The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
To the Hon. William H. Pauley, III United States District Judge
On August 10, 1999, Ralph Tortorici committed suicide while in the
custody of the New York State Department of Correctional Services
("DOCS") at Sullivan Correctional Facility. Plaintiffs, the estate and
survivors of Ralph Tortorici, initially sued the Commissioner of DOCS,
the Commissioner of the New York State Office of Mental Health, and
various mental health practitioners alleging that they were deliberately
indifferent to Tortorici's severe mental illness. Plaintiffs now seek to
amend the complaint to add claims against Corrections Officer Keith
Krause, Corrections Officer John Skinner, and Nurse Cynthia Murphy for
failing to provide cardie-pulmonary resuscitation ("CPR") after
Tortorici's body was discovered. The proposed amended complaint also
contains new claims against the Commissioner of DOCS, Glenn S. Goord,
based on DOCS's policies and procedures relating to emergency medical
treatment. For the reasons below, plaintiffs' motion should be denied.
Ralph Tortorici had a long history of mental illness that was known to
DOCS. See Final Report of the New York State Commission of
Correction, dated June 23, 2000 ("COC Report")
(annexed as Ex. 11 to Declaration of Joan Magoolaghan, filed August
11, 2003 (Docket #33) ("Magoolaghan Decl.")), ¶¶ 3-6 (detailing
Tortorici's contacts with the mental health system, including four
inpatient hospitalizations during his incarceration). Tortorici was last
seen alive in his prison cell at 4:32 a.m. on August 10, 1999.
Id. ¶ 10. At 4:47 a.m., Corrections Officer ("CO") Krause
found Tortorici hanging by his neck from a sheet in his cell.
Id. ¶¶ 1, 10; New York State Police Investigation Report
("Police Report") (annexed as Ex. 7 to Magoolaghan Decl.), Continuation
Sheet ¶ 5. Security and medical staff-including CO Skinner and Nurse
Murphy responded to the "code blue" emergency. COC Report ¶
10; Police Report, Continuation Sheet ¶¶ 11, 20.
A police investigator interviewed CO Krause on the day of the suicide
and noted in the report:
On 8/10/99 Member interviewed CO Krause who stated
that he is assigned as the E North Block rover and
is responsible for completing rounds to check on
inmates locked in their cell. [CO Krause] stated
that he completed rounds all evening and the last
round completed without incident was at 4:32 a.m.
. . . [CO Krause] then started another round at
approximately 4:47 a.m. and located Inmate
Tortorici hanging in his cell. [CO Krause]
immediately radioed for assistance, requested the
control officer to open cell #143, and entered
cell #143. [CO Krause] lifted [Tortorici] slightly
where [CO Krause] was able to pull the looped
sheet off the clothing shelf and lower [Tortorici]
to the floor. [CO Krause] then slipped the loop
from around [Tortorici's] neck. The response team
started to arrive and evaluated [Tortorici].
Police Report, Continuation Sheet ¶ 5. The investigator also
interviewed CO Skinner:
On 8/10/99 Member interviewed CO John Skinner who
stated that he responded to the code blue medical
emergency and found CO Krause kneeling next to
[Tortorici]. CO Skinner checked [Tortorici] for
breathing and a pulse with negative results. A
short time later, RN Murphy arrived and assessed
[Tortorici] for vital signs with negative results.
Id. ¶ 20. As for Nurse Murphy, the report indicated:
On 8/10/99 Member interviewed RN Cynthia Murphy
who stated that she responded to the code blue
medical emergency. Upon arrival RN Murphy found
[Tortorici] lying on his back with his head toward
the cell door. [Tortorici's] eyes were partially
open and there was no radial or carotid pulse. RN
Murphy used a stethoscope and was unable to hear
any heart rate. RN Murphy rolled [Tortorici] and
noticed blanching of the shoulders which is a sign
of obvious death. Lividity was also setting in.
Because of these indications, no resuscitation
efforts were started.
Id. ¶ 11. The COC Report stated that Nurse Murphy's
failure to commence CPR "violated a departmental directive." COC Report
Plaintiffs filed the complaint in this action on July 12, 2002.
