The opinion of the court was delivered by: Hon. Hugh B. Scott
Before the Court is plaintiff's motion for leave to amend the Complaint or to supplement pleadings (Docket No. 67*fn1 ), or to reassert his earlier motion (see id., Pl. Notice of Motion at 1; cf. Docket No. 65, Order). Response to this motion was due by October 12, 2007, any reply by October 26, 2007, and the motion was deemed submitted (without oral argument) on October 26, 2007 (Docket No. 70). In his reply (Docket No. 75, Pl. Memo. at 4-5), plaintiff cross-moves for Rule 37 discovery sanction of striking the Answer for defendants alleged failure to produce documents and answers to Interrogatories previously ordered.
On August 25, 2006, the parties consented to proceed before the undersigned as Magistrate Judge (Docket No. 17).
Familiarity with the prior Orders in this case (Docket Nos. 25, 33, 65) is presumed.
On March 13, 2006, plaintiff sued the superintendent of his former facility, Five Points Correctional Facility ("Five Points"), the director of Health Services for the New York State Department of Correctional Services ("DOCS"), the Five Points health services director, treating personnel at Five Points, the DOCS grievance director, and the State of New York for allegedly violating his constitutional rights by placing plaintiff in medical isolation for tuberculosis in September and October 2005 (Docket No. 1, Compl.). While in that isolation, plaintiff alleges being deprived of medical and dental care (id. at 6). He also claims that defendants violated the Americans with Disabilities Act (id. at 6-7) and discriminated against him despite being allegedly a federally funded facility, in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 794(a) (id. at 10). This Court granted plaintiff's motion (Docket No. 2) to proceed in forma pauperis without dismissing any claims or parties (Docket No. 3).
In May, June, and October 2006, defendants separately answered (Docket Nos. 5-7, 11-13, 20). Plaintiff first moved to dismiss affirmative defenses on June 12, 2006, and cross-moved to compel discovery (Docket No. 8, at 2), which this Court then rejected as being premature (Docket No. 18, Order at 3). The Court also denied plaintiff's motion to dismiss the defenses (id.).
On August 31, 2006, the Court issued the first Scheduling Order (Docket No. 19) which called for motions for leave to amend pleadings by September 29, 2006. Plaintiff then filed a second motion to dismiss affirmative defenses (Docket No. 22), which was also denied (Docket No. 25). Plaintiff next moved to compel discovery from defendants (Docket No. 28), which was granted in part and denied in part (Docket Nos. 32, 33), which amended the Scheduling Order (id.). Plaintiff then moved for discovery sanctions and for the Court to exercise supplemental jurisdiction over a pending New York State Court of Claims proceeding (Docket No. 52). In response, defendants sought full medical authorizations from plaintiff and extension of the Scheduling Order (see Docket No. 59*fn2 ). This Court granted plaintiff's motion to compel, but denied his motion for sanctions and to exercise supplemental jurisdiction, and granted defendants' request to compel plaintiff to execute full medical authorizations and to extend the schedule for this case (Docket No. 65). Under the Amended Scheduling Order for this case, plaintiff was to execute and serve full medical authorizations by September 17, 2007; discovery was to be completed by November 19, 2007; and dispositive motions are due by January 22, 2008 (Docket No. 65, Order at 26; Docket No. 66). Plaintiff states that he sent the signed medical authorizations on September 4, 2007 (Docket No. 68, Pl. Affirm. ¶ 5).
Plaintiff now argues that the Court did not consider his motion for leave to amend the Complaint (Docket No. 67, Pl. Notice of Motion at 1), although the Court did deny exercising supplemental jurisdiction (Docket No. 65, Order at 25), implicitly denying plaintiff leave to amend to assert claims requiring the Court to exercise such jurisdiction. Plaintiff moves for an Order under Rule 15(b) for permission to amend his pleadings to conform to the evidence adduced at trial relative to plaintiff's second medical condition that was not alleged in his Complaint (Docket No. 67, Pl. Notice of Motion at 1-2). He seeks to amend the Complaint (under Rule 15(c)(2)) to allege the second medical condition and disability relative to his Eighth and Fourteenth Amendment claims and claims under Title II of the Americans with Disabilities Act and § 504 of the Rehabilitation Act. Alternatively, plaintiff seeks a ruling on his earlier motion for permission to file supplemental pleadings under Rule 15(d) to respond to defendants' reference to his second medical condition as a defense (see Docket No. 62, Pl. Reply ¶¶ 12, 15; Docket No. 67, Pl. Notice of Motion at 2; cf. Docket No. 65, Order at 9).
Defendants argue that an amendment to allege claims arising from plaintiff's second medical condition would be futile (Docket No. 71, Defs. Memo. at 3-5). Plaintiff was aware of his second condition and could have alleged it initially in his original Complaint but chose not to (in fact he initially denied having that condition and refused to provide medical authorization to release records related to that condition, id. at 4). Plaintiff citing to Rule 15(b) and (d) provides no basis to support leave for amendment; Rule 15(b) applies when new issues or evidence arises during trial that do not conform to allegations in the initial Complaint (id.). The claims here do not arise in that situation (id. at 5). Defendants next argue that plaintiff fails to set forth any new conduct, occurrences or transactions that have happened since commencement of this action to support a supplemental pleading under Rule 15(d) (id.). Defendants reject application of the relation back doctrine under Rule 15(c)(2) to make timely plaintiff's new claims (id. at 5-6). Plaintiff seeks to amend the Complaint eighteen months after filing it without any explanation for the delay or any support for the amendment (id. at 6, 4).
In reply, plaintiff claims that he could not raise his proposed Fourteenth Amendment Equal Protection and Americans with Disabilities Act claims until he became aware that defendants justified their placing him in medical isolation due to the second ailment (Docket No. 75, Pl. Reply Memo., dated Oct. 22, 2007, filed Oct. 24, 2007, at 1-2). He argues that it would not be futile to amend his Complaint to allege claims under the Americans with Disabilities Act since state immunity is abrogated for claims under that act (id. at 2-3), see United States v. Georgia, 541 U.S. 151, 154, 126 S.Ct. 877, 879 (2006); Goodwardena v. New York, 475 F. Supp. 2d 310, 321-29 (S.D.N.Y. 2007).
In that reply, plaintiff also cross-moves to strike defendants' affirmative defenses as a discovery sanction under Rule 37 for failing to comply with the Court's second Order to compel (id. at 4). Note, that defendants have filed responses to plaintiff's discovery requests and Requests for Admissions (Docket Nos. 72-74, filed Oct. 19, 2007) and filed Answers to plaintiff's Interrogatories (Docket Nos. 76-81, filed Oct. 26, 2007) around the time plaintiff filed his reply. In his letter to the Court, plaintiff contends that these Answers to Interrogatories continued to refer ...