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Tyree v. Zenk

May 22, 2009

GARLAND ANDREW TYREE, PRO SE PLAINTIFF,
v.
MICHAEL M. ZENK, CAPTAIN LOPRESTI, LT. CUSH, LT. TAMAYO, C.O. PEMBERTON, Y. HERCULES, C.O. FELDER, 6 UNIDENTIFIED MEMBERS OF EXTRACTION TEAM #1, DEFENDANTS.



The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge

ORDER

On July 7, 2008, The Honorable Lois Bloom, United States Magistrate Judge, entered an order granting the motion of pro se plaintiff Garland Tyree to file an amended complaint. (Doc. No. 70, "July 7th Order.") Now before the court are defendants' objections to the July 7th Order to the extent that it (a) permitted plaintiff to add Special Investigative Support Technician L. Corbett as a named defendant, and (b) required the United States Attorney, counsel for defendants, to provide to the court the address where L. Corbett could be served. (Doc. No. 71, Memorandum of Law in Partial Objection to Magistrate Judge Bloom's Order Granting Plaintiff's Motion for Leave to Amend the Complaint ("Def. Mem.") at 1.) For the reasons provided below, the court denies defendants' objections and affirms Magistrate Judge Bloom's July 7th Order.

I. BACKGROUND

Plaintiff pro se commenced this suit by complaint filed June 22, 2005, alleging constitutional violations pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). (Doc. No. 1, "Compl.") By order entered July 18, 2005, plaintiff was granted leave to proceed in forma pauperis. (Doc. No. 4.) The Honorable Raymond J. Dearie, Chief United States District Judge, denied defendants' first motion for summary judgment by memorandum and order entered February 14, 2007. (Doc. No. 22.)*fn1 Plaintiff's complaint, "pertain[ing] to all named and unnamed persons responsible for the utilization/authorization of the extraction team of 10/29/03," was brought as a "Bivens type Action pursuant to 28 U.S.C. 1331 against Federal Officers" of the Bureau of Prisons ("BOP") and Metropolitan Detention Center ("MDC") acting under color of federal law. (Compl. at 1.) Plaintiff makes five claims, all of which he alleges to be "violations of the U.S. Constitution's Fifth and Fourteenth Amendments [sic] due process rights." (Id. at 2.) Claim One alleges as follows: "On 10/29/03 in the early morning hours Lt. Cush came to [plaintiff's] cell" and told plaintiff to allow himself to be handcuffed. Plaintiff asked "why?" and Lt. Cush responded, "Because I fucking said so Tyree." (Id. at 1.) Lt. Cush stated, "Oh I forgot, you're a gangsta too" and left before plaintiff could respond, returning 45 minutes to an hour later with Captain Lopresti and "extraction team #1 dressed in black riot type gear and armed with a stun gun and video camera." (Id.) Plaintiff was ordered to submit to restraints and "while [plaintiff] was attempted to comply, staff members quickly opened the tray slot and sprayed [plaintiff]" with a chemical on his side, back and buttocks. (Id.) The spray caused plaintiff to "dry heave and almost choke[]," his eyes to run, and his throat and lungs to "burn[] with irritation" during breathing. (Id.)

Defendants' objections to Judge Bloom's order focus on her grant of permission to name as a defendant L. Corbett ("Corbett"), the video camera operator. (See generally Def. Mem.) The allegations relevant to Corbett are contained in "Claim Two" of the initial complaint, which states:

After removing me from cell 217, I was shoved toward the outdoors recreational area, in route Lt. Cush had the officer who was controlling the handheld video camera move the camera so that it was no longer recording me and again sprayed me directly in the face with the same chemical agent for no justifiable reason. The chemical agent went directly into my eyes, nose and mouth causing the pain from the previous spray to intensify. When I was placed outside I told Captain Lopresti about being sprayed in my face outside the cell and pointed out to him that my face was wet with the chemical[.] (It wasn't after the first spray to the body.)

[H]e smiled and said "Yeah, I know that was my orders." (Id. at 2.)

On April 9, 2008, plaintiff moved for leave to file an amended complaint to "add by name a previously unnamed member of extraction team #1 of 10/27/03 who I named in October 2005," the operator of the video camera, Corbett.*fn2 (Doc. No. 65 at 1-2.) The proposed amendments to plaintiff's complaint that are relevant to Corbett include the addition of Corbett's name to the caption of the complaint; the listing of Corbett as a defendant in a section headed "Parties"; and a slight modification of "Claim Two" to read, in relevant part, "in route Lt. Cush signaled [sic] to S.I.S. Technician L. Corbett, who was controlling the handheld video camera to move the camera so that it was no longer recording me and sprayed me directly in the face" with the chemical agent. (Doc. No. 65, Attach. 1, Proposed Amended Complaint.) Defendants opposed the motion by memorandum of law filed May 9, 2008, which contended, inter alia, that plaintiff's amendment would be futile because the claim against defendant Corbett could not survive dismissal or summary judgment; that the Corbett allegations were untimely because they could not "relate back" to the filing of the initial complaint; and that the amendment was unduly delayed and allowing it would unfairly prejudice defendants. (See Doc. No. 66.)

