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Nieves v. Gonzalez

March 18, 2008


The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge


Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #72.

Currently before the Court is plaintiff's motion (Dkt. #52), to amend the complaint to substitute Corrections Counselor Stephen Zemmerman for defendant John Doe and to add Glenn S. Goord and Lucien LeClaire as defendants. Dkt. #52. For the following reasons, plaintiff's motion is granted in part and denied in part.


Plaintiff alleges that on June 28, 2004, while in protective custody at the Attica Correctional Facility ("Attica"), Corrections Officer ("C.O.") J. Johnson conducted a random search of plaintiff's cell. Dkt. #52-2, ¶ 8. During this search, C.O. Johnson and the porter accompanying him, a gang leader named Billy, stole plaintiff's property, including addresses and phone numbers of his family and lawyers and bank information. Dkt. #52-2, ¶ 9-10. Billy was subsequently observed passing this information to other members of his gang. Dkt. #52-2, ¶ 13. C.O. Johnson and C.O. Booker continued to provide plaintiff's mail to Billy, who impersonated plaintiff and responded to his mail. Dkt. #52-2, ¶ 16.

On August 4, 2004, plaintiff alleges that he handed a sealed letter of complaint addressed to the Superintendent or Sergeant of Attica to Correctional Counselor Stephen Zimmerman. Dkt. #52-2, ¶ 22. Plaintiff observed Correctional Counselor Zimmerman hand the complaint to C.O. Booker, who opened it and gave it to Billy. Dkt. ##52-2, ¶¶ 23-24.

Plaintiff also alleges that on August 5, 2004, he gave C.O. Booker a letter addressed to the New York City Police Department, which contained the address of his wife and family members, and thereafter observed Billy passing xeroxed copies of the letter to other inmates, who wrote letters to his wife, family members and the New York City Police Department, thereby misleading the New York Police Department's investigations and endangering lives. Dkt. #52-2, ¶¶ 17-21.

Plaintiff alleges that he sent a detailed letter of complaint to Commissioner Goord and Deputy Commissioner LeClaire regarding his stolen papers and improper cell search, but received no response. Dkt. #52-2, ¶ 14. Plaintiff reiterates that he sent a number of complaints regarding violations of his civil and human rights at Attica to both Commissioner Goord and Deputy Commisioner LeClaire in June and August of 2004, but received no response. Dkt. #52-2, ¶¶ 34-35.


Fed. R. Civ. P. 15(a) provides that a party may amend a pleading by leave of court or by written consent of the adverse party. Leave to amend is to be "freely granted" unless the party seeking leave has acted in bad faith, there has been an undue delay in seeking leave, there will be unfair prejudice to the opposing party if leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Fed. R. Civ. P.15(a). "Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend." Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). "Absent a showing that significant additional discovery burdens will be incurred or that the trial of the matter will be significantly delayed, amendment should be permitted." W.R. Grace & Co. v. Zotos Int'l, Inc., 2000 W L 1843282 (W .D.N.Y. 2000). The decision to grant or deny a motion for leave to amend a pleading is within the discretion of the district court. Foman, 371 U.S. at 182.

Although Fed. R. Civ. P. 15(a) generally governs the amendment of complaints, where the proposed amendment seeks to add new defendants, Fed. R. Civ. P. 21 governs. Rush v. Artuz, 2001 W L 1313465, at *5 (S.D.N.Y. 2001). Rule 21 states that "[p]arties may be . . . added by order of the court on motion of any party . . . at any stage of the action and on such terms as are just." Fed. R. Civ. P. 21. "In deciding whether to allow joinder, the Court is guided by the same standard of liberality afforded to motions to amend pleadings under Rule 15." Rush, 2001 W L 1313465, at *5 (internal quotation omitted); see Clarke v. Fonix Corp., 1999 W L 105031, at *6 (S.D.N.Y. March 1, 1999), aff'd 199 F.3d 1321 (2d Cir. 1999).

Official Capacity

The Eleventh Amendment of the United States Constitution bars suits in federal court for money damages against a state or its agencies, unless the state has waived its sovereign immunity by consenting to suit in federal court or Congress has authorized such a suit pursuant to a valid exercise of its power. Board of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 363-64 (2001); College Savs. Bank v. Florida Prepaid Post-secondary Educ. Expense Bd., 527 U.S. 666, 680 (1999); Pennhurst State School and Hosp. v. Halderman, 465 U.S. 89, 100 (1984). Because a suit against a state official in his or her official capacity is a suit against the official's office, it is no different than a suit against the state itself and is also barred by the Eleventh Amendment. Will v. Michigan Dep't of State Police, 491, U.S. 58, 71 (1989); Penhurst, 527 U.S. at 101-02. As a result, suits for money damages brought against state officials in their official capacities are barred by the Eleventh Amendment. Eng. v. ...

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