A court may deny leave to amend as futile where the proposed amended claims are time-
barred. See, e.g., 421-A Tenants Ass’n, Inc. v. 125 Ct. St. LLC, 760 F. App’x 44, 51 (2d Cir. 2019)
(affirming denial of motion for leave to amend where proposed amendments did not change the
fact that claims were barred by the statute of limitations); Anderson v. Inc. Vill. of Hempstead, No.
15-CV-1485 (JS) (SIL), 2020 WL 999856, at *2 (E.D.N.Y. Mar. 2, 2020) (quoting Northbrook
Nat. Ins. Co. v. J & R. Vending Corp., 167 F.R.D. 643, 647–48 (E.D.N.Y. 1996) (“A motion to
amend the complaint is futile if the claims sought to be added are barred by the relevant statute of
limitations.”). Accordingly, where, as here, a plaintiff seeks to amend the complaint to amend the
complaint after the statute of limitations has expired,8 the amendments must relate back to the date
of the original filing.
In general, Rule 15(c)(1)(A) permits an amended pleading to relate back when “the law that
provides the applicable statute of limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A).

With respect to claims, Rule 15(c)(1)(B) allows relation back when “the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set
out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). “Where the amended complaint does
not allege a new claim but renders prior allegations more definite and precise, relation back
occurs.” Slayton v. Am. Exp. Co., 460 F.3d 215, 228 (2d Cir. 2006), as amended (Oct. 3, 2006).
And, “[w]here the amendment would involve a new cause of action, the district court may deny
leave unless the original complaint gave the defendant fair notice of the newly alleged claims.”
Charlot v. Ecolab, Inc., 97 F. Supp. 3d 40, 70 (E.D.N.Y. 2015) (internal quotation marks omitted)
(quoting O’Hara v. Weeks Marine, Inc., 294 F.3d 55, 68 (2d Cir.2002)). With respect to substitute
parties, Rule 15(c)(1)(C) permits relation back where “the amendment changes the party or the

naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within
the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought
in by amendment (i) received such notice of the action that it will not be prejudiced in defending
on the merits; and (ii) knew or should have known that the action would have been brought against
it, but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P. 15(c)(1)(C); see also

8 “In New York, Section 1983 claims are governed by a three-year statute of limitations.” Aouatif v. City of New York,
No. 07-CV-1302 (RRM) (JO), 2019 WL 2410450, at *14 (E.D.N.Y. May 31, 2019) (citing Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 79 (2d Cir. 2015)), aff’d, 811 F. App’x 711 (2d Cir. 2020). The alleged constitutional
violations described in the original complaint as previously amended occurred between October and November of
2014. (Compl. at 3–5; Pl’s Am. Facts at 3–6). As previously noted by the Court, Plaintiff’s complaint was filed “23
days before the end of the statute of limitations period.” (ECF No. 35 at 5).
Ceara v. Deacon, 916 F.3d 208, 211 (2d Cir. 2019) (describing conditions in which relation back
is permitted).
A. Plaintiff May Not Name or Substitute New Defendants
Construed liberally, Plaintiff’s motion to amend seeks to substitute seven John Doe Defendants

with named defendants or defendants with more specific descriptions. (See Mot. to Amend at 3–4
(requesting leave “to add specific Defendants as I list them by name or agency instead of 1-10
John Doe and 1-10 Jane Doe as I am doing my best to give specific information to my complaint”
and discussing permissibility of amendment “to correct a misnomer or misdescription of a
defendant”). Specifically, Plaintiff intends to substitute three of the John Doe defendants
associated with the Elmont Police Department with the three Alleged Arresting Officers—
McJacobs, Sandy, and Griffin—who Plaintiff alleges used excessive force in arresting him and
unlawfully instructed hospital staff to withhold treatment for his injuries. (ECF No. 52 at 2–3, 5,
8). Plaintiff also intends to substitute four John Doe Defendants associated with the Nassau County