Thereafter, Judge Bloom issued the July 7th Order, granting plaintiff's motion to file the amended complaint. Judge Bloom's Order stated that "[a]lthough some of defendants' arguments may ultimately be meritorious . . . these arguments are more properly raised in a dispositive motion at the close of discovery," and that "[u]nder the circumstances presented and in the interests of justice, plaintiff will not be precluded from amending his complaint to add [Corbett] and conducting limited discovery." (July 7th Order at 3.) Judge Bloom found that by letters sent in October and November of 2005, and in February 2008, plaintiff had promptly notified the United States Marshals and the Clerk of Court of Corbett's identity and requested that she be served. (Id. at 4-5.) Given plaintiff's in forma pauperis status, Judge Bloom held that the court was obligated to effect service on plaintiff's behalf and his motion to amend the complaint was not untimely given his reasonable reliance on the court to have served Corbett on the basis of his letters. (Id. at 5.) Judge Bloom rejected defendants' contention that the amendment would create an undue burden, as discovery was at that time still ongoing, and upon her finding that Corbett had constructive notice of the claims due to the factual detail with which they were pled in the initial complaint. (Id. at 5-6.) Judge Bloom also rejected defendants' argument that the amendment was untimely. (Id. at 6.) Judge Bloom found that the amendment related back to the date of the initial complaint because it arose from the same conduct initially pleaded, because Corbett had constructive notice of the allegations, and because the error in failing to timely serve Corbett was attributable to the court, not to plaintiff. (Id.)

On July 21, 2008, defendants filed a memorandum of law setting forth partial objections to the July 7th Order.*fn3 (See Doc. No. 71, Def. Mem.) Defendants assert that Judge Bloom committed clear error by (a) failing to address whether plaintiff's amended complaint would be futile because plaintiff's claims against defendant Corbett would be subject to dismissal under Fed. R. Civ. P. 12 or Fed. R. Civ. P. 56; (b) ruling that plaintiff's amended complaint was not time-barred as to Corbett because it "related back" to the original complaint; (c) ruling that plaintiff had not unduly delayed bringing his motion to amend the complaint; and (d) ruling that the addition of Corbett to the action would not unduly delay the litigation or cause unfair prejudice to the other defendants. (Id.) On September 11, 2008, the undersigned ordered plaintiff to file any response to defendants' objections by October 10, 2008, but plaintiff filed no response.

II. DISCUSSION

A. Standard of Review of Magistrate Judge's Decision

Upon a party's objection to the decision of a magistrate judge on a nondispositive matter, the district court reviews the decision to ensure that it is not "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007). The Second Circuit has referred to a motion to amend a complaint as a non-dispositive matter, but has not explicitly decided so. See Fielding, 510 F.3d at 178; Kilcullen v. New York State Dep't of Transp., 55 Fed. App'x 583, 584 (2d Cir. 2003) (summary order). District courts in this circuit have suggested that a magistrate judge's denial of a motion to amend a complaint should be treated as dispositive, while a grant of the same motion should be treated as non-dispositive. See Nielsen v. New York City Dep't of Educ., No. 04-CV-2182 (NGG) (LB), 2009 WL 301944, at *3-4 (E.D.N.Y. Feb. 6, 2009) ("[S]ome courts have concluded that a motion to amend should be considered dispositive 'where the magistrate judge's denial of the motion foreclosed potential claims,'" and thus subject to de novo review) (quoting Wilson v. City of New York, No. 06-CV-229 (ARR) (VVP), 2008 WL 1909212, at *4 (E.D.N.Y. Apr. 30, 2008)); Partminer Info. Servs., Inc. v. Avnet, Inc., No. 07 Civ. 11482 (LMM), 2009 WL 1119588 (S.D.N.Y. Apr. 21, 2009) ("This Court is of the view that a grant of a motion for leave to amend is nondispositive") (emphasis added); Schiller v. City of New York, No. 04 Civ. 7922 (RJS) (JCF), 2009 WL 497580, at *2 (S.D.N.Y. Feb. 27, 2009) ("Notwithstanding the possibility that a magistrate judge's denial of a motion to amend a complaint may be dispositive, [the order at issue] granting [a] motion to amend . . . is nondispositive, and as such, subject to clear error review only.") (emphasis in original). Because the court reviews Magistrate Judge Bloom's grant of leave to amend the complaint, clear error analysis applies under § 636(b)(1)(A) and Fed. R. Civ. P. 72(a).*fn4

A district court will find a magistrate judge's order "'clearly erroneous' only when the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United Parcel Service of America, Inc. v. The Net, Inc., 222 F.R.D. 69, 70-71 (E.D.N.Y. 2004); see also Easley v. Cromartie, 532 U.S. 234, 242 (2001) (stating that, on clear error review, the Supreme Court "will not reverse a lower court's finding of fact simply because we would have decided the case differently, [but] . . . must ask whether, 'on the entire evidence,' [the court] is 'left with the definite and firm conviction that a mistake has been committed.'") (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)). "Magistrate judges are afforded broad discretion with respect to nondispositive matters, and their findings should only be reversed if such discretion is abused." State Farm Mut. Auto. Ins. Co. v. CPT Medical Services, P.C., No. 04 CV 5045 (ILG), 2008 WL 2884446, at *3 (E.D.N.Y. July 23, 2008). A party seeking to ...


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