United States District Court, W.D. New York
April 18, 2005.
RAYMOND CLAIR CIMINO, Plaintiff,
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
DECISION AND ORDER
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
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. 2000). Accordingly, insofar as plaintiff seeks to amend the complaint to name as defendants the RPD and Duffy in
his official capacity, plaintiff's motion is denied.
As to plaintiff's claim against Duffy in his individual
capacity, plaintiff's motion for leave to amend is granted.
Although the statute of limitations has run on plaintiff's § 1983
claim, Rule 15 of the Federal Rules of Civil Procedure permits a
plaintiff, under certain circumstances, to amend his complaint to
change or add a defendant after the statute of limitation has
run. Davidson v. Conway, 318 F.Supp.2d 60, 62 (W.D.N.Y. 2004).
In particular, Rule 15(c) provides that "[a]n amendment of a
pleading relates back to the date of the original pleading when
. . . 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," and
the amendment changes the party or the naming of the
party against whom a claim is asserted . . . 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 in 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.
Here, the claim against Duffy clearly arises out of the
occurrence that was set forth in the original pleading, i.e.
the shooting of plaintiff. In addition, the original complaint
mentioned Duffy by name, and alleged that he "specifically
approved" of Glaze's and Marcano's actions. Duffy is also deemed
to have been on notice of plaintiff's lawsuit, since he and the
City have an identity of interest. See, e.g., Jacobsen v.
Osborne, 133 F.3d 315
, 320 (5th Cir. 1998) (city and police
officers had sufficient identity of interest in false arrest case
to permit relation back of amended complaint naming officers as
defendants); O'Brien v. City of Grand Rapids, 783 F.Supp. 1034,
1039 (W.D.Mich. 1992) (relationship between original defendants
city and specific police officers and proposed defendants chief of police and police sergeant was
sufficiently close to support finding that proposed defendants
had relatively prompt notice of contents of complaint at time it
In addition, although at first blush there might seem to be no
"mistake" here concerning Duffy's identity, courts have not
construed the term "mistake" in Rule 15 so narrowly. Rather, they
have held that the "mistake" prerequisite should not be limited
to cases of misnomer, but rather should be applied with an eye
toward whether "the new party's awareness that failure to join it
was error rather than a deliberate strategy." In re Integrated
Resources Real Estate Securities Litigation, 815 F.Supp. 620,
644 (S.D.N.Y. 1993) (quoting Advanced Power Sys., Inc. v.
Hi-Tech Sys., Inc., 801 F.Supp. 1450 (E.D.Pa. 1992)); see also
Koal Indus. Corp. v. Asland, S.A., 808 F.Supp. 1143, 1157
(S.D.N.Y. 1992) (stating that "Rule 15(c) is not limited to
[literal] mistakes," and that it "has been given a much broader
reading" than misnomer); Sounds Express Int'l Ltd. v. American
Themes and Tapes Inc., 101 F.R.D. 694, 697 (S.D.N.Y. 1984) ("the
rule clearly covers not only cases where a party has been
misnamed or misdescribed, but also cases where there exists `a
possibility that the plaintiff may have made a mistake in
selecting the original defendants"); 3 James Wm. Moore, Moore's
Federal Practice ¶ 15.19[d] (3d ed. 2005) ("A court should
allow an amendment to relate back to add a defendant that was not
named at the outset, but was added later when plaintiff realized
that the defendant should have been named . . .").
In this case, the original complaint did contain allegations of
wrongdoing by Duffy, even though he was not actually named as a
defendant. Particularly since the original complaint was filed
while plaintiff was pro se, I find that this is sufficient to
constitute a "mistake" for purposes of Rule 15(c). I realize that plaintiff's counsel filed their notice of
appearance on March 4, 2004, over four months prior to the
expiration of the three-year limitations period. I see no
indication of bad faith on counsel's part, however, and, most
importantly, no reason to think that defendants will be
prejudiced by permitting the amendment. See Commander Oil Corp.
