The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FREDERICK GROSS, Pro Se,
Plaintiff,
ORDER
-against- CV 24-1722 (GRB) (AYS)
JAMES C. JOHNSON – DETECTIVE BADGE #1609
in his individual and official capacity
COUNTY OF SUFFOLK – municipality responsible
for the actions of their agents and employees
Defendants.
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ANNE Y. SHIELDS, United States Magistrate Judge:
By Report and Recommendation dated June 30, 2205, this Court recommended that
Plaintiff’s Complaint be dismissed in its entirety and that Plaintiff be permitted to replead solely
to assert a Bivens claim against Defendant Johnson. (Docket Entry (“DE”) [60].) That Report
and Recommendation was adopted in its entirety by the District Court on September 3, 2025, and
Plaintiff was afforded thirty (30) days to file an amended compliant solely to assert a Bivens
claim against Defendant Johnson. (Order of Brown, J., dated Sept. 3, 2025.)
On September 15, 2025, Plaintiff filed a motion to amend his Complaint, seeking to add
three individuals and the United States of America as defendants in this action. (DE [77].) A
copy of the Proposed Amended Complaint was attached to Plaintiff’s motion. (DE [77-1].) In
addition to adding new defendants to the action – against whom Bivens claims are alleged – the
Proposed Amended Complaint also contains causes of action for malicious prosecution, due
process violations, unlawful search and seizure, a purported violation of 28 U.S.C. § 2680(h) by
the United States, violations of the Federal Tort Claims Act, intentional infliction of emotional
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distress, battery and negligence, the majority of which were dismissed, with prejudice and
without leave to replead, by the District Court.
This Court’s Report and Recommendation, adopted by the District Court’s September 3,
2025 Order, was unambiguous and crystal clear that Plaintiff was only afforded leave to replead
to assert a Bivens claim against Defendant Johnson. Plaintiff was not granted leave to amend his
Complaint to add new defendants or to replead any other causes of action. Yet this is precisely
what Plaintiff attempts to do. Plaintiff’s motion to amend is denied for failure to comply with
Court Orders.
Moreover, even if the Court were to consider Plaintiff’s motion to amend on the merits, it
fails on the grounds of futility. The applicable statute of limitations for a Bivens claim arising in
New York is three years. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013). Plaintiff seeks
to add the newly named individual defendants based on interactions he had with them on January
27, 2022 and February 8, 2022. (DE [77-1] ¶¶ 5, 12.) At the very latest, the statute of limitations
for such claims against the proposed individual defendants expired on February 8, 2025. In his
motion to amend, Plaintiff admits to having known about these individuals for “the past year and
a half.” (DE [77] at ¶ I.) Yet, he made no effort to include them in this lawsuit until after the
statute of limitations expired and after Defendants’ motions to dismiss were granted. Permitting
Plaintiff to amend his Complaint now to include such individuals would be futile.
With respect to the claims asserted against the United States, as this Court already found
in its Report and Recommendation, which, again, was adopted by the District Court in its
entirety, sovereign immunity protects the United States from most of the claims asserted by
Plaintiff. As for the claim alleged pursuant to the Federal Tort Claims Act, Plaintiff failed to
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exhaust his administrative remedies before pursuing such a claim and, accordingly, the claim
was dismissed with prejudice. (DE [60].)
For all of the foregoing reasons, Plaintiff’s motion to amend is denied. Plaintiff is
afforded two (2) weeks to file an Amended Complaint solely asserting a Bivens claim against
Defendant Johnson, as previously directed by the District Court. Upon receipt of a proper
Amended Complaint, the Court will lift the stay of discovery previously imposed and discovery
will commence.
SO ORDERED:
Dated: Central Islip, New York
September 24, 2025 /s/ Anne. Y. Shields
ANNE Y. SHIELDS
United States Magistrate Judge
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