The opinion of the court was delivered by: David R. Homer U.S. Magistrate Judge
MEMORANDUM-DECISION AND ORDER
Presently pending are the motions of plaintiff Roger L. Harris ("Harris") for (1) leave to file an amended complaint (Docket Nos. 18, 19), (2) the appointment of counsel (Docket No. 28), and (3) discovery and sanctions (Docket No. 29). For the reasons which follow, Harris' motions for (1) leave to file an amended complaint is granted in part and denied in part, (2) appointment of counsel is denied, and (3) for discovery and sanctions is denied.
Harris was a probationary employee of the Schenectady County Sheriff's Department ("SCSD") on September 28, 2007 when he was arrested for assault following an incident at a Schenectady bar. The arrest was allegedly based on a video tape of the incident. Harris denies the assault and claims that the video tape has been altered. Harris' employment was immediately terminated. Harris claims that he was the victim of false arrest and of racial and age discrimination in employment by the Schenectady County defendants and by his union, the Schenectady County Sheriff's Benevolent Association, Local 3874 ("Union"), in violation of 42 U.S.C. § 1983; Title VII of the Civil Rights Act ("Title VII"), 42 U.S.C. § 2000e-2(a); the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq.; and related state and federal law. Compl. (Docket No.1) at ¶¶ 108-241 (asserting eleven causes of action). Defendants contend that as Harris was a probationary employee, defendants could terminate his employment for any reason and did so based on the arrest. They also contend that the video tape and Harris' statement to police following the incident provided sufficient cause for the arrest.
On July 2, 2009, Harris filed a motion for leave to file an amended complaint. Docket No. 18. By that motion, Harris sought to (1) add three new defendants and (2) add additional allegations and causes of action. Harris Affirm. (Docket No. 18-2) at ¶ 3, 4. Four days later, Harris filed a second motion seeking the same relief with a second proposed amended complaint containing the same proposed changes contained in the first which (1) corrected grammatical, spelling, and typographical errors, and (2) attached an unsigned copy of the proposed amended complaint where the first motion attached a signed copy. Harris Affirm. (Docket No. 19) at ¶¶ 3-6; Proposed Second Am. Compl. (Docket No. 19) at ¶¶ 308-407 (adding nine new causes of action). Defendants oppose the motions on various grounds discussed below.*fn1
Fed. R. Civ. P. 15(a) provides that the Court should grant leave to amend "freely ... when justice so requires." When exercising its discretion, a court must examine whether there has been undue delay, bad faith, or dilatory motive by the moving party. Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46 (2d Cir.1983) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). A court must also examine whether there will be prejudice to the opposing party. See, e.g., Ansam Assocs. Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir.1985) (permitting proposed amendment would be especially prejudicial once discovery was completed and a summary judgment motion filed). Finally, where it appears that granting leave to amend is likely to be futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993) (citations omitted).
Defendants here oppose Harris' motions principally on the ground that the proposed amendments would be futile. Amending a complaint is futile where the proposed amendment does not cure the deficiencies in the original complaint, Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir.1995), or it would not survive a motion to dismiss. Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir.1991). Therefore, to determine whether the proposed amendment is futile, a court must apply "the same analysis as that applied on a motion to dismiss" under Fed. R. Civ. P. 12(b)(6). Stetz v. Reeher Enterprises, Inc., 70 F. Supp. 2d 119, 121 (N.D.N.Y.1999). Rule 12(b)(6) authorizes dismissal of a complaint that states no actionable claim.
Moreover, where, as here, new defendants are sought to be added, a court must also look to Fed. R. Civ. P. 21. Rule 21 states that a party may be added to an action "at any stage of the action and on such terms as are just." Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." United States v. Commercial Bk. of N.A., 31 F.R.D. 133, 135 (S.D.N.Y.1962) (internal quotations omitted). The addition of parties under Rule 21 is also guided by the same liberal standard applicable to a motion to amend under Rule 15. Chilstead Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y.1972).
Finally, when, as here, the party seeking leave to amend proceeds pro se, a court must afford the pro se litigant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir.2006). As the Second Circuit has stated,
[t]here are many cases in which we have said that a pro se litigant is entitled to "special solicitude," ... that a pro se litigant's submissions must be construed "liberally," ... and that such submissions must be read to raise the strongest arguments that they 'suggest.' ... At the same time, our cases have also indicated that we cannot read into pro se submissions claims that are not "consistent" with the pro se litigant's allegations, .. or arguments that the submissions themselves do not "suggest, ..." that we should not "excuse frivolous or vexatious filings by pro se litigants" ... and that pro se status "does not exempt a party from compliance with relevant rules of procedural and substantive law...."
Id. (citations and footnote omitted); see also Sealed Plaintiff v. Sealed Defendant # 1, 537 F.3d 185, 191-92 (2d Cir. 2008) ("On occasions too numerous to count, we have reminded district courts that 'when [a] plaintiff proceeds pro se, ... a court is obliged to construe his pleadings liberally.' " (citations omitted)).
Both groups of defendants oppose various aspects of Harris' proposed amended complaint as futile on a variety of grounds as follows.
Harris proposes to add the SCSD as a defendant. The County defendants oppose this amendment on the ground that the County of Schenectady is already named as a defendant, the SCSD is a subdivision of the County, Harris was an employee of the County rather than of the SCSD, and the addition of the SCSD would, therefore, be unnecessary. County Defs. Mem. of Law (Docket No. 22-7) at 1. Whether the County or SCSD should stand alone as a defendant remains to be resolved by the evidence in the case as to the identity of the employer. Harris' proposed complaint adequately alleges that SCSD was his employer, Harris is not required to accept defendants' representation that the County was his lone employer, and the Court may not consider evidence outside the corners of the proposed amended complaint. Accordingly, the County defendants' objection on this ground is denied.
2, Collateral Estoppel and Res Judicata
The County defendants' oppose the proposed amendments on the ground that the additional claims are barred by the doctrines of collateral estoppel and res judicata. County Defs. Mem. of Law at 2-6. This argument requires consideration of matters outside the proposed amended complaint, particularly the records of the prior proceedings upon which the County defendants rely. Harris is entitled to discovery on those records and to advance any arguments in opposition which he finds from the records he discovers. It is, therefore, premature to determine the County defendants' contentions on this ground at this stage. Their objection on this ground is denied.
3. Title VII and ADEA Claims Against Individual Defendants
The County defendants next contend that the inclusion of the individual defendants in Harris' Title VII and ADEA claims is barred by the terms of the statutes. This contention presents a pure question of law and may be determined by ...