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United States District Court, E.D. New York

January 7, 2005.

OFIDIO BONILLA (a/k/a Juan Calderon), Plaintiff,
JANOVICK,[fn1] Correctional Officer, Shield # 341, JOHN DOE #1, Correctional Officer, and JOHN DOE #2, Correctional Officer, Defendants.

The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge

*fn1 The correct spelling of this defendant's last name is Jaronczyk.


I. Introduction

  Plaintiff Ofidio Bonilla ("plaintiff" or "Bonilla") brought this action pursuant to 42 U.S.C. § 1983, alleging that defendant John Jaronczyk ("defendant") and two other unnamed correctional officers of the Nassau County Correctional Center violated his Eighth Amendment rights by using excessive force against him. Defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("Fed.R.Civ.P.").

  II. Background

  Although defendant raised several affirmative defenses in his answer filed on September 17, 2001, he did not plead that plaintiff had failed to exhaust his administrative remedies as presently required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).*fn2 (Answer at 1-2). At the time the answer was filed, the law in the Second Circuit was that the PLRA "governs only conditions affecting prisoners generally, not single incidents that immediately affect only particular prisoners, such as corrections officers' use of excessive force." Porter v. Nussle, 534 U.S. 516, 520, 152 L. Ed. 2d 12, 122 S. Ct. 983 (2002). However, in February 2002, the Supreme Court overruled the Second Circuit and held that "the PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Id. at 532. Since Porter is applied retroactively in all pending actions, it is applicable to the instant case. Webb v. Goord, 340 F.3d 105, 112 (2d Cir. 2003), cert. denied, 540 U.S. 1110, 124 S. Ct. 1077, 157 L. Ed. 2d 897 (2004); Lawrence v. Goord, 304 F.3d 198, 200 (2d Cir. 2002) (per curiam).

  Despite the Supreme Court's holding, defendant did not seek leave to amend his answer. Over the next two years, the parties engaged in discovery, which Magistrate Judge Boyle certified as complete on May 25, 2004. (Docket No. 25). In October 2004, defendant moved for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies. (Def.'s Not. of Mot. for Summ. J.). However, exhaustion under the PLRA is not a jurisdictional requirement, but rather an affirmative defense that may be waived. Johnson v. Testman, 380 F.3d 691, 695 (2d Cir. 2004); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004). Pursuant to Fed.R.Civ.P. 8(c), a party "shall set forth" affirmative defenses in a responsive pleading. Fed.R.Civ.P. 8(c). The "[f]ailure to plead an affirmative defense in the answer results in the waiver of that defense and its exclusion from the case." U.S. for and on Behalf of Maritime Admin. v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir. 1989) (citations and internal quotations omitted).

  In his opposition, plaintiff claims, inter alia, that defendant waived the affirmative defense by failing to raise it sooner. (Pl.'s Mem. of Law in Opp'n to Mot. for Summ. J. at 2). Now, in his reply papers submitted thirty-two (32) months after the Supreme Court's holding in Porter, defendant seeks leave to amend his answer to include the affirmative defense of failure to exhaust administrative remedies. (Def.'s Reply Mem. of Law in Supp. of Mot. for Summ. J. at 2).

  III. Analysis

  Although defendant has not filed a motion to amend, the Court has the discretion to treat defendant's motion for summary judgment as a motion to amend his answer to plead the affirmative defense of failure to exhaust. Abney v. County of Nassau, 237 F. Supp. 2d 278, 280 (E.D.N.Y. 2002); Boston v. Takos, No. 98-6404, 2002 WL 31663510, at *3 (W.D.N.Y. Oct. 4, 2002). Motions to amend pleadings are governed by Fed.R.Civ.P. 15(a), which states that leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Accordingly, leave to amend is generally granted unless the amendment: (1) has been unduly delayed; (2) is sought for dilatory purposes or is made in bad faith; (3) would cause undue prejudice to the opposing party; or (4) would be futile. Hightower v. Nassau County Sheriff's Dep't, 325 F. Supp. 2d 199, 204 (E.D.N.Y. 2004) (citing Forman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 (1962)).

  Although Porter v. Nussle was decided in February 2002, defendant did not seek leave to amend his answer to add the affirmative defense until October 2004. Moreover, defendant never filed a motion to amend, but rather moved for summary judgment on the basis of an affirmative defense that he did not plead in his answer. Only upon receiving plaintiff's opposition papers did defendant seek leave to amend in his reply papers. Although defendant has not provided any justification for the thirty-two (32) month delay between the Porter decision and the recent request to amend his answer, delay unaccompanied by undue prejudice or bad faith does not usually warrant denial of leave to amend. Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995).

  When determining whether the opposing party would suffer undue prejudice, courts consider whether leave to amend would: "[1] require the opponent to expend significant additional resources to conduct discovery and prepare for trial; [2] significantly delay the resolution of the dispute; or [3] prevent the plaintiff from bringing a timely action in another jurisdiction." Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993).

  In any event, I find that granting the amendment would be prejudicial to plaintiff. If defendant were permitted to amend his answer at this late stage of the proceedings, plaintiff would be forced to expend additional resources and resolution of the action, now pending more than three (3) years, would be delayed, and since plaintiff's hospitalization and physical injuries may have prevented the filing of an administrative complaint, further discovery and additional depositions would be needed to determine whether the admitted failure to exhaust should nevertheless be excused. See Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (noting that "special circumstances" may excuse a prisoner's failure to exhaust). Thus, plaintiff would have expended additional resources on motion practice and discovery and resolution of the action would have been further delayed. Accordingly, defendant's motion to amend is denied and the affirmative defense is deemed waived. See Thomas v. Keyser, No. 01-5615, 2004 WL 1594865, at *3 (S.D.N.Y. July 16, 2004) (denying defendants' motion for leave to amend in light of prejudice to plaintiff and twenty-one (21) month delay after Porter); Rodriguez v. McGinnis, No. 98-6031, 2004 WL 1145911, at *14 (W.D.N.Y. May 18, 2004) (denying defendants' motion for leave to amend in light of prejudice to plaintiff and nineteen (19) month delay after Porter); see also Leybinsky v. Millich, No. 98-0387, 2004 WL 2202577, at *2 (W.D.N.Y. Sept. 29, 2004) (finding that defendants waived defense of failure to exhaust since it was not raised it until after discovery was complete and the case was ready for trial). IV. Conclusion

  For the reasons set forth above, defendant's motion for summary judgment is DENIED. The parties are directed to appear in my courtroom at 1010 Federal Plaza, Central Islip, New York on January 19, 2005 at 11:30 a.m. for a settlement and/or scheduling conference with authority or persons with authority to resolve this action. Further, the parties are directed to engage in good faith settlement negotiations prior to the conference.


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