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United States District Court, Southern District of New York

March 24, 2003


The opinion of the court was delivered by: Gabriel W. Gorenstein, Magistrate Judge.


By order dated September 4, 2002, Judge Lawrence M. McKenna referred the instant case to the undersigned for supervision of pretrial proceedings. Upon reviewing the record, it came to the Court's attention that a motion to amend the complaint filed in August 1999 had never been ruled upon. Accordingly, the Court issued an order seeking defendants' views on the motion and the defendants filed a memorandum of law and declaration in opposition to the motion on January 24, 2003. Allah filed reply papers on February 13, 2003. For the reasons stated below, Allah's motion to amend is denied.


Allah filed this action pro se on December 22, 1993. The facts of the case are set forth in Allah v. Juchnewioz, 1999 WL 562100 (S.D.N.Y. July 30, 1999), which granted in part and denied in part defendants' motion for summary judgment. In brief, Allah — then an inmate at Green Haven Correctional Facility — alleges that he was approached by Sergeant Vincent V. Juchnewioz in September 1993 and asked to become an informant. After Allah refused, Juchnewioz allegedly retaliated against Allah by fabricating a misbehavior report in which Giselle Wilser, a civilian employee of the New York State Department of Correctional Services ("DOCS"), claimed that Allah made sexual advances towards her. The subsequent charges against Allah were dismissed following a Tier III disciplinary hearing. Nonetheless, Allah was kept in keeplock for fourteen days and missed eight college classes, forcing him to leave a college program for the semester. See Complaint, filed December 22, 1993, ¶¶ VIII-XII.

The original complaint named three defendants — Juchnewioz, Wilser, and Correctional Officer David Tortorello — and asserted violations of the Eighth and Fourteenth Amendments as well as a retaliation claim. Defendants moved for summary judgment on April 28, 1997. Allah opposed the motion on May 8, 1997 and later moved to amend his complaint to add DOCS and Corcraft Industry, Inc. ("Corcraft") as additional defendants. See Second Amended Complaint, dated November 26, 1998 ("Second Am. Compl.") (annexed to Notice of Motion, filed December 9, 1998). Corcraft is apparently the trade name of the manufacturing division of DOCS, which employs inmates to produce various goods and services. See; see also Allah, 1999 WL 562100, at *7 n. 7 (assuming that Corcraft is part of DOCS).

Allah alleged that DOCS and Corcraft failed to train and supervise their staff adequately and that Corcraft discriminated against Allah on account of his race. See Second Am. Compl. ¶¶ 8-12, 16. Allah also alleged that DOCS and Corcraft retaliated against him by causing him to lose his job in the Corcraft upholstery shop after the disciplinary charges were dismissed. Id. ¶ 12. In addition, Allah sought to include claims under the Americans with Disabilities Act and the Rehabilitation Act. See id. ¶ 21.

This motion was ultimately decided as part of Judge McKenna's July 30, 1999 ruling on 2 the defendants' motion for summary judgment. In his decision, Judge McKenna dismissed Allah's Eighth and Fourteenth Amendment causes of action but allowed the retaliation claim under § 1983 to stand. Allah, 1999 WL 562100, at *3-*7. He also granted Allah's motion to amend the complaint only to the extent that he asserted a claim for retaliation against DOCS and Corcraft. Id. at *7. Allah's motion to amend was denied in all other respects. Id.

The following week, on August 5, 1999, Allah moved to file a third amended complaint in accordance with Judge McKenna's decision. Despite Judge McKenna's prior ruling, Allah reasserted his allegations concerning the failure of both DOCS and Corcraft to train and supervise their employees, see Third Consolidated Amened [sic] Complaint with Jury Demand, dated August 2, 1999 ("Third Am. Compl.") (annexed to Notice of Motion, filed August 5, 1999), ¶¶ I, IV, XII, and attempted to revive his dismissed Fourteenth Amendment claim. See id. at 3. Further, Allah sought for the first time to add as a defendant Ginny Blaetz, the DOCS employee who signed the memorandum that led to Allah's suspension from Corcraft. See Third Am. Compl. ¶ X-XII. The defendants made no response to the motion to amend until this Court ordered the defendants to respond. See Order, dated January 13, 2003.