Jail: two correctional officers and one correctional corporal that he alleges maced him in intake,
and with correctional officer Christantine, who Plaintiff previously indicated had intimidated him
in response to the Inspector General investigation, but now alleges sexually assaulted him. (Id. at
8). Plaintiff also seeks to add as new parties the Inspector General’s office and “the IG Officers”
that heard his complaints “for failure to protect against cruel and unusual punishment.” (Id. at 8,
11).
The County submits that these amendments are overdue, as Plaintiff “has waited almost
[seven] years after his arrest to name” the officers despite the availability of that information
through his criminal proceedings and through other record requests, and are futile, as the officers
that Plaintiff seeks to name are not mentioned in his arrest paperwork and are unknown to the
County. (Def’s First Opp. at 2; Def’s Second Opp. at 4). Plaintiff counters that McJacobs, Griffin
and Sandy were previously mentioned in his statement of Amended Facts and that his listing of
several Jane Doe and John Doe defendants in his original complaint was sufficient. (See ECF No.
57 (“Pl’s Reply”) at 3–4). Plaintiff also argues that he has made several record requests, including

FOIL requests to multiple agencies, and that those requests have been ignored or denied. (Id. at 3).
Plaintiff’s Proposed New Parties Do Not Relate Back under Rule 15(c)(1)(C)
It is well established in this Circuit that “an amendment to replace a John Doe defendant is
made ‘not to correct a mistake but to correct a lack of knowledge’ and is therefore not a mistake
under Rule 15(c)(1)(C).” Ceara, 916 F.3d at 213 (quoting Barrow v. Wethersfield Police Dep’t,
66 F.3d 466, 470 (2d Cir. 1995)); see also Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013)
(“This Court's interpretation of Rule 15(c)(1)(C) makes clear that the lack of knowledge of a John
Doe defendant's name does not constitute a ‘mistake of identity.’”); Anderson, 2020 WL 999856,
at *2 (internal quotation marks omitted) (“[I]t is well-established that John Doe pleadings generally

cannot be used to circumvent statutes of limitations because replacing a ‘John Doe’ with a named
party in effect constitutes a change in the party sued.”). “This standard applies equally to pro se
litigants.” Franks v. City of New York, No. 13-CV-6254 (KAM) (RER), 2017 WL 1194500, at *5
(E.D.N.Y. Mar. 31, 2017) (citing Perez v. New York City Police, 234 F.3d 1262, 2000 WL
1715248, at *1 (2d Cir. 2000); Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999)). Accordingly,
“relation back is precluded under Rule 15(c)(1)(C) where a plaintiff does not know the names of
the officers against whom he seeks to assert a § 1983 claim.” Chow v. Shorefront Operating LLC,
No. 19-CV-3541 (FB) (SJB), 2021 WL 225933, at *5 (E.D.N.Y. Jan. 20, 2021) (citing Hogan, 738
F.3d at 518; Scott v. Village of Spring Valley, 577 F. App'x 81, 82–83 (2d Cir. 2014)).
Similarly, courts in this Circuit do not apply Rule 15(c) to permit relation back where a plaintiff
seeks to add an additional party as a defendant after the statute of limitations has expired. See, e.g.,
Whetsel v. Montas, No. 19-CV-2687(JS)(AYS), 2021 WL 1550514, at *3 (E.D.N.Y. Apr. 19,
2021) (quoting Jhagroo v. Brown, No. 16-CV-03426, 2020 WL 3472424, at *2 (S.D.N.Y. June

25, 2020)) (“Rule 15(c)(1)(C) ‘applies only where an amendment changes the party or the naming
of the party against whom a claim is asserted—not where, as here, Plaintiff seeks to add new
parties.’”); Atakhanova v. Home Fam. Care Inc., No. 16-CV-6707 (KAM) (RML), 2019 WL
2435856, at *6 (E.D.N.Y. Feb. 19, 2019) (declining to apply relation back doctrine where plaintiffs
“do not seek to substitute” one defendant for another, but seek to add an additional defendant);
Pikos v. Liberty Maint., Inc., 09 CV 4031, 2015 WL 6830670, at *3 (E.D.N.Y. Nov. 6, 2015)
(“Courts in this circuit have held relation back is only permitted where plaintiff named the wrong
party in the original complaint, and not where plaintiff named one but not all of the right
defendants.”).
Notwithstanding Plaintiff’s reference to the names McJacobs, Griffin, Sandy, and Christiantine