v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir.) ("Parties are
generally allowed to amend their pleadings absent bad faith or
prejudice"), cert. denied, 531 U.S. 979 (2000); Block v. First
Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) ("Mere delay,
. . . absent a showing of bad faith or undue prejudice, does not
provide a basis for a district court to deny the right to amend")
(internal citations and quotes omitted).*fn1
III. Claims Against John Doe Defendants
Plaintiff's motion to add several John Doe defendants, however,
must be denied. The law in the Second Circuit is clear that
Rule 15(c) does not allow an amended complaint adding
new defendants to relate back if the newly-added
defendants were not named originally because the
plaintiff did not know their identities. Rule 15(c)
explicitly allows the relation back of an amendment
due to a "mistake" concerning the identity of the
parties (under certain circumstances), but the
failure to identify individual defendants when the
plaintiff knows that such defendants must be named
cannot be characterized as a mistake. Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 470 (2d Cir.
1995), as modified, 74 F.3d 1366 (2d Cir. 1996). See also
Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (rule
applies "even when a suit is brought by [a] pro se litigant").
Thus, even if plaintiff had named the John Doe defendants in
the original complaint, he could not now timely amend the
complaint to add them by name. It would plainly be futile, then,
to allow him to amend the complaint now to add any John Doe
defendants, since any subsequent amendment identifying them by
name would also be untimely.
IV. Addition of New Claims and Increase in Ad Damnum
With one exception, the Court will permit plaintiff to amend
the complaint to add new causes of action. Count II of the
proposed amended complaint purports to assert a due process claim
against Glaze and Marcano under the Fifth Amendment to the United
States Constitution. The Fifth Amendment only applies to the
states through the Fourteenth Amendment, however, see Ingraham
v. Wright, 430 U.S. 651, 672-73 (1977), and since Count III
asserts an otherwise identical claim under the Fourteenth
Amendment, Count II would be subject to dismissal as duplicative
of Count III. See Cosby v. City of Oakland, No. C-97-0267, 1997
WL 703776, at *5 (N.D.Cal. 1997) ("any Fifth Amendment claim is
merely duplicative of the Fourteenth Amendment claims and, thus,
is dismissed"). The other additional claims, however, all arise
out of the same incident as the one set forth in the original
complaint, see Fed.R.Civ.P. 15(c)(2), and will therefore be
As to the damage request, courts have held that an amendment
increasing the amount of claimed damages should generally be
allowed, absent some demonstrable prejudice to the defendant, which I do not see here. See, e.g., Camar Corp. v. Preston
Trucking, Inc., No. CIV.A.96-40092, 1997 WL 345791, at *3
(D.Mass. June 20, 1997); Pesce v. General Motors Corp.,
939 F.Supp. 160, 166 (N.D.N.Y. 1996); Judy-Philippine Inc. v. S/S
Verazano Bridge, 805 F.Supp. 185, 187 (S.D.N.Y. 1992); cf. Ross
v. Global Bus. Sch., Inc., No. 99 CIV. 2826, 2001 WL 1006656, at
*7-8 (S.D.N.Y. Aug. 30, 2001) (leave to amend denied where
discovery had been closed for a year, and amendment to increase
damage request would require reopening of discovery related to
alleged increase in plaintiff's lost wages). That amendment will
also be allowed.
Defendants' motion to dismiss (Dkt. #12) is granted in part and
denied in part. Defendants' motion to dismiss plaintiff's claims
against Robert Duffy in his official capacity, against the
Rochester Police Department, and against the "John Doe"
defendants is granted, and those claims are dismissed.
Defendants' motion to dismiss Count II of the amended complaint
is also granted, and that cause of action is dismissed. In all
other respects, defendants' motion is denied.
Plaintiff's motion for leave to file an amended complaint (Dkt.
#16) is granted in part and denied in part. Plaintiff is hereby
directed to file a second amended complaint within fifteen (15)
days of the date of entry of this Decision and Order. The second
amended complaint may assert all of the claims asserted in the
amended complaint (Dkt. #11), with the exception of the claims
that have been dismissed by the Court, as recited in the
IT IS SO ORDERED.