Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Peralta v. Donnelly

July 13, 2009


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge



This is an action by pro se Plaintiff, a prison inmate, brought under 42 U.S.C. § 1983, asserting an Eighth Amendment claim of inadequate medical care. After dismissing the case in February 2007 for failure to name proper defendants, the Court granted Plaintiff's request for reconsideration, and, upon reconsideration, allowed Plaintiff to amend the Complaint by adding new defendants. (Docket # 20.) On September 10, 2007, Plaintiff filed his Second Amended Complaint. (Docket # 22.) Now before the Court is Defendant's Memorandum in Opposition to Plaintiff's Motion to Amend (Docket # 23), which the Court will construe as a Motion for Reconsideration of the Order granting leave to amend.*fn1 For the reasons set forth below, Defendant's motion (Docket # 23) is denied and the Court upholds its decision to allow Plaintiff to amend the Complaint.


On November 8, 2004, Plaintiff filed a complaint against an unknown defendant at Wende Correctional Facility ("Wende") for inadequate medical treatment. (Docket # 1.) Specifically, Plaintiff alleged that on March 29, 2003, an unknown physician ("John Doe") prescribed him an overdose of Kayexalate, which caused Plaintiff to suffer complications that led to his hospitalization. (Docket # 4.) Plaintiff did not know who had prescribed the dose of Kayexalate because the prescription had been made over the telephone. (Docket # 26.) On January 14, 2005, the Honorable William M. Skretny of this Court noted the difficulties an incarcerated pro se litigant faces in pursuing discovery, and he issued an order allowing Plaintiff to amend his Complaint to name the Superintendent of Wende as defendant until he identified John Doe. (Docket # 3.) Judge Skretny also noted that the New York State Attorney General would likely represent the John Doe defendant. Id. Consequently, Judge Skretny directed the Clerk of the Court to send a copy of the Complaint to the Attorney General's office to facilitate the identification of the prescribing physician. Id. On February 14, 2005, Plaintiff filed his First Amended Complaint, naming Superintendent Edward Donnelly ("Donnelly") as Defendant. (Docket # 4.)

On November 18, 2005, this Court ordered the U.S. Marshals Service to effect service of the Summons and Complaint upon Donnelly, and in that regard, directed the Clerk to forward the Complaint and Amended Complaint to the New York State Assistant Attorney General in Charge. (Docket # 5.) On January 9, 2006, Defendant sent Plaintiff a copy of his medical records. (Levine Decl. Ex. A.) On January 17, 2006, Defendant filed a motion to dismiss the Complaint on the ground that Plaintiff had received a copy of his medical records, but had not identified the physician he wanted to sue. (Docket # 7.) On February 3, 2006, Plaintiff opposed Defendant's Motion to Dismiss and informed the Court that Defendant had not produced the medical records from the relevant time period-March-April 2003. (Docket # 11.) On February 11, 2006, Plaintiff served a letter requesting his medical records from March-April 2003 and specifically asked for the name of the physician who prescribed him Kayexalate for that time period. (Docket # 12.) Plaintiff addressed his request to the Freedom of Information Law ("FOIL") Officer at Wende with copies sent to the Superintendent of Wende, the Clerk of the Court, and Assistant Attorney General Gary Levine. Id.

On August 11, 2006, this Court issued an order deferring Defendant's Motion to Dismiss and noted that Plaintiff could not have determined the identity of the prescribing physician from the information provided to him by Defendant. (Docket # 13.) Further, this Court referred the case to Magistrate Judge Marian W. Payson. (Docket # 14.) On August 21, 2006, Plaintiff sent a letter to Magistrate Judge Payson stating that he still had not received the March-April 2003 medical records. (Docket # 19, Ex. 1.) In the letter, Plaintiff reiterated his request that Defendant provide him with the relevant medical records and any pharmacy records from that period to help him identify his treating physician. Id.

In September 2006, Plaintiff received the relevant medical records from Defendant, which included a memorandum written by Physician Assistant V. Bluff ("Bluff") stating that she had prescribed Plaintiff Kayexalate over the telephone on March 6, 2003. (Docket # 23.) On November 29, 2006, the parties participated in a scheduling conference and Magistrate Judge Payson set the deadlines on the issue of identifying John Doe. (Docket # 16.) Judge Payson directed Plaintiff to complete any additional discovery on John Doe's identity by January 31, 2007 and to file his motion to amend the complaint by February 14, 2007. Id. Plaintiff failed to make a motion by the February 14, 2007, deadline. (See Docket # 17.) Consequently, this Court granted Defendant's renewed Motion to Dismiss. Id.

However, on June 25, 2007, Plaintiff requested that the Court reconsider its dismissal of his Complaint and allow him time to amend to name the John Doe defendant. (Docket # 19.) The Court granted his motion and set the deadline for amendment at August 17, 2007, which the Court ultimately extended to September 14, 2007. (Docket ## 20 & 21.) In the Order, dated July 23, 2007, the Court specifically requested that the New York Attorney General "ascertain the name of the 'John Doe' defendant plaintiff seeks to sue, and provide the name and address for service to Plaintiff by August 17, 2007." (Docket # 20.) By letter dated July 24, 2007, Defendant's counsel indicated he was unable to "ascertain who Plaintiff seeks to sue." (Docket # 23.) However, on September 10, 2007, Plaintiff filed his Amended Complaint naming V. Bluff as defendant, along with three "John (or Jane) Doe" defendants-to stand in for the medical supervisors working the morning, afternoon, and evening shifts on March 29, 2003. (Docket # 22.) Defendant Donnelly is no longer named as a defendant. Id.

On September 21, 2007, counsel for Defendant filed a memorandum of law opposing Plaintiff's motion for leave to amend. (Docket # 23.) As stated above, the Court had already granted Plaintiff leave to amend on July 24, 2007. (Docket # 20.) Defendant argues that the amendment is futile, given that Plaintiff filed it after the three year statute of limitations had run, and argued that the amendment cannot relate back to the original Complaint. (Docket # 23.) On October 8, 2007, Plaintiff responded to Defendant's Memorandum in Opposition by stating that his Second Amended Complaint complied with the Court's Order granting him leave to amend. (Docket # 24.)

On October 25, 2007, this Court directed Plaintiff to respond to Defendant's argument that because the statute of limitations has run, Plaintiff can amend to name Bluff only if he omitted her name by mistake. (Docket # 25.) Plaintiff responded by stating that he had not known the identity of the prescribing physician and could not have named Bluff as a defendant until he received the relevant medical records in September 2006. (Docket # 26.) While Plaintiff concedes that he had the medical records when Magistrate Judge Payson issued the scheduling order, he explains that he missed the deadline to amend due to inadequate assistance from his assigned law clerk. Id. The record indicates that Plaintiff relies on prison law clerks to assist him with his filings because he is not fluent in English and has a limited education. (Docket # 19, Ex. 1, Letter, Oct. 9, 2006.)


A plaintiff may amend a complaint once as a matter of course before a defendant serves a responsive pleading. Fed. R. Civ. P. 15(a)(1)(A). Thereafter, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires." Id. At the outset of the case, the Court directed Plaintiff to amend his Complaint to name Defendant Donnelly as a placeholder defendant until the proper defendant could be identified. (Docket # 3.) Therefore, Plaintiff has already amended once as a matter of course.

The applicable statute of limitations for Section 1983 actions is three years, as provided by New York State law. Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35 (2d Cir. 1996). Because Plaintiff's claim stems from the alleged overdose administered on March 29, 2003, the statute of limitations period ended on March 29, 2006. (See Docket # 23.) Consequently, Plaintiff's Second Amended Complaint, ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.