in the statement of Amended Facts (Pl’s Am. Facts at 3, 6)—which was itself filed after the statute
of limitations expired and has not been construed as a request to add those individuals as parties—
Plaintiff’s attempt to add those individuals as substitutes for the John Doe defendants named in
the original complaint amounts to an attempt to add additional parties, and is not permitted under
Rule 15(c)(1)(C). See, e.g., Hogan, 738 F.3d at 518; Anderson, 2020 WL 999856, at *2. Plaintiff’s
belated attempt to add the Inspector General and its employees as new parties to this case long
after the statute of limitations has expired is similarly not permitted under Rule 15(c)(1)(C). See,
e.g., Whetsel, 2021 WL 1550514, at *3; Atakhanova, 2019 WL 2435856, at *6.
Plaintiff Has Not Demonstrated Diligence Required For Relation Back Under Rule
15(c)(1)(A) and N.Y. C.P.L.R. § 1024
Alternatively, “the fact that relation back may be unavailable under Rule 15(c)(1)(C) does not
preclude the possibility that it is available under state law.” Joseph v. Bute, No. 16-CV-2004 (PKC)
(LB), 2019 WL 181302, at *4 n.10 (E.D.N.Y. Jan. 9, 2019). Since “Section 1983 derives its statute
of limitations from state law,” the Court “may find that relation back is permitted under N.Y.
C.P.L.R. § 1024” and Fed. R. Civ. P. 15(c)(1)(A). Id. (citing Hogan, 738 F.3d at 518). Section
1024 provides: “a party who is ignorant, in whole or in part, of the name or identity of a person
who may properly be made a party, may proceed against such person as an unknown party by

designating so much of his name and identity as is known. If the name or remainder of the name
becomes known all subsequent proceedings shall be taken under the true name and all prior
proceedings shall be deemed amended accordingly.” N.Y. C.P.L.R. § 1024. Under that section,
New York courts “permit John Doe substitutions nunc pro tunc” provided that two threshold
requirements are met: “First, the party must exercise due diligence, prior to the running of the
statute of limitations, to identify the defendant by name. Second, the party must describe the John
Doe party ‘in such a form as will fairly apprise the party that he is the intended defendant.” Hogan,
738 F.3d at 518–19 (citations omitted).
With respect to the diligence prong, in particular, “a plaintiff must show that he or she made
timely efforts to identify the correct party before the statute of limitations expired.” Bute, 2019 WL

181302, at *5 (internal quotation marks omitted) (emphasis added) (quoting Strada v. City of New
York, No. 11-CV-5735 (MKB), 2014 WL 3490306, at *5 (E.D.N.Y. July 11, 2014)). Such
diligence may include submitting timely FOIL requests, making discovery requests, and
submitting informational inquiries to government officials to obtain information about the
defendant’s identity. Id. (citing Barrett v. City of Newburgh, 720 Fed. App’x 29, 33 (2d Cir. 2017);
Hogan, 738 F.33d at 519; Medina v. Seiling, No. 14-CV-6034 (VSB) 2018 WL 1603857, at *7
(S.D.N.Y. Mar. 29, 2018); Ceara v. Deacon, 68 F. Supp. 3d 402, 410 (S.D.N.Y. 2014)); see also
Baptiste v. Suffolk Cnty., No. 19-CV-42 (RPK) (VMS), 2022 WL 1224570, at *4–5 (E.D.N.Y.
Apr. 26, 2022) (quoting Boston v. Suffolk County, 326 F. Supp. 3d 1, 13 (E.D.N.Y. 2018) (“To

identify unknown parties after filing, a plaintiff is advised to serve discovery demands upon any
known parties . . . or otherwise act with diligence.”).
Plaintiff claims that he has “requested over these [seven] years many FOIL request to multiple
agencies including Defendants and this Court and all my request was not replied to by the agencies
and Defendants and denied by this Court.” (Pl’s Reply at 3). However, Plaintiff does not indicate
the substance of these requests, whether they sought specific information regarding the identities
of the individuals described in the complaint, or the extent to which they were made before the
statute of limitations expired, such that he has adequately established the diligence prong. Further,
notwithstanding his pro se status, that Plaintiff continues to misidentify the arresting officers to
date despite having received the Nassau County Police Department Crime Report listing his

