The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was assigned to the undersigned pursuant to this court's Standing Order, Amended Plan for the Disposition of Pro Se Cases, adopted and filed October 1, 1996, § I, ¶ C.5, for disposition of all non-dispositive pretrial matters. The matter is presently before the court on Defendants' motion to amend or correct the answer (Doc. No. 16), filed July 14, 2009, and Plaintiff's motion seeking to join additional defendants (Doc. No. 20), filed August 6, 2009.
Plaintiff James Brown ("Plaintiff"), proceeding pro se, commenced this civil rights action on August 22, 2007, while incarcerated at Elmira Correctional Facility ("Elmira") or "the correctional facility"), alleging that from December 17, 2003 until February 11, 2005, Defendants Manesh Mewar, DDS ("Dr. Mewar" or "Defendant")), and dental assistant Nancy Tapp ("Tapp"), denied Plaintiff dental care in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. Specifically, Plaintiff alleges that Defendants' failure to pull an abscessed tooth caused Plaintiff pain and suffering, and rendered Plaintiff unable to eat. On April 10, 2008, Defendant filed an answer (Doc. No. 5) ("Answer").
On April 7, 2009, Plaintiff moved to amend the complaint, seeking to terminate Tapp as a Defendant, and to add one John Gibson, DDS ("Dr. Gibson"), as a Defendant. By order filed May 14, 2009 (Doc. No. 11), the undersigned granted the motion to amend as to the request to terminate Tapp as a defendant, but, given that Plaintiff withdrew the request to add Dr. Gibson as a defendant, denied the request at to Dr. Gibson. As such, Dr. Mewar is the sole defendant in this action.
A Scheduling Order filed June 23, 2009 (Doc. No. 15) ("June 23, 2009 Scheduling Order"), establishes August 31, 2009, as the deadline for motions to either amend the pleadings or join parties. On July 14, 2009, Defendant filed the instant motion (Doc. No. 16) ("Defendant's motion"), seeking to amend the answer to assert a statute of limitations affirmative defense, along with the Declaration of Assistant Attorney General Michael A. Siragusa ("Siragusa") in Support of Defendant's Motion for Leave to Amend Defendant's Answer (Doc. No. 17) ("Siragusa Declaration"), and the Memorandum of Law in Support of Defendant's Motion for Leave to File an Amended Answer to Plaintiff's Complaint (Doc. No. 18) ("Defendant's Memorandum"). Although an order filed on July 21, 2009, directs Plaintiff to file a response to Defendant's motion by July 31, 2009, to date, Plaintiff has not filed any such response.
On August 6, 2009, Plaintiff filed a motion (Doc. No. 20) ("Plaintiff's motion"), supported by the attached Memorandum of Law in Support of Plaintiff's Motion for Joinder of Other Parties to Plaintiff's Complaint Pursuant to Federal Rules Civil Procedure Rule 20(1)(A)(B) 28 U.S.C.A. ("Plaintiff's Memorandum"), seeking to add as Defendants "Superintendent Calvin West, Dentist John Gibson, and all employees that was [sic] employed at Elmira Correctional Facility dental Dept. from December 17, 2003 until February 11, 2005 . . . ." Plaintiff's Memorandum at 2. On August 27, 2009, Defendant filed a Memorandum of Law in Opposition to Plaintiff's Motion Pursuant to Federal Rule of Civil Procedure 20 (Doc. No. 23) ("Defendant's Response"). On September 8, 2009, Plaintiff filed Plaintiff's Reply to Defendant's Opposition to Plaintiff's Request to Join Other Defendants to Plaintiff's Complaint (Doc. No. 24) ("Plaintiff's Reply"). Oral argument was deemed unnecessary.
Based on the following, Defendant's motion to amend the answer is GRANTED; Plaintiff's motion to add defendants is DENIED without prejudice and with leave to renew.
1. Motion to Amend the Answer
Defendant seeks to amend the answer to assert expiration of the relevant statute of limitations as an affirmative defense. Defendant's Memorandum at 1. According to Defendant, the instant motion should be granted because it is timely filed given that the June 23, 2009 Scheduling Order requires such motions be filed by August 31, 2009. Id. at 2. Defendant asserts because Fed. R. Civ. P. 15(a) provides that leave to amend be freely granted absent undue delay for the motion, prejudice to the opposing party, or bad faith. Id. at 2-3. Defendant attributes that decision not to assert the statute of limitations affirmative defense in the original answer because on its face, the Complaint alleges an Eighth Amendment violation based on Defendant's denial of dental care from December 17, 2003 until February 11, 2005, but Plaintiff's dental records, which Defendant did not receive for review until a later, unspecified date, establishes that Defendant was only involved with Plaintiff's dental care in December 2003. Id. at 3; Siragusa Declaration ¶¶ 4, 7, 10-11, thereby rendering Plaintiff's Eighth Amendment claim untimely under the applicable three-year statute of limitations. Finally, Defendant asserts that allowing Defendant to assert that the action is time-barred would not be futile as such defense could entirely bar litigation of Plaintiff's claim. Defendant's Memorandum at 3. As stated, Plaintiff has not presented any argument in opposition to Defendant's motion.
Fed.R.Civ.P. 15 provides that leave to amend a pleading "shall be freely granted when justice so requires." An amended complaint may be filed pursuant to Fed.R.Civ.P. 15(a) where the new allegations do not unduly prejudice an opponent, are not the result of undue delay or bad faith, and are not futile. Foman v. Davis, 371 U.S. 178, 181 (1962). Accord Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000) ("In general, district courts should not deny leave unless there is a substantial reason to do so, such as excessive delay, prejudice to the opposing party, or futility (citing cases)). Absent a showing that significant additional discovery burdens will be incurred or that the trial of the matter will be significantly delayed, amendment should be permitted. Block v. First Blood Associates, 988 F. 2d 344, 350 (2d Cir. 1993). Here, the court finds the circumstances warrant permitting the amendment.
In particular, Defendant's explanation, undisputed by Plaintiff, that from the face of Plaintiff's complaint, it is not evident that Plaintiff's Eighth Amendment failure to treat claim potentially is time-barred, and it was not until Defendant received and reviewed Plaintiff's dental records that Defendant realized the records fail to establish any personal involvement by Defendant in Plaintiff's dental care beyond December 2003, establishes that the motion is not made in bad faith. Although Defendant does not specify when Plaintiff's dental records were received and reviewed, Plaintiff does not argue that Defendant unduly delayed in making the instant motion. Nor has Plaintiff argued, or provided any evidence establishing, that Defendant's assertion of the statute of limitations defense is futile. Indeed, should the evidence establish, either on summary judgment or at trial, that Dr. Mewar was not personally involved with Plaintiff's dental care after December 2003, the action, filed August 22, 2007, would be time-barred given that the statute of limitations applicable to Plaintiff's Eighth Amendment deliberate ...