United States District Court, E.D. New York
May 13, 2004.
ROSE COLOMBO, Plaintiff, -against- S.C. DEPARTMENT OF SOCIAL SERVICES, SUFFOLK COUNTY POLICE DEPARTMENT, and SUFFOLK COUNTY CORRECTIONAL FACILITY, Defendants
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
Presently before the Court are (1) a motion by the Suffolk County
Department of Social Services ("DSS"), the Suffolk County Police Department ("Police
Department") and the Suffolk County Correctional Facility ("Correctional
Facility") (collectively, the "defendants") for summary judgment
dismissing the complaint and (2) a motion by Rose Colombo ("Colombo" or
the "plaintiff") to add several individuals as named defendants.
A. Factual Background
The following facts are taken from the complaint. The plaintiff claims
that, on October 12, 1999, Luz Adamas had the plaintiff evicted from 48
Applegate Drive, a home which was apparently operated by DSS, in Central
Islip, New York. According to the plaintiff, she was evicted because she
complained about "the overcrowding in the home, the lack of toilet paper
and the fact that Mrs. Adamas had three mentally ill men sleeping on
mattresses which were placed on the floor."
On October 15, 1999, the plaintiff sought emergency housing from DSS.
However, instead, the plaintiff claims that DSS had her falsely
arrested. She further claims that the arresting police officer was Bill
Doherty and that he was aware that it was a false arrest. The following
day, the plaintiff claims that, without provocation, she was attacked by
Correction Officer Linda DeBorn and two other officers. As a result of
the attack, the plaintiff suffered a torn cartilage in both of her knees
and a "trigger thumb." In addition, Colombo claims that DeBorn submitted a false intake report in which she stated that the
plaintiff was a mental patient and was off her medication at the time of
B. Procedural History
On August 8, 2000, the plaintiff commenced this action for false arrest
and assault. The only defendants named in the action were DSS, the Police
Department, and the Correctional Facility. On January 20, 2004, the
parties appeared before the Court for jury selection. At that time, the
Court informed the plaintiff that she had failed to name any individual
defendants in her complaint. The Court further informed her that the
statute of limitations had run on her Section 1983 action. The Court
directed her to file a motion to add new defendants pursuant to the
relation back doctrine.
Based on the Court's direction, the plaintiff now seeks to add the
following individuals: Janet Demarzo, Commissioner for DSS, Richard
Dormer, Commissioner of the Police Department, Sheriff Alfred C. Tisch,
Police Officer Christopher Talt, Police Officer William J. Doherty,
Police Officer James J. Cullen, Correction Officer Linda Besold,
Correction Officer Trish Cardaci, Sergeant John Krieg, John B. Wingate,
Commissioner of DSS, and Robert Wiederhold, the head of security at DSS.
In addition, the defendants move for summary judgment dismissing the
complaint in its entirety.
II. DISCUSSION A. The Defendants' Motion for Summary Judgment
The Court notes that the defendants' motion for summary judgment does
not include a notice to pro se litigants, as required by Local Rule 56.2
and Vital v. Interfaith Medical Ctr., 168 F.3d 615, 620-21 (2d Cir.
1999). The plaintiff's opposition papers indicate that she does not have
a clear understanding of her burden in opposing summary judgment. Because
of the procedural error, the defendants' motion for summary judgment is
denied without prejudice. B. The Plaintiff's Motion to Add Individual
Although the complaint does not cite to 42 U.S.C. § 1983, the Court
assumes that, because the action is against several government agencies,
the plaintiff seeks to bring this action pursuant to Section 1983.
Actions brought pursuant to Section 1983 are subject to a three-year
statute of limitations. Morse v. University of Vt., 973 F.2d 122, 126 (2d
Cir. 1992). It appears that the plaintiff concedes that her time to add
these additional defendants has already expired. As such, the plaintiff
must demonstrate the amendment to include the individual defendants
"relates back" to the date she filed the original complaint. See
Relation back of amendments to the date of the original complaint is
governed by Rule 15(c) of the Federal Rules of Civil Procedure which
provides, in part, that the amendment relates back when:
(2) the claim or defense asserted in the amended
pleading arose out of the conduct, transaction, or
occurrence set forth or attempted to be set forth
in the original pleading, or
(3) the amendment changes the party or the naming of
the party against whom a claim is asserted if the
foregoing provision (2) is satisfied and, within the
period provided by Rule 4(m) for service of the
summons and complaint, the party to be brought in by
amendment (A) has received such notice of the
institution of the action that the party will not be
prejudiced ii maintaining a defense on the merits, and
(B) 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.
