The opinion of the court was delivered by: SANDRA J. FEUERSTEIN, District Judge
*fn1 The correct spelling of this defendant's last name is
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.").
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
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).
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
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: "
require the opponent to expend significant additional resources
to conduct discovery and prepare for trial;  significantly
delay the resolution of the dispute; or  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 ...