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Tavares v. City of New York

January 20, 2010


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


Pedro Juan Tavares, a prison inmate, brings this action pro se pursuant to 42 U.S.C. §§ 1983, 1985, and 1986, alleging that the defendants have violated his constitutional rights. He claims that while he was a pretrial detainee at the George Motcham Detention Center ("GMDC") on Rikers Island, Correction Officer Jean used excessive force against him, causing him physical injuries. He further asserts that Officer Jean, Warden Emmanuel Bailey, Captain Glover, Captain Pee, and Officer John Doe conspired to cover-up Officer Jean's actions. Finally, he alleges municipal liability on the part of the City of New York (the "City") and the Department of Corrections.

Mr. Tavares has filed a motion for leave to amend the Complaint. His proposed Amended Complaint adds four officer defendants (the "proposed defendants"), two of whom were apparently listed under different names in the Complaint, and includes allegations that his hip --- in addition to his back --- was injured as a result of the incident.*fn1 For the reasons set forth below, the plaintiff's motion for leave to amend is granted in part and denied in part.


A. Facts

The plaintiff's claims arise from an incident that he alleges occurred on the evening of July 17, 2007 during his pretrial detention at GMDC. In his original Complaint, Mr. Tavares claims that while he walked back to his dormitory after picking up some medication, Officer Jean touched his face in order to stop him and allow two officers --- Captain Pee and Officer John Doe --- to pass. (Complaint ("Compl."), ¶ 14). Mr. Tavares then asked Officer Jean why he had touched his face. (Compl., ¶ 15). Officer Jean became "furiously angry and very aggravated," threw him against the wall, spread his legs by kicking him "harshly" on both of his ankles, and pressed his chest against the wall. (Compl., ¶ 16). The pressure on his chest was so severe that Mr. Tavares thought he was going to faint. (Compl., ¶ 16).

The plaintiff alleged that the event lasted for three to five minutes and was witnessed by Captain Pee and Officer Doe. (Compl., ¶ 17). The incident ended when Captain Pee ordered Officer Jean to stop and Mr. Tavares to walk away. (Compl., ¶ 17).

Mr. Tavares states that he filed a grievance with the Office of the Inspector General and served copies on Warden Bailey and on the Grievance Committee at GMDC. (Compl., ¶ 18). After a four-month delay, Captain Glover, who led the investigation, concluded that the plaintiff's complaint lacked merit. (Compl., ¶¶ 19-20).

Since the incident, Mr. Tavares asserts that he has suffered from persistent back pain and that he walks with a limp. (Compl., ¶ 23). He is now unable to walk without the assistance of a cane and claims that he soon "will become cripple[d] and disable[d]" without the appropriate medical treatment. (Compl., ¶¶ 23-25). He also has taken painkillers since the alleged assault. (Compl., ¶ 22).

B. Procedural History

The plaintiff filed this action on April 22, 2008. On March 6, 2009, he submitted an amended complaint, which I ordered stricken because he had not obtained leave of court to file it. (Memorandum Endorsement dated April 8, 2009). On April 16, 2009, Mr. Tavares moved for leave to file an amended complaint. The Amended Complaint identifies the person named Captain Pee in the original Complaint as Captain Drain and the person named Officer John Doe as Officer Pennant. It also adds Mr. Edmund Duffy, the Deputy Warden of Security at GMDC at the time of the incident, as a defendant. Furthermore, although there is no mention of her in the Amended Complaint that he submitted with his motion, Mr. Tavares has since indicated a desire to add Vanessa Singleton, Deputy Warden of Security at GMDC, as a defendant. (Plaintiff's Answer to Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment ("Pl. Response") at 31-32). Finally, the Amended Complaint includes allegations that the plaintiff's hip was also injured during the incident. (Amended Complaint ("Amend. Compl."), ¶ 25).

Nearly simultaneously with Mr. Tavares' motion for leave to amend, the City, the Department of Correction, Captain Glover, and Warden Bailey moved for summary judgment and to dismiss the claims against Officer Jean. As a result, the plaintiff's arguments regarding his motion for leave to amend are contained in his submissions concerning the defendants' motions.*fn2 The defendants have since withdrawn these motions with an understanding that their summary judgment motion can be renewed once the Amended Complaint has been filed and served. They have also filed a response to the plaintiff's motion to amend, arguing that the motion should be denied on the ground of futility because Mr. Tavares cannot establish his claims against the proposed defendants. (Letter of Brian Francolla dated Jan. 14, 2010).


A. Standard for ...

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