The opinion of the court was delivered by: Richard J. Sullivan, District Judge
Plaintiff Russell Manley moves for permission to join a new defendant to this action. Summary judgment in this action was granted to the original defendants on January 19, 2007, and the case was closed on January 22, 2007. For the reasons given in that opinion, as well as the reasons herein, the motion is DENIED.
At all times relevant to this Memorandum and Order, Plaintiff was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"), housed at the Fishkill Correctional Facility in Beacon, New York ("Fishkill"). On June 29, 1999, Plaintiff suffered cuts on his right thumb and left palm while he was attempting to bend the lid of a tuna fish can into a shape suitable for slicing an onion. See Manley v. Mazzuca, No. 01 Civ. 5178 (KMK), 2007 U.S. Dist. LEXIS 4379, at *2-3 (S.D.N.Y. Jan. 19, 2007). He was taken to the medical department and treated, but continued to be troubled by pain and numbness in his hand. After several medical appointments, Dr. Francis, the attending physician at Fishkill, filed a request for outside consultation. This request was denied by Correctional Physician Services ("CPS"), a vendor contracted by the DOCS to review requests for specialty medical care. Fishkill's computerized record of this request included a comment on the denial which reads, "Why is another follow up being requested?" Id. at *7. The denial was reviewed by Dr. Alexis Lang, the DOCS regional medical director, and was upheld on May 3, 2000. No additional requests for outside consultation were made. Id. at *6-8. Plaintiff pursued internal grievance processes, the outcome of which was a recommendation that plaintiff directly appeal the denial of consultation to Dr. Lang. On March 21, 2001, Plaintiff sent a letter to Dr. Lang requesting medical treatment for his thumb. While Dr. Lang claimed not to have received the letter, there was no dispute that Dr. Lang "never followed up on Plaintiff's medical treatment." Id. at *9 (internal quotations omitted).
Plaintiff filed a complaint in 2001, alleging that defendants William Mazzuca, Thomas Eagen, and numerous unidentified officers working in the DOCS Inmate Grievance Program and Division of Health Services ("Defendants") failed to provide him with adequate treatment for a laceration on his right hand. Specifically, Plaintiff claimed that Defendants violated his civil rights by being deliberately indifferent to his serious medical needs and grossly negligent in their treatment of his wounds. Plaintiff sought damages pursuant to 42 U.S.C. § 1983, alleging violations of the Eighth and Fourteenth Amendments to the United States Constitution. The action, originally assigned to the Honorable Barbara S. Jones, District Judge, was reassigned to the Honorable Kenneth M. Karas, District Judge, on September 28, 2004.
In or around February 24, 2006, Plaintiff requested a pre-motion conference with Judge Karas, pursuant to his Individual Practices, in anticipation of filing a motion to amend the complaint to include Dr. Lang as a defendant. (See Pl.'s Letter of Feb. 24, 2006.) On March 13, 2006, the defendants filed a motion for summary judgment. (See Docket, Document No. 34, Motion of Mar. 13, 2006.) On April 18, 2006, the court held that briefing and a decision about the proposed amendment to the complaint would be stayed until after the summary judgment motion was decided, because any request to add a new defendant would be obviated by dismissal of the underlying claim. (See Docket, Entry No. 44, Conf. of Apr. 18, 2006.)
On January 19, 2007, Judge Karas granted Defendants' motion for summary judgment. See Manley v. Mazzuca, No. 01 Civ. 5178 (KMK), 2007 U.S. Dist. LEXIS 4379, at *2 (S.D.N.Y. Jan. 19, 2007). Judge Karas determined that, as a matter of law, Plaintiff could not show that Defendants' refusal to order additional treatment, namely surgery, was unreasonable in light of the evidence available to them. Judge Karas further held that Plaintiff's injuries were not sufficiently serious as to make out a violation of the Eighth Amendment. Finally, the Court held that even assuming arguendo that Plaintiff's condition was sufficiently serious as to violate the Eighth Amendment, Plaintiff had not shown that Defendants acted with sufficient intent to violate the Constitution.
On October 25, 2007, this action was reassigned to the undersigned. Plaintiff now moves to join a new defendant, Dr. Lang, to this action.
Plaintiff argues that under Federal Rules of Civil Procedure 15(a) and 20(a), the requirements for amending the complaint to join Dr. Lang are met, and that Judge Karas' summary judgment decision does not foreclose the amendment. Because Plaintiff's motion to amend is both untimely and futile as a matter of law, the motion must be denied.
"Once judgment is entered[,] the filing of an amended complaint is not permissible until judgment is set aside or vacated pursuant to Fed. R. Civ. P. 59(e) or 60(b)." National Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 244 (2d Cir. 1991) (internal quotation marks omitted). In short, Plaintiff "cannot amend a complaint in an action that has already been dismissed." In re Aquaculture Found. v. Hamel, 183 F.R.D. 64, 66 (D. Conn. 1998).
Judgment in this case has been entered, and the parties have not filed any motion seeking to vacate the judgment. Even if the Court were to construe the pending motion to amend the complaint as a motion to vacate, there is no basis for such a ruling. First, a motion to amend or alter the judgment under Rule 59(e) must be filed no later than ten days after entry of the judgment. See Fed. R. Civ. P. 59(e). The instant motion was not filed until June 20, 2007, nearly five months after judgment was entered. As such, any motion under Rule 59(e) is untimely. Second, the parties have not pointed to any mistake, oversight, neglect, or newly discovered evidence that would warrant setting aside this judgment under Rule 60, nor have they suggested that there is any other basis to vacate the ...