Lopez v. Nassau County Correctional Center

UNITED STATES DISTRICT COURT CLERK

EASTERN DISTRICT OF NEW YORK 7/21/2025   10:57 am

-------------------------------------------------------------------X U.S. DIS TRICT COURT

EASTERN DISTRICT OF NEW YORK

CARLOS LOPEZ,

LONG ISLAND OFFICE

Plaintiff,

REPORT AND

RECOMMENDATION

23-cv-01105 (GRB)(JMW)

-against-

NASSAU COUNTY CORRECTIONAL CENTER,

SHERIFF JAMES DZURENDA, prior Sheriff, ANTHONY

LAROCA, current facility’s Sheriff, and YOLANDA

CANTY, Commissioner of Correction Commissioner,

Defendants.

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A P P E A R A N C E S:

Carlos Lopez

Sing Sing Correctional Facility

354 Hunter Street

Ossining, NY 10562-5442

Plaintiff proceeding Pro Se

Victoria LaGreca

Office of the Nassau County Attorney

One West Street

Mineola, NY 11501

Attorneys for Defendants Nassau County Correctional Center,

Sheriff James Dzurenda, and Anthony LaRocca.

Patricia M. Hingerton

NYS Office of the Attorney General

300 Motor Parkway, Suite 230

Hauppauge, NY 11788

Attorneys for Defendant Yolanda Canty

WICKS, Magistrate Judge:

Pro Se Plaintiff Carlos Lopez (“Plaintiff”), an incarcerated individual, commenced this

civil rights action pursuant to 42 U.S.C. § 1983 against Defendants Nassau County Correctional

Center (“NCCC”), Sheriff James Dzurenda, NCCC’s prior Sheriff (“Dzurenda”), Anthony

LaRocca, NCCC’s current Sheriff (“LaRocca”), and Commissioner of Corrections Yolanda

Canty (“Canty” and collectively, the “Defendants”) on February 9, 2023, arising out of the

“inhumane” conditions Pro Se Plaintiff faced upon his arrival at NCCC on November 4, 2021,

which allegedly caused Plaintiff to suffer an asthma attack, physical pain and suffering, and

“emotional, and mental pain and suffering.” (See generally, ECF No. 1.) Plaintiff further alleges

he did not receive proper medical care for his alleged medical conditions. (Id.)

On July 22, 2024, Defendant Canty filed a Motion to Dismiss pursuant to Fed. R. Civ. P.

(12)(b)(1) and 12(b)(6) (ECF Nos. 57, 59), which Plaintiff opposed (ECF No. 58). The Motion

was referred by the Hon. Gary R. Brown. (See Electronic Order dated May 25, 2023.) Following

review, the undersigned issued a Report & Recommendation (“R&R”) that recommended

dismissal in the entirety without prejudice. (ECF No. 60.) As part of the R&R, the Court directed

counsel for Defendants to serve Plaintiff and file proof of service within two business days. (Id.)

However, Counsel for Defendant Canty filed a letter over a week later indicating that Plaintiff

had not been served due to Counsel’s mistake, and immediately served Plaintiff, and then filed

proof of service. (ECF No 62.) With that, the time to file objections was extended to February

10, 2025. (Electronic Order dated 1/24/2025.) Plaintiff filed for an extension of time to object,

which was granted by Judge Brown while he expressly noted that this would be the final

extension. (ECF No. 65; Electronic Order dated 2/7/2025.) Nonetheless, Plaintiff requested an

additional extension, which Judge Brown did not grant. (ECF No. 67.)

Subsequently, Judge Brown adopted the undersigned’s R&R in full and explicitly

informed Plaintiff that “[i]n light of the difficulties identified by plaintiff in his letter dated

February 25, 2025, plaintiff is granted 90 days from the date of this order to amend his

complaint; should no amended complaint be filed, the claims against defendant Canty will be

deemed dismissed with prejudice.” (emphasis added) (Electronic Order dated 3/10/2025.)

Plaintiff was mailed a copy of this Order. (See Electronic Order dated 3/10/2025.) As such, the

date to file an amended complaint was June 8, 2025. It was not until July 14, 2025, 46 days late,

that Plaintiff sought an extension of time to file the amendment. (ECF No. 68.) Thus, before the

Court now is Plaintiff’s application for an extension of time to file his Amended Complaint (ECF

No. 68), which is jointly opposed by Defendants (ECF No. 69).

The Second Circuit has clarified the standard to be applied by the district courts in

considering motions for leave to amend dependent upon the timing of the proposed amendment:

The ability of a plaintiff to amend the complaint is governed by Rules 15 and 16 of

the Federal Rules of Civil Procedure which, when read together, set forth three

standards for amending pleadings that depend on when the amendment is sought.

At the outset of the litigation, a plaintiff may freely amend her pleadings pursuant

to Rule 15(a)(1) as of right without court permission. After that period ends—either

upon expiration of a specified period in a scheduling order or upon expiration of

the default period set forth in Rule 15(a)(1)(A)—the plaintiff must move the court

for leave to amend, but the court should grant such leave “freely . . . when justice

so requires” pursuant to Rule 15(a)(2). This is a “liberal” and “permissive”

standard, and the only “grounds on which denial of leave to amend has long been

held proper” are upon a showing of "undue delay, bad faith, dilatory motive, [or]

futility.” The period of “liberal” amendment ends if the district court issues a

scheduling order setting a date after which no amendment will be permitted. It is

still possible for the plaintiff to amend the complaint after such a deadline, but the

plaintiff may do so only up [to] a showing of the “good cause” that is required to

modify a scheduling order under Rule 16(b)(4).

