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April 18, 2005.

MARK GLAZE, individually and in his capacity as police officer for the City of Rochester, et al., Defendants.

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Plaintiff, Raymond Cimino, commenced this action on November 18, 2002, asserting claims under 42 U.S.C. § 1983 and state law against the City of Rochester ("the City") and two Rochester police officers, Mark Glaze and Michael Marcano. Plaintiff's claims arise out of an incident that occurred on July 26, 2001, when plaintiff was allegedly struck in the arm by a bullet fired by either Glaze or Marcano following a police chase of a truck being driven by plaintiff.

  The original, pro se complaint sets forth three causes of action: (1) what appears to be a claim for assault and battery under state law; (2) a Fourth Amendment excessive-force claim brought under § 1983 against Glaze and Marcano; and (3) a § 1983 excessive-force claim against the City. The third cause of action alleges, inter alia, that Glaze's and Marcano's "use of excessive force was done . . . pursuant to policy and/or custom of the City of Rochester and/or the City ratified their actions." Complaint ¶ 47. It also alleges that then-Rochester Police Chief Robert Duffy "specifically approved of the actions taken by the individual Defendants in this case, and specifically approved of their indiscriminate and wild shooting at the truck and its occupants. . . ." Complaint ¶ 49.

  On September 29, 2004, without obtaining leave of court, plaintiff, having retained counsel, filed an amended complaint. The amended complaint adds as defendants Duffy (in both his individual and official capacities), three police officer "John Doe" defendants, and the Rochester Police Department ("RPD"). The proposed amended complaint also asserts five causes of action: (1) a Fourth Amendment excessive-force claim against Glaze and Marcano; (2) a due process claim against Glaze and Marcano under the Fifth Amendment; (3) a due process claim against Glaze and Marcano under the Fourteenth Amendment; (4) a claim against Glaze and Marcano for assault and battery; and (5) a § 1983 claim against the City, RPD, and Duffy for failure to adequately train, supervise and discipline the defendant police officers, or to prevent the shooting of plaintiff. The amended complaint also increases the ad damnum clause from $450,000 compensatory and $300,000 punitive damages to $2,000,000 in compensatory damages, and an unspecified amount of punitive damages.

  Defendants then moved to dismiss the amended complaint on the ground that the new claims, and claims against new defendants, are barred by the three-year statute of limitations for § 1983 actions. See Patterson v. County of Oneida, New York, 375 F.3d 206, 225 (2d Cir. 2004) (statute of limitations applicable to claims brought under § 1983 in New York is three years). Plaintiff responded by moving for leave to amend the (original) complaint.

  Since defendants answered the complaint in December 2002, plaintiff could not properly file an amended complaint without first obtaining leave of court. See Youn v. Track, Inc., 324 F.3d 409, 416 (6th Cir. 2003) ("pursuant to [Rule 15], once the defendant has served a responsive pleading, a party may amend his complaint only by leave of court or with the consent of the adverse party"). I therefore will treat defendants' motion to dismiss as their opposition to plaintiff's belated motion for leave to amend.


  I. Leave to Amend — General Standards

  Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading "shall be freely given when justice so requires." The Second Circuit has stated that "justice does so require unless the [movant] is guilty of undue delay or bad faith or unless permission to amend would unduly prejudice the opposing party." S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979).

  The purpose of Rule 15(a) is to encourage disposition of litigation on the merits, rather than on procedural technicalities. Sanders v. Thrall Car Mfg. Co., 582 F.Supp. 945, 952 (S.D.N.Y. 1983), aff'd, 730 F.2d 910 (2d Cir. 1984). The Rule has been liberally interpreted by the Second Circuit, which has stated that it is "rare" that leave should be denied, especially when there has been no prior application to amend. Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). See also Kaster v. Modification Systems, Inc., 731 F.2d 1014, 1018 (2d Cir. 1984) (as long as the movant has "at least colorable grounds for relief, justice does . . . require leave to amend").

  A court may deny leave to amend, however, where the amended pleading is considered futile. Foman, 371 U.S. at 182; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) ("[u]ndue delay and futility of the amendment, among other factors, are reasons to deny leave"); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) ("where . . . there is no merit in the proposed amendments, leave to amend should be denied"). An amendment is considered futile if the amended pleading fails to state a claim or would be subject to a motion to dismiss on some other basis. Dougherty v. Town of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); McKinney v. Eastman Kodak Co., 975 F.Supp. 462, 465 (W.D.N.Y. 1997).

  II. Claims Against Duffy and the RPD

  Before addressing the limitations issue, I note that to the extent that Duffy is sued in his official capacity, the claims against him are essentially claims against the City, so adding him as a defendant would change nothing. See Brandon v. Holt, 469 U.S. 464, 472 (1985). Likewise, plaintiff's claims against the RPD are in effect claims against the City. See Walker v. New York City Police Dep't, No. 94 CV 3608, 1996 WL 391564, at *5 (E.D.N.Y. June 24, 1996) (holding that police department was not proper party to § 1983 action, and substituting city as defendant), aff'd, 205 F.3d 1327 (table), 2000 WL 233701 (2d Cir. ...

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