arresting officers further demonstrates a lack of diligence on his part. (See ECF No. 59-2 (report
listing Russell R. Bastone, Steve BenJacob, Tristan Gregory Cetto, Daniel B. Fels, Gregory E.
Martin, Roy E. McComb, Edward L. Sholl, as the officers associated with Plaintiff’s arrest)); see
also Vasconcellos v. City of New York, No. 12-CV-8445 (CM) 2014 WL 4961441, at *9 (S.D.N.Y.
Oct. 2, 2014) (“Vasconcellos did nothing to exercise due diligence prior to the running of the
statute—or for that matter, after it ran.”); cf. Bute, 2019 WL 181302, at *5 (finding diligence where
“prior to filing suit and within one year of the alleged misconduct, [p]laintiff sought to learn
[d]efendants’ identities by filing a formal CCRB complaint,” and “made several additional efforts
to ascertain [d]efendants’ identities before the expiration of the statute of limitations,” including a
FOIL request, attempts to contact plaintiff’s criminal lawyers at the Legal Aid Society, and
attempts to subpoena the Legal Aid Society and the CCRB).
Because Plaintiff has not adequately demonstrated diligence in attempting to identify the John
Doe defendants prior to the expiration of the statute of limitations, he has not satisfied the

requirements of N.Y. C.P.L.R. § 1024 such that relation back is warranted. Accordingly, as
Plaintiff’s proposed amendments with respect to the addition of new or substitute parties are time-
barred and do not relate back, and are therefore futile, the Court denies his motion to amend with
respect to those requests.
B. Plaintiffs’ New Claims Are Time Barred and Do Not Relate Back
“For a newly-added claim to relate back under Rule 15(c)(1)(B), ‘the basic claim must have
arisen out of the conduct set forth in the original pleading.’” ASARCO LLC v. Goodwin, 756 F.3d
191, 202 (2d Cir. 2014) (quoting Slayton v. Am. Express Co., 460 F.3d 215, 228 (2d Cir. 2006)).
“[T]he central inquiry is whether adequate notice of the matters raised in the amended pleading

has been given to the opposing party within the statute of limitations by the general fact situation
alleged in the original pleading.” Id. (alteration in original) (quoting Slayton, 460 F.3d at 228).
Accordingly, “even where an amended complaint tracks the legal theory of the first complaint,
claims that are based on an entirely distinct set of factual allegations will not relate back.” Lehman
XS Trust v. Greenpoint Mortg. Funding, Inc., 916 F.3d 116, 128 (2d Cir. 2019) (quoting Slayton,
460 F.3d at 228).
Plaintiff argues that his motion to amend does not seek to assert “any new cause of action
against the County but further gives facts, detail and clearification [sic] of [his] complaint[.]” (Mot.
to Amend at 2). While Plaintiff continues to pursue a single cause of action under § 1983, the
County properly notes that Plaintiff’s proposed amended pleading includes a number of new and
distinct factual allegations and raises new constitutional violations for which the predicate facts
were not set forth in the original pleading. (Def’s First Opp. at 2; Def’s Second Opp. at 6). For
instance, liberally construed, Plaintiff’s initial amended pleading alleged that Plaintiff was denied
medical treatment and had his property impermissibly taken from him by a police officer upon

arrival at the hospital. (Pl’s Am. Facts at 3). Plaintiff’s proposed amended pleading now alleges
that he was subjected to an unlawful strip search at the hospital following his arrest. (Mot. to
Amend at 8). Similarly, Plaintiff’s proposed amended pleading contains new factual allegations
that he was surreptitiously and unlawfully prescribed mental health medication by the correctional
officers and nurses at intake upon arriving at the Nassau County jail. (Id. at 9). Further, Plaintiff
raises new factual allegations regarding retaliatory conduct arising out of his complaints to the
Inspector General. (See id. at 11–12 (alleging additional attacks from October 2014 to October
2015 orchestrated by correctional officers and staff, including two separate instances in which
other incarcerated individuals threw feces at Plaintiff). Although the Court is sympathetic to
Plaintiff’s grievances, these allegations are entirely distinct from those set out in the original