Sacerdote v. NYU, 9 F.4th 95, 115 (2d Cir. 2021).

To this end, under Rule 16(b), “good cause” is required to modify a scheduling order

such as the one issued by Judge Brown on March 10, 2025. See Fed. R. Civ. P. 16(b)(4). The

Electronic Order set the date to amend pleadings, and that date has since passed. See Sacerdote,

9 F.4th at 115 (“[T]he period of ‘liberal’ amendment ends if the district court issues a scheduling

order setting a date after which no amendment will be permitted. It is still possible for the

plaintiff to amend the complaint after such a deadline, but the plaintiff may do so only up a

showing of the ‘good cause’ that is required to modify a scheduling order under Rule 16(b)(4)”).

To show good cause under Fed. R. Civ. P. 16(b)(4), “the moving party must demonstrate

that, despite having exercised diligence in its efforts to adhere to the court's scheduling order,

‘the applicable deadline [to amend] could not reasonably have been met.’” Christians of Cal.,

Inc. v. Clive Christian N.Y., LLP, No. 13 Civ. 0275 (KBF) (JCF), 2014 WL 3605526, at *4

(S.D.N.Y. July 18, 2024) (citation omitted). Plaintiff articulates that due to his pro se status

coupled with the staff shortages and the law library closure for about six weeks is what caused

the delay. (ECF No. 68 at 1.) However, Plaintiff failed to inform the Court of these issues until

well after the deadline passed notwithstanding Judge Brown’s clear directive on timing of further

amendments. With that, as this application is made 46 days late, and while the Court is mindful

of Plaintiff’s pro se status, Plaintiff had ample time and opportunity to seek an extension of time

sooner. At this point, considering the lateness of the application, the lack of good cause and the

resulting prejudice, the application should be denied. (ECF No. 69 at 2.)

As a final matter, as the Motion to Dismiss was only relevant to Defendant Canty, the

case remains open as to the remaining Defendants NCCC, Dzurenda, and LaRocca. Accordingly,

the undersigned respectfully recommends that Plaintiff’s latest Motion filed at ECF No. 68 be

DENIED.1

1 While the Second Circuit has suggested in dicta and non-precedential opinions that a motion to amend is

non-dispositive, it has yet to explicitly hold so. Thus, lower courts within this Circuit have taken two

approaches when deciding motions to amend: some treat the motion as wholly non-dispositive,

reviewable only for clear error, others treat the motion as dispositive if denying and non-dispositive if

granting.” Covet & Mane, LLC v. Invisible Bead Extensions, LLC, No. 21CIV7740 (JPC)(RWL), 2023

WL 6066168, at *5 (S.D.N.Y. Sept. 18, 2023) (internal citations omitted) (cleaned up). See e.g., Pusepa v.

Annucci, No. 17-CV-7954 (RA) (OTW), 2024 WL 4579450, at *1 (S.D.N.Y. Oct. 25, 2024) (“A

magistrate judge’s denial of a motion to amend a complaint should be treated as dispositive, while a grant

of the same motion should be treated as non-dispositive.”); Portelos v. City of New York, No. 12 Civ.

3141 (RRM) (VMS), 2015 WL 5475494, at *1 (E.D.N.Y. Sept. 15, 2015) (“[D]istrict courts in this circuit

CONCLUSION

For the foregoing reasons, it is respectfully recommended that Plaintiff’s Motion for

Extension of Time to Amend the Complaint (ECF No. 68) be DENIED.

OBJECTIONS

A copy of this Report and Recommendation is being electronically served on Defendants’

Counsel. Counsel for Defendants shall serve the Pro Se Plaintiff with this Report and

Recommendation and file proof of service on ECF within two business days. Any written

objections to this Report and Recommendation must be filed with the Clerk of the Court within

fourteen (14) days of service of this Report. 28 U.S.C. § 636(b)(1) (2006 & Supp. 2011); Fed. R.

Civ. P. 6(a), 72(b). Any requests for an extension of time for filing objections must be directed to

the district judge assigned to this action prior to the expiration of the fourteen (14) day period for

filing objections. Failure to file objections within fourteen (14) days will preclude further review

of this Report and Recommendation either by the District Court or the Court of Appeals. Thomas

v. Arn, 474 U.S. 140, 145 (1985) (“a party shall file objections with the district court or else

waive right to appeal”); Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (“failure to

object timely to a magistrate's report operates as a waiver of any further judicial review of the

magistrate’s decision”); see Monroe v. Hyundai of Manhattan & Westchester, 372 F. App’x 147,

147–48 (2d Cir. 2010) (summary order) (same).

have generally found that denial of a motion to amend is dispositive, whereas granting a motion to amend

is non-dispositive.”). Accordingly, because the recommendation herein is that the motion be denied, the

undersigned proceeds by Report and Recommendation rather than by Order. And, in accordance with

Judge Brown’s Individual Rules, motions to amend are handled by the Magistrate Judge. See Judge

Brown’s Individual Rule II(f)(1).

RESPECTFULLY RECOMMENDED,

James M. Wicks

/S/

JAMES M. WICKS

United States Magistrate Judge

Dated: Central Islip, New York

July 21, 2025