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Hodge v. Perilli

September 30, 2010


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge



Pro se Plaintiff Martin Hodge ("Hodge") is an inmate with a back problem. His lawsuit demonstrates what can happen when a pro se incarcerated inmate, with plenty of time on his hands, decides to litigate his own version of "The Princess and the Pea."

From 1992 through 2000, New York State Department of Corrections ("DOCS") officials issued Hodge medical permits allowing him to use two state issued mattresses to alleviate his back pain and help him sleep. Hodge was satisfied, until he was transferred to Sing Sing Correctional Facility ("Sing Sing") in 2000. Dr. John Perilli ("Dr. Perilli"), Sing Sing's Facility Health Services Director, refused to renew Hodge's permit for a double mattress. According to Dr. Perilli, two mattresses is not a medically recognized treatment for Hodge's condition.

Hodge sees things differently. He commenced litigation in New York State Supreme Court concerning the double mattress. He brings this action under 42 U.S.C. § 1983, claiming that Dr. Perilli and DOCS' Chief Medical Officer, Dr. Lester Wright ("Dr. Wright") (together, "Defendants") were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. As relief, Hodge seeks $850,000 in damages and an injunction requiring Defendants to provide appropriate treatment for his back.

The Court referred the general pretrial matters and dispositive motions in the case to Magistrate Judge Michael Dolinger on April 28, 2006. On March 23, 2009, after the close of discovery, Defendants moved for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Hodge opposes the motion, and also requests additional discovery, sanctions and an order requiring Defendants to turn over certain medical records. On July 12, 2010, Magistrate Judge Dolinger issued a Report and Recommendation ("R&R") recommending that the Court grant Defendants motion for summary judgment and deny Hodge's barrage of discovery-related requests. Hodge filed timely objections to the R&R on July 23, 2010. The Court has reviewed the R&R and Hodge's objections. For the reasons that follow, the Court adopts Magistrate Judge Dolinger's findings and recommendations. Defendants' motion for summary judgment is GRANTED.


I. Procedural History and Pending Objection

Hodge commenced this action on March 29, 2006. In his initial complaint, Hodge asserted an Eighth Amendment claim for denial of medical care, and a claim under the First and Fourteenth Amendments for an alleged retaliatory transfer to a different prison facility. Dr. Wright moved to dismiss the claims against him under Rule 12(b)(6) of the Federal Rules of Civil Procedure on July 11, 2006. On June 22, 2007, Magistrate Judge Dolinger issued a Report and Recommendation recommending that the Court deny Dr. Wright's motion to dismiss Hodge's Eighth Amendment claim, but grant the motion as to the retaliation claim. Since the complaint did not allege that either of the Defendants were involved in the claimed retaliation, or that they acted with retaliatory animus, Magistrate Judge Dolinger also recommended dismissing the retaliation claim against Dr. Perilli sua sponte. Hodge did not file objections, and the Court adopted Magistrate Judge Dolinger's Report and Recommendation in an order dated July 25, 2007. The Court's order clearly states that the retaliation claim is dismissed as to both Defendants "without prejudice to amendment within 30 days of this order." (Order dated July 25, 2007 at 2.)*fn1

Hodge did not replead his retaliation claim within thirty days, but instead filed a motion to amend his complaint over two months later on September 28, 2007. In a proposed amended complaint dated September 21, 2007, Hodge sought to include additional factual allegations concerning the purported retaliation, and to join three new defendants, two of which Hodge claimed were involved in the alleged retaliation. The proposed amended complaint also included additional allegations relating to Hodge's Eighth Amendment claim against Drs. Perilli and Wright. In a memorandum and order dated January 7, 2008, Magistrate Judge Dolinger denied the motion to amend to the extent Hodge sought to add new defendants and claims, but granted the motion to the extent Hodge sought to include additional allegations relating his Eighth Amendment claim. (Memorandum and Order dated 1/7/2008; 2008 WL 141093 (S.D.N.Y.)) Hodge did not file objections to Magistrate Judge Dolinger's decision.

Magistrate Judge Dolinger denied Hodge's repeated requests to add another prison doctor as a defendant, and after ruling on a number of discovery disputes, ordered discovery to conclude by December 30, 2008. In a letter dated November 12, 2008, Hodge once again requested leave to amend the complaint, this time to include additional allegations against Dr. Perilli. Magistrate Judge Dolinger directed Hodge to submit a proposed amended complaint, which he did on November 25, 2008. In his proposed amended complaint dated October 17, 2008, Hodge significantly expanded the scope of his Eighth Amendment claim against Dr. Perilli, increased the ad damnum clause from $500,000 to $850,000 and added a request for injunctive relief.