complaint and the statement of amended facts, and cannot have given the defendants notice of the
corresponding claims within the statute of limitations.
Finally, Plaintiff raises new allegations regarding retaliatory conduct in response to his filing
this lawsuit by correctional officers at a facility in which he was housed in January 2021. (See id.
at 12 (“In 2021 January 5, 2021 I was stripped searched and for 2 hours correctional officers T.
Decker and W. Atkins, Sergeant Mendez and Rosado read my 1983 from Eastern District Court
against Nassau County and the Police department and the Detention Center and made jokes on
1.23.1 at my cubical area 8 cell 8 bed talking about how they are going to get me and they’re going
to teach me a lesson the same way that it happened back in October.”). These allegations similarly
do not arise out of the conduct described in the original complaint. Further, Plaintiff does not seek
to add these correctional officers or the facility they work for as defendants to the case.
Accordingly, these new retaliation claims cannot go forward on a supplemental basis. Cf.
Quintanilla v. Suffolk Paving Corp., No. 09-CV-5331 (AKT), 2012 WL 4086805, at *5 (E.D.N.Y.

Sept. 17, 2012) (citing Ke v. 85 Fourth Ave. Inc., No. 07–CV–6897, 2009 WL 185949, at *2
(S.D.N.Y. Jan. 22, 2009); Witkowich v. Gonzales, 541 F.Supp.2d 572, 590 (S.D.N.Y. 2008))
(permitting plaintiffs “to supplement pleadings to include alleged acts of retaliation” perpetrated
by the named defendants that “occurred after the original complaint was filed.”).9
Accordingly, to the extent Plaintiff seeks to add these new factual allegations and to his
complaint, which are otherwise time-barred and do not relate back to the original complaint, the
motion to amend is denied.
C. Plaintiff May Clarify Factual Allegations Raised in His Initial Complaint
Plaintiff argues that his motion to amend does not seek to assert “any new cause of action

against the Defendants but further gives facts, detail and clearification [sic] of [his]
complaint . . . as there are mistakes in the statement of facts and [his] complaint has been
misquoted.” (Mot. to Amend at 2). Specifically, Plaintiff expresses concern that orders issued by
the Court have misinterpreted his complaint and mischaracterized the facts by describing him as
the driver of the taxi that was pulled over in the lead up to his arrest, and by indicating that he
stayed in the hospital overnight. (Mot to Amend. at 2 (citing Pierre v. Cnty. of Nassau, No. 17-
CV-6629 (LDH) (RER), 2020 WL 5369052, at *1 (E.D.N.Y. Sept. 8, 2020)).

9 As the statute of limitations has not run on Plaintiff’s retaliation claims against these officers, which accrued on
January 5, 2021, Plaintiff may separately pursue a separate lawsuit against those officers and the facility that they
work for, if he wishes to do so.
Although Plaintiff is not permitted to add or substitute new defendants, and is not permitted to
discuss new allegations and events separate from those occurrences in October through November
2014 described in his complaint, “the Court should grant plaintiff leave to amend his complaint
against the existing defendants.” Wilson v. City of New York, No. 18 CV 7301 (AMD) (LB), 2019

WL 4248470, at *3 (E.D.N.Y. July 11, 2019) (citing Cintron v. Weissman, No. 9:14-CV-0116,
2015 WL 5604954, at *5 (N.D.N.Y. Sept. 23, 2015); Mackey v. Dicaprio, No. 02 Civ. 1707, 2006
WL 2572111, at *3 (S.D.N.Y. Sept. 7, 2006), adopted by, 2019 WL 4247542 (Sept. 6, 2019).
Specifically, the Court grants Plaintiff leave to more specifically describe the facts alleged in his
complaint and statement of amended facts, to include only his status as a passenger in the taxi, the
specific timing of the occurrences alleged in the original complaint, and the extent of the injuries
he sustained as a result of the misconduct alleged in the original complaint. The complaint is
deemed to be so amended.
II. Motion for Discovery and Sanctions