Rule 15 provides for relation back where the party to be added as a
defendant would have been named in the original complaint but for a
"mistake concerning the identify of the proper party." Fed.R.Civ.P.
15(c)(3). The Second Circuit has held that a "mistake" in identifying a
defendant occurs for purposes of Rule 15(c) when it is the result of
"misnomer or misidentification," or when a plaintiff omits the individual
defendant altogether in the erroneous belief that suing a government
department will suffice. Barrow v. Wethersfield Police Dep't, 66 F.3d 466,
469-70 (2d Cir. 1995). However, the relation-back doctrine does not apply
where the defendants were not originally named merely "because plaintiff
did not know their identities." Tapia-Ortiz v. Does, 171 F.3d 150
, 152 (2d Cir. 1999).
At the January 20, 2004 conference, the plaintiff explained that she
did not name any individual defendants because she did not know their
identities and that the municipal defendants withheld their names. As
previously mentioned, the relation-back doctrine is inapplicable if the
defendants were not originally named "because plaintiff did not know
their identities." Tapia-Ortiz v. Does, 171 F.3d 150, 152 (2d Cir.
1999). As such, because she failed to add the new names not due to a
mistake but to her lack of knowledge, the requirements for the
relation-back doctrine are not met. See Barrow, 66 F.3d at 670 (2d Cir.
However, with regard to Police Officer William Doherty and Correction
Officer Linda Besold, the Court finds that the plaintiff's failure to
name these two individuals can be characterized as a "mistake" pursuant
to Rule 15. In the complaint, the plaintiff identifies one "Bill Doherty"
as the police officer who allegedly falsely arrested her and one "Linda
DeBorn" as the correction officer who allegedly attacked her on October
16, 1999. The Court assumes that the plaintiff's reference to "Linda
DeBorn" in the complaint was meant to refer to Linda Besold, the
individual whom the plaintiff now seeks to add as a defendant. Based on
the complaint, it is clear that the plaintiff knew the identities of
these individuals. In the Court's view, Colombo neglected to name these
individuals based on the mistaken belief that she did not have to do so.
The Court must next determine whether Police Officer William Doherty
and Correction Officer Linda Besold received timely notice of the action
so as to avoid prejudice in defense of this action on the merits. See
Fed.R.Civ.P. 15(c)(3). Knowledge of the pendency of an action may be
imputed to a party to be added as a defendant to that action where there
has been "some showing that the proposed defendant's attorney knew that
the additional defendant would be added to the existing suit." Gleason
v. McBride, 869 F.2d 688, 693 (2d Cir. 1989). Here, as the attorneys for
Police Officer William Doherty and Correction Officer Linda Besold, the
Suffolk County Attorney's Office should have known that, despite the
deficiencies in the original complaint, these individuals officers should
have been named, and would be added when the mispleading became evident.
Accordingly, the plaintiff's motion to add Police Officer William Doherty
and Correction Officer Linda Besold as defendants is granted.
Based on the foregoing, it is hereby
ORDERED, that the defendants' motion for summary judgment to dismiss
the complaint in its entirety is DENIED without prejudice; and it is
ORDERED, that the plaintiff's motion to add individual defendants is
DENIED as to Janet Demarzo, Commissioner for DSS, Richard Dormer, Commissioner of
the Police Department, Sheriff Alfred C. Tisch, Police Officer
Christopher Talt, Police Officer James J. Cullen, Correction Officer
Trish Cardaci, Sergeant John Krieg, John B. Wingate, Commissioner of
DSS, and Robert Wiederhold, the head of security at DSS, and GRANTED as
to Police Officer William Doherty and Correction Officer Linda Besold;
and it is further
ORDERED, that jury selection is adjourned from May 24, 2004 to August
23, 2004 and that the parties are directed to appear on August 23, 2004,
at 9:00 A.M., at the Long Island Federal Courthouse, 1024 Federal Plaza,
Central Islip, New York 11722, in Room 1020; and it is further
ORDERED, that the plaintiff is directed to serve a summons and an
amended complaint with a new caption on Police Officer William Doherty
and Correction Officer Linda Besold; and it is further
ORDERED, that the caption of the complaint shall be amended as
follows: SO ORDERED.
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