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Hernandez v. Dormer

July 7, 2010


The opinion of the court was delivered by: William D. Wall, United States Magistrate Judge


Before the court is plaintiff pro se Joseph D. Hernandez's motion to amend his complaint to add a new defendant, Peter C. Stein. See Docket Entry ("DE") [27]. For the reasons set forth herein, it is respectfully recommended that the motion be denied.


Plaintiff filed his complaint on December 4, 2009 alleging violations of 42 U.S.C. §1983 against approximately fourteen defendants including inter alia the Suffolk County Police Department, individual police officers, the Suffolk County District Attorney, the Suffolk County Executive, the Suffolk County Legislature, the Legal Aid Society of Suffolk County as well as individual attorneys employed by Legal Aid, an individual named Paul W. Shaughnessy, and the Governor and Attorney General of the State of New York. He now seeks to add Stein, his former court-appointed attorney in the state court proceeding, as a defendant. The facts are taken from the complaint.

Plaintiff's complaint stems from an incident that occurred on October 19, 2008. According to the complaint, plaintiff was physically and sexually assaulted by defendant Shaughnessy in the corridor between their two apartments. Compl. §III, ¶ 1, DE [1]. Plaintiff says he used a fire extinguisher to strike two defensive blows to Shaughnessy. Id. Plaintiff, who is of Puerto Rican descent, believes the attack was racially motivated. After Shaughnessy fled, passers-by heard plaintiff's cries and called 911. Id. Upon arriving at the scene, the police officers urged plaintiff to accompany them to the police station, at which time plaintiff was read his "Miranda" rights, placed under arrest and handcuffed to a table. Id. at §III, ¶¶1, 2.

The Complaint proceeds to describe plaintiff's experiences in state court, including the actions of various police officers, judges, and attorneys. Plaintiff claims that he has been the victim of a Hate Crime, that his civil rights have been violated, and that the defendants "aided and abetted the assaults, false arrest and false imprisonment of the plaintiff; as well as the violations of the plaintiff's civil rights as protected and guaranteed under the United States Constitution." Compl. §V, ¶21.*fn1

The only mention of Stein in the original complaint is a single, lengthy paragraph in which plaintiff alleges that Stein was assigned as plaintiff's counsel on October 20, 2009, that Stein had a "lack of interest" in representing plaintiff, that Stein refused to acknowledge that plaintiff was a victim of a hate crime, that plaintiff discharged Stein, and that Stein has become belligerent towards plaintiff. Compl. §III, ¶12. Now before the court is plaintiff's motion to amend the complaint to add further allegations against Stein and to add him as a defendant. For purposes of this motion, these allegations will be referred to as the proposed Amended Complaint ("Am. Compl.").*fn2

The allegations against Stein in the proposed Amended Complaint fall into several general categories. The largest number of allegations concern the quality and nature of Stein's representation of plaintiff. Plaintiff claims that Stein refused to provide a proper defense, Am. Compl. ¶¶1, 14, refused to meet with plaintiff to prepare, id. at ¶7, refused to obtain evidence, id. at ¶8, refused to "engage" with the District Attorney's Office, id. at ¶6, refused to make sure plaintiff had his "right to due process," id. at ¶1, caused delay, id. at ¶2, failed to keep plaintiff informed about a conference, id. at ¶9, violated attorney client privilege, id. at ¶13, and willfully acted to plaintiff's detriment. Id. at ¶¶17, 18. Plaintiff further claims that Stein made a "mockery" of the assault, id. at ¶¶4, 7, and viewed the crimes against him as "humorous." Id. at ¶5. Stein also "presumed" that plaintiff was guilty. Id. at ¶13.

Another set of allegations concerns motions made by Stein to withdraw as plaintiff's counsel. According to plaintiff, Stein acted belligerently and sarcastically concerning plaintiff's desire to appear pro se, id. at ¶10, fabricated threats and made misstatements in the motions, id. at ¶11, 12, and committed a "felonious criminal act" by making false statements. Id. at ¶12. In a similar vein, plaintiff accuses Stein of billing Suffolk County for services he did not render. Id. at ¶18.


A. Standards for Motion to Amend

Rule 15(a) of the Federal Rules of Civil Procedure provides, in pertinent part, that "a party may amend [its] pleading . . . by leave of court," and that "leave shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); see also Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir. 1999) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). In making its determination, the court considers factors such as undue delay, prejudice to the defendants, and futility of the proposed amendments. See Foman, 371 U.S. at 182; MacDraw, Inc. v. CIT Group Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir. 1998); Harrison v. NBD, Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998). Although amendments are generally favored because "they tend to facilitate a proper decision on the merits," Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 137 (E.D.N.Y. 1998) (citation omitted), ultimately, "it is within the sound discretion of the court whether to grant leave to amend." John Hancock Mut. Life Ins. Co.v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Foman, 371 U.S. at 182).

Amendment should only be denied for good reasons such as "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virture of allowance of the amendment, futility of amendment, etc." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman, 371 U.S. at 182). An amendment is futile if the claim would be unable to withstand a Rule 12 (b)(6) motion to dismiss. See Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). Indeed, "[t]he standard for futility with respect to a motion to amend under Rule 15 is identical to the standard for a Rule 12 (b)(6) motion to dismiss - namely, the court must determine whether the allegations in the complaint state a claim upon which relief can be granted." Amna v. New York State Dep't of Health, 2009 WL 6497844, at *1 (E.D.N.Y. Sept. 3, 2009) (quoting Crippen v. Town of Hempstead, 2009 WL 803117, at *1 n.1 (E.D.N.Y. Mar. 25, 2009)).

On a motion to dismiss, the court "must accept as true all of the factual allegations contained in the complaint." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). This stricture, however, is not applicable to legal conclusions and the court is not "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, __ U.S. __ , 129 S.Ct. 1937, 1949-50 (2009). The court must "determine whether the 'well-pleaded factual allegations,' assumed to be true, 'plausibly give rise to an entitlement to relief.'" Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1950). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 129 S.Ct. at 1949 (internal quotation ...

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