Defendants filed their response on January 24, 2003, arguing that the motion to amend should be denied principally on statute of limitations and Eleventh Amendment immunity grounds. See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend the Complaint or in the Alternative to Dismiss the Claims Against the New York State Department of Correctional Services and Corcraft Industry, Inc., dated January 24, 2003 ("Def. Mem."), at 6-11. Allah argued in response that Judge McKenna had already decided the issue of whether DOCS and Corcraft could be added; that the defendants had waited too long to make 3 these arguments; and that the proposed amended complaint was proper. See Reply Affidavit in Support of Amended Complaint and Opposition to Defendants [sic] Answer, filed February 13, 2003 ("Pl. Reply Aff."), ¶¶ 1-11; see also Supplemental Affidavit in Support of Reply Affidavit & Opposition, dated February 1, 2003 (annexed to Pl. Reply Aff.), ¶¶ 1-4.


A. Addition of DOCS and Corcraft as Defendants

The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Thus, "it is clear . . . that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (citations omitted). The Supreme Court has also specifically held that 42 U.S.C. § 1983 is not a statute that abrogates the States' sovereign immunity. See Quern v. Jordan, 440 U.S. 332, 340-43 (1979). A finding of sovereign immunity under the Eleventh Amendment deprives a federal court of jurisdiction. See Kimel v. Florida Bd. of Regents, 528 U.S. 62, 73 (2000) ("the Constitution does not provide for federal jurisdiction over suits against nonconsenting states") (citations omitted); see also Atlantic Healthcare Benefits Trust v. Googins, 2 F.3d 1, 4 (2d Cir. 1993) (Eleventh Amendment immunity argument raised sua sponte as it "affects our subject matter jurisdiction.") (citations omitted), cert. denied, 510 U.S. 1043 (1994).

New York has not consented to suits in federal court. See Trotman v. Palisades Interstate Park Comm'n, 557 F.2d 35, 38-40 (2d Cir. 1977). As DOCS is a subdivision of New York State, cases routinely hold that it may not be sued for monetary damages. See, e.g., Bryant v. New York State Dep't of Corr. Servs. Albany, 146 F. Supp.2d 422, 425-26 (S.D.N.Y. 2001); Gonzalez v. New York State Dep't of Corr. Servs. Fishkill Corr. Facility, 122 F. Supp.2d 335, 340 (N.D.N.Y. 2000); Kaplan v. New York State Dep't of Corr. Servs., 2000 WL 959728, at *2 (S.D.N.Y. July 10, 2000); Jackson v. Johnson, 985 F. Supp. 422, 426 (S.D.N.Y. 1997). Because Corcraft is merely a trade name for one of DOCS's divisions, it likewise is immune from suit. See generally Komlosi v. New York State Office of Mental Retardation and Developmental Disabilities, 64 F.3d 810, 815 (2d Cir. 1995) (immunity rule applies to "governmental entities that are considered arms of the state for Eleventh Amendment purposes") (internal quotation marks and citations omitted). While an exception to this rule exists for injunctive relief, see, e.g., Green v. Mansour, 474 U.S. 64, 68 (1985), Allah throughout this litigation has sought only money damages.

Allah has correctly noted that a municipality may be sued for damages as described in Monell v. Dep't of Social Services, 436 U.S. 658 (1978). But that is only because the Eleventh Amendment treats municipalities differently from States. See, e.g., Will v. Michigan Dep't of State Police, 491 U.S. 58, 70 (1989) ("States are protected by the Eleventh Amendment while municipalities are not").

The Court recognizes that Judge McKenna specifically informed Allah that he could add DOCS and Corcraft as defendants for his retaliation claim. Allah, 1999 WL 562100, at *7. While the "law of the case" doctrine might counsel against reversing that ruling now, it does not apply where subject matter jurisdiction is implicated. See, e.g., Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42, 47 (2d Cir. 2002); see also Jehnsen v. New York State Martin Luther King, Jr., Inst. for Nonviolence, 13 F. Supp.2d 306, 309 (N.D.N.Y. 1998) (Eleventh Amendment immunity argument not precluded by law of the case doctrine because "questions of subject matter jurisdiction are generally exempt from law of the case principles") (quotation marks and citations omitted). In addition, the law of the case doctrine provides ample discretion for a district court to reconsider its own prior rulings. See, e.g., Lewis v. Whelan, 99 F.3d 542, 545 (2d Cir. 1996); United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991); Scottish Air Int'l, Inc. v. British Caledonian Group, PLC, 152 F.R.D. 18, 24-25 (S.D.N.Y. 1993); see generally DiLaura v. Power Auth. of State of New York, 982 F.2d 73, 76 (2d Cir. 1992) (law of the case doctrine "does not limit a court's power to reconsider its own decisions prior to final judgment") (internal quotation marks and citations omitted).