Subject to the relevance and proportionality requirements of Rule 26(b), a party that is served
with a discovery request must “produce . . . any designated documents or electronically stored
information—including . . . photographs, sound recordings, images and other data or data
compilations [.]” Fed. R. Civ. P. 34(a)(1)(A). If a party fails to produce material subject to a request
under Rule 34, the “party seeking discovery may move for an order compelling” production. Fed.
R. Civ. P. 37(a)(3)(B)(iv). When moving to compel, the movant “must include a certification that
the movant has in good faith conferred or attempted to confer with the person or party failing to
make the disclosure or discovery in an effort to obtain it without court action.” Fed. R. Civ. P.
37(a)(1); see also Local Civil Rule 37.3(a) (“Prior to seeking judicial resolution of a discovery or
non-dispositive pretrial dispute, the attorneys for the affected parties or non-party witness shall
attempt to confer in good faith in person or by telephone in an effort to resolve the dispute, in
conformity with Fed. R. Civ. P. 37(a)(1).”).10
“As in every discovery context, a motion to compel is entrusted to the sound discretion of the
district court.” Liberty Mut. Ins. Co. v. Kohler Co., No. 08-CV-867 (SJF) (AKT, 2010 WL

1930270, at *2 (E.D.N.Y. May 11, 2010) (citing In re Fitch, Inc., 330 F.3d 104, 108 (2d Cir.2003);
United States v. Sanders, 211 F.3d 711, 720 (2d Cir.2000)). In exercising that discretion, “courts
should not grant discovery requests based on pure speculation that amount to nothing more than a
fishing expedition.” Norton v. Town of Islip, No. 04-CV-3079 (PKC) (SIL), 2019 WL 4194271, at
*5 (E.D.N.Y. Sept. 4, 2019) (quoting Collens v. City of New York, 222 F.R.D. 249, 253 (S.D.N.Y.
2004)); Alvarado v. GC Dealer Servs. Inc., No. 18-CV-2915 (SJF) (SIL), 2018 WL 6322188, at
*2 (E.D.N.Y. Dec. 3, 2018) (same); see also United States v. UBS Sec. LLC, No. 18-CV-6369
(RPK) (PK), 2020 WL 7062789, at *9 (E.D.N.Y. Nov. 30, 2020) (quoting Tottenham v. Trans
World Gaming Corp., No. 00-cv-7697, 2002 WL 1967023, at *2 (S.D.N.Y. June 21, 2002))
(“Discovery requests cannot be based on pure speculation or conjecture.”).

Liberally construed, Plaintiff requests that the Court compel the County to produce video
footage or photographs of the incidents referenced in his complaint, and sanction the County for
its failure to preserve and produce such footage. (Mot. for Discovery & Sanctions at 1–3; see also
Pl’s Reply at 1–2). The County responds that it has produced all responsive photographs, including

10 The meet and confer requirement imposed by the federal and local rules applies equally to pro se plaintiffs. See
Vaigasi v. Solow Mgmt. Corp., No. 11 Civ. 5088 (RMB) (HBP), 2016 WL 616386, at *11 (S.D.N.Y. Feb. 16, 2016)
(collecting cases and finding pro se “[p]laintiff’s failure to meet and confer with defense counsel in good faith is
sufficient reason by itself to deny plaintiff’s motion to compel”); Paige v. Lacoste, No. 10-CV-3356 (SLT) (RER),
2011 WL 6000563, at *1 (E.D.N.Y. Aug. 24, 2011) (denying pro se plaintiff’s motion to compel discovery, noting
that a “plaintiff may move to compel only after attempting to meet and confer regarding disputes over production of
documents or other requested discovery.”), adopted by, 2011 WL 6000392 (Nov. 28, 2011), judgment vacated on
reconsideration, 2012 WL 3027851 (July 24, 2012); Avent v. Solfaro, 210 F.R.D. 91, 95 (S.D.N.Y. 2002) (denying
pro se plaintiff’s motion to compel discovery and for sanctions where plaintiff failed to satisfy “the requirement under
the Federal and Local Rules that he first confer with the other party”).
“photos taken of the crime scene as well as photos of Plaintiff” (Def’s First Opp. at 3; Def’s Second
Opp. at 7). The County further responds that “[t]he Nassau County Correctional Center is equipped
with surveillance cameras which do not and are not intended to record.” (Def’s First Opp. at 3;
Def’s Second Opp. at 7). Accordingly, “while Plaintiff has probably observed cameras in locations

