The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Melvin Howard, pro se Plaintiff, moves to amend his Complaint to (1) add Captain Thompson to the caption of the Complaint, (2) substitute former Commissioner Bernard Kerik for the New York City Department of Correctional Services ("DOCS"), and, (3) substitute actual names for the various "John Doe" Defendants.*fn1 Defendants oppose Plaintiff's Motion primarily on the grounds that Plaintiff's claims are time barred and futile. For the reasons stated herein, Plaintiff's Motion is denied in part and granted in part.
Familiarity with the facts is presumed. In short, Plaintiff's claims stem from an alleged attack on Plaintiff by another inmate on February 7, 1999. Plaintiff claims that the "high classification" unit (i.e., the unit housing inmates known to have violent tendencies) in which he was housed was inadequately staffed to prevent inmate attacks and that he was denied adequate medical care in the days following the February 1999 incident.
Plaintiff named John Does #1-6 in his original Complaint. He initially expressed an interest in amending his complaint to Judge George B. Daniels, who was then presiding over the case. Judge Daniels instructed Plaintiff to amend his Complaint within thirty days of receiving the information from the City of New York ("the City") identifying the John Does. On September 30, 2003, Judge Daniels referred this case to Magistrate Judge Debra C. Freeman for general pretrial matters. On October 31, 2003, Defendants sent a letter to Plaintiff informing him that the remaining logbooks which could identify the two as-yet unidentified Does (Does #5 and #6) had been destroyed in a flood. (Letter from Liora Jacobi, Esq., July 26, 2006 at 1 ("Jacobi 7/26/06 Letter")) At a November 5, 2003 conference, Plaintiff stated to Magistrate Judge Freeman that he had known the identity of the first three or four John Does for "a year and change," and that he was waiting for the identity of the last two John Does. (Tr. 12, Nov. 5, 2003) At a later conference, the City confirmed that it had provided a witness report, an infraction report, and "a few other documents which identified the correction officers who were present at the time that this incident took place" to Howard on September 30, 2002. (Tr. 8, Feb. 24, 2004) Magistrate Judge Freeman urged Howard to substitute names "quickly" to avoid slowing the case down further. She did not, however, specifically warn Plaintiff about a potential statute of limitations issue that may arise if he did not amend or set a deadline for amending. (Tr. 12-13, Nov. 5, 2003)
At the November 5, 2003 conference, Magistrate Judge Freeman also raised the issue that Howard is an incarcerated pro se litigant who did not initially have the identity of the defendants, but who learned their identity through discovery produced by the City. (Tr. 14, Nov. 5, 2003). Magistrate Judge Freeman further stated that "if the motion is simply to replace John Does with the names of those John Does, and if the complaint made clear that John Doe number one is the officer on duty on such and such location on such and such a day or whatever, I would likely permit that type of amendment. It should have been done already, but it hasn't been. I would still likely permit it if there were really no surprises there." (Tr. 15, Nov. 5, 2003) Magistrate Judge Freeman ordered Plaintiff to mail a motion to amend his complaint (along with a motion to compel discovery) within two weeks of November 5, 2003.
On January 7, 2004, Magistrate Judge Freeman held a conference at which she stated that neither she nor Corporation Counsel had received either motion from Howard. At that point, the motions were seven weeks late. (Tr. 4, Jan. 7, 2004) Howard explained that he had failed to submit the motions because he was working on his criminal case. (Tr. 5, Jan. 7, 2004) Magistrate Judge Freeman warned Plaintiff that she could deny the relief Howard was seeking as untimely under her November 5, 2003 Order because Howard was "not at liberty to simply ignore the deadline simply because of [his] own personal priorities, even if those priorities are understandable." (Tr. 5, Jan. 7, 2004)
On April 8, 2004, Magistrate Judge Freeman held another conference. She informed Plaintiff she had still not received his motions. Howard explained that he did not have money to make copies of his papers. (Tr. 4, Apr. 8, 2004) Magistrate Judge Freeman then spoke with a counselor at the prison who stated that he would make the copies for Howard and mail the copies to the Court and to Corporation Counsel. (Tr. 8, Apr. 8, 2004) At that conference, Howard reiterated his demand for the names of the remaining two John Does. He also explained that Judge Daniels had given him permission to amend the complaint after he received the names of all John Does. (Tr. 10, Apr. 8, 2004) Magistrate Judge Freeman explained that her "usual practice when an amendment is merely to identif[y] John Does who are listed as such from the beginning," is to "allow the amendments unless there is some unusual circumstance not to." (Tr. 14, Apr. 8, 2004) She went on to say that "[i]t is also [her] usual practice to require the city to assist in identifying John Does." (Tr. 14, Apr. 8, 2004) Defendants' counsel informed the court that the documents which would permit the City to identify the two remaining John Does had, to her knowledge, been destroyed in a flood. (Tr. 15, Apr. 8, 2004) At the end of the conference, Defendants' counsel was ordered to send a letter to Plaintiff recounting the efforts she had made to identify the remaining John Does and specifying whether further information would be forthcoming or whether the documents had indeed been destroyed. (Tr. 19, Apr. 8, 2004) According to Magistrate Judge Freeman, to the extent that the City could not identify those officers, then Howard would have to proceed without them. (Tr. 17, Apr. 8, 2004) However, the letter counsel was to send to Plaintiff is not in the record and counsel was unable to locate it among her papers. (Jacobi 7/26/06 Letter 1)
On June 18, 2004, Magistrate Judge Freeman set a July 16, 2004 deadline for Howard to mail his motions to compel and to amend the complaint. (Tr. 5, June 18, 2004) In that reply, Howard was ordered to inform the court of whether and when Judge Daniels had issued an order pursuant to Valentin v. Dinkins, 121 F.3d 72, 76 (2d Cir. 1997) requiring the City to provide identifying information for the John Does. (Tr. 8, June 18, 2004) Howard was also ordered to provide the court with the date when he first learned the names that he had been seeking. (Tr. 8, June 18, 2004) The court never received that information.
