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January 29, 2004.

BERNADETTE DIPACE, et al, Plaintiffs, -v.- GLENN S. GOORD, et al., Defendants

The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge


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") Page 2 (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: Page 3
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 ¶ 11.

  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, that the Page 4 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' Supplemental Page 5 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 limitations.


  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."); Page 6 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 immunity. Page 7

  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). Page 8

  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 ...

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