The Court is sympathetic to Allah's frustration over the defendants' failure to raise the Eleventh Amendment immunity argument at the time Allah made his second motion to amend. But given that subject matter jurisdiction is implicated here, DOCS and Corcraft cannot remain as defendants in this case.

B. Addition of Blaetz as Defendant

The next issue to be resolved is Allah's motion to amend insofar as he seeks to add Blaetz as a defendant in this case. Under Fed.R.Civ.P. 15(a), leave to file an amended complaint "shall be freely given when justice so requires." Nonetheless, it is well settled that leave may be appropriately denied where there is evidence of "undue delay, bad faith, undue prejudice to the non-movant, or futility." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)); accord Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (per curiam).

At least two of the above factors are present here. First, Allah's motion to add Blaetz was not filed until August 1999, nearly six years after the original complaint was submitted to the Court's Pro Se Office and, according to the docket sheet, more than four years after the close of discovery. Yet the basis for adding Blaetz — that she had signed the memorandum authorizing Allah's suspension from the upholstery shop — was known to Allah at the time of the original filing. See Second Am. Compl. ¶ 12 (conceding that Blaetz sent him the letter suspending him from Corcraft in September 1993). There is little doubt that this constitutes "undue delay." This is particularly so considering that Allah has not offered any justification or excuse for his delay. See Sala v. Gates Const. Co., 155 F.R.D. 414, 415 (E.D.N.Y. 1994) ("It is Plaintiff's burden to demonstrate why . . . leave [to amend the complaint] should be granted in the face of an overly long delay.") (citations omitted). The failure to name Blaetz in the original complaint thus "must be considered a matter of choice." Cornwell v. Robinson, 23 F.3d 694, 705 (2d Cir. 1994). An unexplained six-year delay counsels heavily against granting leave to amend. Cf. Jin v. Metro. Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002) (motion to amend four years after commencement of action and more than three years after close of discovery constituted "undue delay").

In addition, Allah's motion to amend the complaint to include Blaetz is futile because, if added as a defendant, Blaetz would have a meritorious claim for dismissal on statute of limitations grounds. "Under federal law, which governs the accrual of claims brought under § 1983, a claim accrues once the plaintiff knows or has reason to know of the injury which is the basis of his action." Veal v. Geraci, 23 F.3d 722, 724 (2d Cir. 1994) (quotation marks and citations omitted); accord Ormiston v. Nelson, 117 F.3d 69, 70 (2d Cir. 1997). In section 1983 actions, "the applicable limitations period is found in the `general or residual [state] statute [of limitations] for personal injury actions.'" Ormiston, 117 F.3d at 71 (quoting Owens v. Okure, 488 U.S. 235, 249-50 (1989)). New York Civil Practice Law and Rules § 214, which governs section 1983 claims in New York, provides that personal injury actions be brought within three years of the accrual date. See id.

Here, Allah's claim against Blaetz accrued in September 1993 when he was first notified of his suspension from the upholstery workshop. See Second Am. Comp. ¶ 12. Because he failed to seek leave to add her as defendant until August 1999 — nearly six years later — it is clear even if the motion to amend were granted and Blaetz were served, she would have a meritorious statute of limitations defense. Thus, granting Allah's motion would be a futile exercise.

Allah appears to argue that his claim against Blaetz should relate back to the filing of the original complaint because the claim against Blaetz concerns the "original retaliatory conduct of the defendants." Pl. Reply Mem. ¶ 11; see also id. ("the amended [complaint] proceeded from the original complaint relating back to the initial retaliatory conduct which resulted in plaintiff's suspension and termination from his institutional job assignment"). But Fed.R.Civ.P. 15(c) will permit a claim to relate back only if the new party being brought in "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Fed.R.Civ.P. 15(c)(3). This exception "presupposes that in fact the reason for [the new party's] not being named was a mistake in identity." Cornwell, 23 F.3d at 705. No such mistake exists here as Allah knew Blaetz's identity at the time of his original filing. See Second Am. Compl. ¶ 12.

Allah argues that defendants' opposition to the amendment should be rejected because "they failed to respond to the actual amended complaint in a timely fashion." Pl. Reply Aff. ¶ 9. As noted, the Court is sympathetic to Allah's frustration over the defendants' past inaction in this case. Nonetheless, this frustration cannot be attributed to Blaetz, who has never been a party to this action. Based on the delay in bringing the motion to amend and its futility, leave to amend is denied.


For the foregoing reasons, plaintiff's motion to file a third amended complaint is denied.


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