In a memorandum and order dated December 30, 2008, Magistrate Judge Dolinger denied Hodge's request to amend the complaint to include additional allegations against Dr. Perilli, but granted Hodge leave to increase the ad damnum clause and add a prayer for injunctive relief. (Memorandum and Order dated 12/30/2008 at 9.) From the outset of this litigation, Hodge has alleged that Defendants violated his Eighth Amendment rights by denying him a second mattress while he was incarcerated at Sing Sing from 2000 through 2003. (Id. at 4.) As Magistrate Judge Dolinger explained, the proposed amended complaint alleges that at various times through Hodge's stay at Sing Sing, Dr. Perilli failed to provide him with prompt and adequate medical care for his back. For example, Hodge alleges that Dr. Perilli neglected to send him to an outside consultant in a timely manner, and that the specific treatments Dr. Perilli ordered for his back were inadequate. The intent of Hodge's new allegations, according to Magistrate Judge Dolinger, was to provide the basis for a separate, or substantially enlarged, Eighth Amendment deliberate indifference claim. (Id.)

Magistrate Judge Dolinger concluded that Hodge's new allegations, which address his treatment from 1996 through 2002, are time-barred by the three-year statute of limitations applicable to § 1983 claims, and that amendment would therefore be futile. (Id. at 5-7.) Magistrate Judge Dolinger also held that Hodge's undue delay in moving to amend provided an independent basis for denying the motion. (Id. at 7-8.) At the time he moved to amend, Hodge had already been deposed, and defense counsel did not inquire into his treatment history prior to 2003. Magistrate Judge Dolinger explained that if Hodge were allowed to pursue his recently revised (or newly minted) Eighth Amendment claim, Defendants would be required to re-depose Hodge, and that the latest extended discovery deadline would have to be extended yet again. This would delay final adjudication of the case, and inure to the detriment of Defendants and the Court. (Id. at 8.)

On January 8, 2009, Hodge submitted timely objections to Magistrate Judge Dolinger's December 30, 2008 memorandum and order. (Objections 1/8/2009.) In his objections, Hodge argues that the new allegations in the proposed amended complaint merely "clarify" allegations made in the original complaint, and that he will be prejudiced by Magistrate Judge Dolinger's denial of the motion to amend. (Id. ¶ 1-8.) Hodge contends that his new allegations are not time-barred because Dr. Perilli subjected him to a "continuing wrong." (Id. ¶ 6.) Since Hodge is "an untutored Pro Se litigant," he claims Magistrate Judge Dolinger should have allowed him to amend the complaint nearly three years after the commencement of this action and one month before the end of a repeatedly extended discovery period. (Id. ¶ 9.)

Although the Second Circuit has not expressly held whether motions to amend the complaint are "dispositive" or "nondispositive" for purposes of Rule 72 of the Federal Rules of Civil Procedure, the Court has suggested that such motions are "nondispositive" and therefore district courts should apply Rule 72(a)'s "clearly erroneous" or "contrary to law" standard to a magistrate judge's decision denying leave to amend. See Fielding v. Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) ("As a matter of case management, a district judge may refer nondispositive motions, such as a motion to amend the complaint, to a magistrate judge without the parties' consent." (citing 28 U.S.C. § 636; Fed. R. Civ. P. 72(a).) Moreover, "[t]he weight of opinion appears to favor treating such rulings as nondispositive, requiring a 'clearly erroneous' standard of review." Sokol Holdings, Inc. v. BMB Munai, Inc., No. 05 cv 3749(KMW)(DCF), 2009 WL 3467756, at *4 (S.D.N.Y. Oct. 28, 2009) (collecting cases); Bridgeport Music, Inc. v. Univ. Music Group, Inc., 428 F.R.D. 408, 410 (S.D.N.Y. 2008). This court is of the view that a magistrate judge's decision on a motion to amend is nondispositive, and that clear error review under Rule 72(a) is appropriate. See Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(a).

Regardless of whether Hodge's new allegations could support a timely Eighth Amendment claim under the "continuing violation doctrine," Schomo v. City of New York, 579 F.3d 176, at 182 (2d Cir. 2009), Magistrate Judge Dolinger's decision to deny leave to amend based on the prejudice to Defendants and the Court was not clearly erroneous. Pro se or not, Hodge's attempt to present Defendants with a moving target and change course three-years into the litigation cannot be countenanced. Since Hodge has not shown that Magistrate Judge Dolinger's decision denying leaving to amend was clearly erroneous or contrary to law, his ...

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