See Complaint, filed July 12, 2002 (Docket #1). They filed a
First Amended Complaint on August 1, 2002. See First Amended
Complaint, filed August 1, 2002 (Docket #2). The First Amended Complaint
alleges that Tortorici's suicide was the result of a failure to provide
adequate and appropriate psychiatric care. See id
¶¶ 1, 14-91. No allegations were made regarding any lack of
resuscitation efforts. CO Krause, CO Skinner, and Nurse Murphy were not
named as defendants. Plaintiffs now argue that they learned new facts
during discovery that support claims for deliberate indifference against
these defendants as well as additional claims against Commissioner Goord.
See Plaintiffs' Memorandum of Law in Support of Motion to Add
Parties, filed August 11, 2003 (Docket #32) ("PL Mem."), at 1-2.
Plaintiffs devoted the bulk of their initial moving papers to two
potential defenses that they expected would be raised by the proposed
defendants: the statute of limitations, see PL Mem. at 11-16,
and qualified immunity, id. at 16-25. With respect to the first
issue, plaintiffs argued that the claims they propose adding are not
time-barred because the causes of action did not accrue until the
plaintiffs discovered the alleged wrongful conduct or, alternatively,
statute of limitations should be equitably tolled because
information critical to asserting the causes of action was in the sole
control of defendants and not discovered despite plaintiffs' diligent
efforts. See id. at 12-15. On the second issue, plaintiffs
argued that the proposed defendants are not entitled to qualified
immunity because the right to adequate medical care for serious medical
needs was clearly established and no reasonable jury could find that it
was objectively reasonable for the defendants to do nothing to attempt to
save Tortorici's life under the circumstances. See id. at
20-25. As expected, defendants responded that the applicable statute of
limitations and the qualified immunity doctrine render the proposed
amendment futile. See Defendants' Opposition to Plaintiffs'
"Motion to Add Parties," filed September 2, 2003 (Docket #42) ("Def.
Mem."), at 4-23. Both the plaintiffs' moving papers and the defendants'
opposition papers annexed extensive evidence, including deposition
transcripts and documentary evidence. See Magoolaghan Dec!.;
Declaration of Thomas W. White, filed August 11, 2003 (Docket #33)
("White Decl."); Declaration of Daniel Schulze, filed September 2, 2003
(Docket #43) ("Schulze Decl."); Reply Declaration of Joan Magoolaghan,
filed September 5, 2003 (Docket #45) ("Magoolaghan Reply Decl."). The
plaintiffs alone submitted a total of 43 separate exhibits.
In addition, plaintiffs submitted another proposed second amended
complaint with their reply papers that included factual allegations
relating to their argument that the existence of their cause of action
had been fraudulently concealed. See Proposed Second Amended
Complaint (Revised) ("Proposed Am. Compl.") (annexed as Ex. 32 to
Magoolaghan Reply Decl.), ¶¶ 81-100. As a result, the Court allowed
defendants to submit a supplemental memorandum of law in response and
allowed plaintiffs to reply to that submission. See Defendants'
Memorandum of Law in Opposition to Plaintiffs' "Motion to Add
Parties," filed October 3, 2003 (Docket #48) ("Def. Supp. Mem.");
Plaintiffs' Supplemental Memorandum of Law in Support of Motion to Add
Parties, filed October 9, 2003 (Docket #49) ("Pl. Supp. Mem."). The
motion to amend has now been fully briefed.
Because the Court concludes that the defendants are entitled to
qualified immunity and that the proposed amendment to the complaint is
therefore futile, the motion to amend should be denied. It is thus
unnecessary to reach the parties' arguments regarding the statute of
A. Law Governing a Motion to Amend
Fed.R.Civ.P. 15(a) provides that leave to amend "shall be freely
given when justice so requires." Nonetheless, leave to amend may be
denied where the proposed amendment would be "futil[e]." Foman v.
Davis, 371 U.S. 178, 182 (1962). A proposed amendment is futile when
it fails to state a claim. See Health-Chem Corp. v. Baker,
915 F.2d 805, 810 (2d Cir. 1990). Thus, it is settled that a court may deny
leave to file a proposed amended complaint where "`it appears beyond
doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief" Riciutti v. N.Y.C. Transit
Auth., 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46 (1957)). Where a plaintiff has submitted
a proposed amended complaint, the court "may review that pleading for
adequacy and need not allow its filing if it does not state a claim upon
which relief can be granted." Id.
