The opinion of the court was delivered by: Honorable Richard J. Arcara Chief Judge United States District Court
On May 3, 2006, the plaintiff, Armando Santiago, an inmate at the Wende Correctional Facility, filed the instant pro se action seeking relief under 42 U.S.C. § § 1983, 1985 and 1986. The complaint named as defendants Gary D. Booker, "Brezneack," James Conway, "P. Corcoran," "M. Duminuco," Glenn S. Goord, Randy James and John Moran. Plaintiff alleged in his complaint that these defendants assaulted him, that they were deliberately indifferent to his medical needs, that they retaliated against him and covered up the assault, and that they conspired to deprive him of his constitutional rights.
On October 18, 2006, the Court issued a Memorandum and Order, pursuant to 28 U.S.C. § 1915 (e)(2)(B), dismissing with prejudice all of plaintiff's claims, except for his claims of excessive force against defendants Gary D. Booker and John Moran.
Currently before the Court are the following motions brought by plaintiff:
(1) motion to amend the complaint (Docket No. 14); (2) motion to strike the answer of defendant Moran (Docket No. 11); (3) motion for default judgment against defendant Booker (Docket No. 17); (4) motion for appointment of counsel (Docket No. 19); (5) motion for amended discovery (Docket No. 22); (6) motion for an order directing the defendants to retain their own counsel (Docket No. 24); (7) motion to strike answer of defendant Booker (Docket No. 25); and (8) motion for a temporary restraining order/preliminary injunction (Docket No. 26).
1. Motion to Amend the Complaint
Plaintiff has moved to amend the complaint. He seeks to revive his dismissed claims and to reinstate the original defendants who were terminated as a result of the Court's October 18, 2006 Memorandum and Order.
In addition to reasserting claims against the original defendants, plaintiff's proposed amended complaint mentions a number of individuals who were not named in the original complaint. It is not clear from the proposed amended complaint which of these individuals plaintiff intends to add as defendants. The "Proposed and Amended Parties" section lists three new "proposed" defendants: "I.G." R. Bonner, R. D. Coffee and Roy Snyder. The factual allegations mention these three, but also refer to seven more: Nurse R. Hagmier, C.O. Hussy, C.O. Nicotra, C.O. Pirfiut, Examiner Nurse Karen Sharp, Captain Slawatycki and Anthony Witkowski. The Court will assume that plaintiff intends to name all ten of these individuals as new defendants.
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend "shall be freely given when justice so requires." However, "it is well established that leave to amend a complaint need not be granted when amendment would be futile." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003).
Here, most of plaintiff's proposed amendments would be futile as they would be subject to dismissal and/or summary judgment. With regard to the claims and defendants named in the original complaint, with the exception of the excessive force claim against defendants Moran and Booker, the Court has already dismissed, with prejudice, all such claims and defendants. The dismissal with prejudice is res judicata on the merits of a claim in favor of the defendants. Nemaizer v. Baker, 793 F.2d 58, 60-61 (2d Cir. 1986). Plaintiff is therefore barred from reviving the already-dismissed claims and is barred from reinstating the original defendants.
With regard to the new defendants, with the exception of defendant Witkowski, as discussed below, plaintiff has failed to state a claim upon which relief may be granted. Plaintiff has failed to allege facts showing these new defendants' personal involvement in the deprivation of plaintiff's constitutional rights.
With regard to defendant Witkowski, however, plaintiff claims that he joined defendants Booker and Moran in assaulting plaintiff, on November 9, 2003. Accordingly, the Court shall allow the ...