at the jail,” his “assumption that [video footage] exist[s] is speculation on his part.” (Def’s First
Opp. at 3; Def’s Second Opp. at 7). The County separately argues that Plaintiff’s motion for
discovery and sanctions must be denied because Plaintiff did not attempt to contact the County to
meet and confer “regarding potential missing video prior to filing the instant motion for sanctions.”
(Def’s Second Opp. at 7).
In reply, Plaintiff concedes that black and white photographs were produced, but argues that
“no visible damage can be made from these photographs,” and reiterates his conclusory allegation
that video footage from surveillance cameras exists and is “deliberately being withheld.” (Pl’s
Reply at 1–2). Plaintiff’s motion for discovery and sanctions does not contain the required
certification, and his reply papers provide no response to the County’s assertion that Plaintiff failed

to meet and confer before seeking judicial intervention. (See Mot. for Discovery & Sanctions; Pl’s
Reply; ECF No. 67 (“Pl’s Sur-Reply”)).
Even if Plaintiff had complied with the meet and confer requirements, this Court could not
compel production of video footage that the County has certified does not exist, and would not do
so based on Plaintiff’s bare speculation and conjecture that such footage must exist. See, e.g.,
Norton, 2019 WL 4194271, at *10 (E.D.N.Y. Sept. 4, 2019) (“[T]he Court concludes that it is
inappropriate to compel Plaintiff to produce documents that his counsel certifies do not exist.”);
Alvarado v. GC Dealer Servs. Inc., No. 18-cv-2915, 2018 WL 6322188, at *2 (E.D.N.Y. Dec. 3,
2018) (denying motion to compel because, inter alia “Plaintiff has repeatedly stated . . . that the
Requested Documents do not exist”); Carling v. Peters, No. 10-cv-4573, 2011 WL 3678839, at *4
(S.D.N.Y. Aug. 19, 2011) (“Other than speculation . . . [the defendant] offers no evidence that [the
plaintiff'] possesses [the requested] documents”); Madden v. Abate, No. 09-cv-145, 2010 WL
11610365, at *2 (D. Vt. Dec. 22, 2010) (denying motion to compel because the plaintiff “insofar

as she represents that she has already produced all responsive documents, should be taken at her
word”); Moll v. Telesector Res. Grp., Inc., No. 04-CV-805S, 2010 WL 4642931, at *3 (W.D.N.Y.
Nov. 17, 2010), vacated in part, 760 F.3d 198 (2d Cir. 2014) (denying the plaintiff's motion to
compel despite the argument that “there must have been” responsive documents, relying on the
defendant's representation that a reasonable search found no responsive documents).
Because Plaintiff failed to meet and confer with the County in advance of seeking judicial
intervention, and because the Court cannot compel production of video footage that does not exist,
Plaintiff’s motion to compel discovery and for sanctions is denied.

CONCLUSION
For the reasons set forth above, Plaintiff’s motion to amend is granted to the extent his amended
complaint describes his status as a passenger in the taxi (Mot. to Amend at 8), describes that he
did not stay at the hospital overnight (id. at 9), and describes the injuries he suffered on the night
of his arrest and as a result of the attacks previously described in Plaintiff’s statement of Amended
Facts (id. at 8–10). Plaintiff’s motion to amend is otherwise denied. Plaintiff’s motion for
discovery and for sanctions is denied in its entirety.
SO ORDERED.

/s/ Ramon E. Reyes, Jr.
RAMON E. REYES, JR.
United States Magistrate Judge

Dated: July 21, 2022
Brooklyn, NY

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10308260. Public record. Not legal advice.