Normally, a motion to amend is adjudicated without resort to any
outside evidence. See Nettis v. Levitt, 241 F.3d 186, 194 n.4
(2d Cir. 2001) ("Determinations of futility [of amendment] are made under
the same standards that govern Rule 12(b)(6) motions to dismiss.");
see also Cosmas v. Hassett, 886 F.2d 8, 13 (2d Cir. 1989)
("On a motion to dismiss, the district court must limit itself to a
consideration of the facts alleged on the face of the complaint and to
any documents attached as exhibits or incorporated by reference."
(citations omitted)). This case presents the unusual situation, however,
where the plaintiffs themselves have chosen not to rely on the bare
allegations of the proposed pleading (the sufficiency of which neither
side has addressed) but instead have presented extensive extrinsic
evidence to justify its filing. As already noted, it was plaintiffs
not defendants who first raised the issues of qualified
immunity and the statute of limitations in their motion papers.
See PL Mem. at 11-25. More significantly, it was plaintiffs who
first submitted evidence outside the record, consisting of dozens of
exhibits. See Magoolaghan Decl. Defendants have responded in
kind by also submitting and relying on evidence outside the pleadings in
opposing the motion. See Schulze Decl.
Neither party has objected to the other's submitting such evidence and
both rely heavily on the outside evidence in making their arguments. In
addition, the plaintiffs have not asserted that any additional discovery
is being sought with respect to the matters raised in the amended
complaint. See Magoolaghan Decl. ¶ 29 ("plaintiffs do not
anticipate any further discovery relating to the claims set forth
against" the proposed new defendants). As a consequence, plaintiffs
obviously seek to have the Court's judgment on the futility of the
proposed amended complaint rise or fall depending on whether the proposed
amended complaint could withstand a motion for summary judgment
either on the basis of the statute-of-limitations bar or qualified
This manner of proceeding, while unusual, finds support in cases in
which courts have looked outside the pleadings in order to determine
whether an amended complaint is futile. See, e.g., Milanese v.
Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001) (summary
judgment standard applied where motion to amend was made in response to
summary judgment motion); Health-Chem, 915 F.2d at 810 (same);
Stoner v. N.Y.C. Ballet Co., 2002 WL 523270, at *14 n.10
(S.D.N.Y. Apr. 8, 2002) (denying motion to amend seeking to add claim
which "might survive a motion to dismiss" but would "immediately be
subject to dismissal on a motion for summary judgment"). This procedure
is also analogous to, and consistent with, a court's conversion of a
motion to dismiss into one for summary judgment where the parties have
presented evidence outside the pleadings and are aware that the court
intended to rely on such evidence. See, e.g., In re G. & A.
Books. Inc., 770 F.2d 288, 295 (2d Cir. 1985) ("A party cannot
complain of lack of a reasonable opportunity to present all material
relevant to a motion for summary judgment when both parties have filed
exhibits, affidavits, counter-affidavits, depositions, etc. in support of
and in opposition to a motion to dismiss."), cert. denied,
475 U.S. 1015 (1986); accord Groden v. Random House, Inc.,
61 F.3d 1045, 1052-53 (2d Cir. 1995); see also Fed.R.Civ.P. 12(b).
Accordingly, the Court will accept the plaintiffs' invitation to judge
the proposed complaint based on whether it could survive a motion for
summary judgment from defendants on the issue of qualified immunity or
the statute of limitations. In other words, for purposes of gauging
whether the proposed amendment is "futile," the Court will consider
whether there is an absence of a "genuine issue as to any material fact"
on these issues such that the defendants would be "entitled to a judgment
as a matter of law" under Fed.R.Civ.P. 56(c).
B. Summary Judgment Standard
On a motion for summary judgment, all factual inferences must be drawn
in favor of the non-moving party. See, e.g., Savino v. City of New
York, 331 F.3d 63, 71 (2d Cir. 2003) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). While the plaintiffs
are the movant with respect to the motion to amend, the defendants are in
a position equivalent to that of a party moving for summary judgment
inasmuch as it is their burden to show affirmatively that they are
entitled to qualified immunity. See, e.g., Crawford-El v.
Britton, 532 U.S. 574, 587 (1998). Thus, the Court draws all factual
inferences in favor of the plaintiffs. However, to survive a motion for
summary judgment, the plaintiffs "must come forward with `specific facts
showing that there is a genuine issue for trial.'" Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (emphasis
omitted) (quoting Fed.R.Civ.P. 56(e)). "Conclusory allegations,
conjecture, and speculation . . . are insufficient to create a genuine
issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d
Cir. 1998) (citation omitted). Thus, the ...