At a September 21, 2004 conference, Magistrate Judge Freeman stated that she had provided Howard a two-week extension on his reply and that, as of the conference, she still had not received it. Howard stated that he had been unable to complete the reply because of "some other events that occurred that [he] had to take care of," including the fact that he had been "stabbed 18 times." (Tr. 3, Sept. 21, 2004) Magistrate Judge Freeman stated that she would not give Howard any more extensions. If she received Howard's reply before she decided the motions, she would consider it. If not, she would decide the motions on the papers she had before her. (Tr. 4-5, Sept. 21, 2004)
A. Statute of Limitations
Defendants argue that Plaintiff's section 1983 and state law claims should be dismissed against the proposed Defendants because they were not commenced within the applicable statute of limitations.
Section 1983 itself provides no statute of limitations for courts to apply. Instead, federal district courts "must 'borrow' the limitations period from the most appropriate or analogous state statute." Cole v. Miraflor, No. 99 Civ. 977, 2001 WL 138765, at * 3 (S.D.N.Y. Feb. 19, 2001). New York's three-year period for personal injury actions governs section 1983 actions in New York State. Id. at *3 (citing Owens v. Okure, 488 U.S. 235, 249 (1989)). Federal law governs the accrual of a section 1983 claim. Id. "Such claims accrue when the plaintiff knows or has reason to know of the injury which is the basis of his action." Id. (citation omitted). Plaintiff's state law claims are governed by New York General Municipal Law section 50-i(1)(c), which provides that any tort claims against the City or its employees must be brought within one year and ninety days of the alleged occurrence. See N.Y. Gen. Mun. Law § 50-i(1)(c).
Plaintiff contends that he was attacked by another inmate on February 7, 1999. In the immediate days that followed, Howard contends that various prison officials denied him adequate medical care. It appears that Howard's claim for failure to protect him from violence and inadequate medical treatment accrued in early February 1999. Therefore, the limitations period ran on Plaintiff's federal claims in early February 2002. Howard commenced this action by submitting the Complaint and an Application to proceed in forma pauperis on January 25, 2002 -- the date he handed the complaint to prison officials to be mailed. See Noble v. Kelly, 246 F.3d 93, 97 (2d Cir. 2001) ("[A] prisoner appearing pro se satisfies the time limit for filing a notice of appeal if he delivers the notice to prison officials within the time specified.").
Defendants preserved the statute of limitations defense as to Plaintiff's state law claims by raising it in their Answer. (Answer ¶ 103) ("This Court lacks jurisdiction of plaintiff's pendent state claims, if any, due to his failure to comply with Section 50 of the New York General Municipal Law.") "Although the invocation of the statute of limitations defense could perhaps have been clearer," it was raised in the Answer, and therefore, not waived. Patterson v. Balsamico, 440 F.3d 104, 112 (2d Cir. 2006). The Complaint was filed after the one year and ninety day statute of limitations for his state law claims had expired. The one year and ninety day provision in N.Y. Gen. Mun. Law section 50-i(1)(c) is a statute of limitations, and therefore, subject to equitable tolling. See Campbell v. City of New York, 825 N.E.2d 121, 122 (N.Y. 2005). However, there is nothing in the pleadings or motion papers here to suggest that equitable tolling should apply here. Therefore, Plaintiff's state law claims are dismissed.*fn2 See Santiago v. Newburgh Enlarged City Sch. Dist.,434 F. Supp. 2d 193, 197 (S.D.N.Y. 2006) ("[T]he burden rests with plaintiff to prove [his] entitlement to a toll . . . ."); Anselmo v. Copertino, 513 N.Y.S.2d 596, 597 (Sup. Ct. 1987) (dismissing complaint where process was served three days after statute of limitations expired).
Plaintiff's Complaint was filed within the statute of limitations for his section 1983 claim. When a plaintiff seeks to amend the complaint after the statute of limitations on his claims has run, Fed. R. Civ. P. ...