The opinion of the court was delivered by: Marilyn Dolan GO United States Magistrate Judge
This order summarizes and further explains rulings made on the record during a conference held on December 16, 2010 with respect to plaintiff's motion for leave to file a second amended complaint to add additional defendants and additional claims for individual and municipal liability in this action brought under
28 U.S.C. § 1983.*fn1 Plaintiff alleges that she was falsely arrested and maliciously prosecuted in violation of her constitutional rights and seeks to assert three new claims and name additional police officers as defendants. The defendants oppose the motion on the grounds that amendment would be futile.
Rule 15(a) of the Federal Rules of Civil Procedure provides that the Court should freely give leave to amend a pleading when justice so requires. See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971); Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000). "'[U]nless a proposed amendment is clearly frivolous or legally insufficient on its face, the substantive merits of a claim or defense should not be considered on a motion to amend.'" Sterling v. Interlake Indus. Inc., 154 F.R.D. 579, 589 (E.D.N.Y. 1994) (citation omitted). Thus, courts should ordinarily grant leave to amend in the absence of bad faith by the moving party, undue prejudice or futility. Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Delay alone does not justify denial of leave to amend. See Rachman Bag Co. v. Liberty Mutual Ins. Co., 46 F.3d 230, 234 (2d Cir. 1995); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987). Ultimately, the decision to grant or deny a request to amend is within the discretion of the district court. Foman, 371 U.S. at 182; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994).
Plaintiff seeks to add a claim for failure to intervene in
the violation of her constitutional rights against each of the individual defendants named in the proposed complaint. While each individual defendant is alleged to have been either present at plaintiff's arrest, involved in her arrest processing or the investigation, in order for liability to attach they must have known that a constitutional violation was being committed. See Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994). The proposed second amended complaint contains no allegations that Detectives Childs, Duguid, Grant, Balsamo or Sergeant Pappas were involved in the decision to arrest plaintiff or knew the details of the investigation. Thus, adding a claim of failure to intervene would be futile as to those defendants.
2. Denial of Right to Fair Trial
Plaintiff proposes to add a claim that defendants Childs,
Cooke, Dauge, Balsamo and two undercover officers denied her right to a fair trial by fabricating evidence against her. Contrary to defendants' argument, the weight of authority is that a Sixth Amendment claim for denial of a fair trial is not duplicative of a malicious prosecution claim brought under the Fourth Amendment. Zahrey v. City of New York, 2009 WL 54495, at *24-*25 (S.D.N.Y. 2009) (citing cases). I also find that plaintiff's allegations are sufficient to state a claim that Detectives Cooke, Dauge and Undercover Officers 0054 and 0055 created and/or forwarded false evidence to prosecutors. Although Detectives Childs's and Balsamo's alleged involvement is limited to preparing the arrest report, those allegations are sufficient to state a claim for forwarding false evidence to the prosecutors.
3. Individual Liability of Detectives Grant, Balsamo and Sergeant Pappas Defendants also generally argue that the proposed claims against Detective Grant and Sergeant Pappas would be futile because the only specific allegations against them are that they were present at plaintiff's arrest. Plaintiff's allegations are not sufficient to sustain a false arrest claim absent any allegation that the defendants were personally involved in plaintiff's arrest. See Provost v. City of Newburgh, 262 F.3d 146, 155 (2d Cir. 2001). The allegation in the proposed Second Amended Complaint that the City stated in an interrogatory response that Grant and Pappas "participated" in the arrest does not amount to an admission that they were personally involved; the response may simply reflect that they were present at the scene.
However, the allegations regarding Detective Balsamo are more extensive. His involvement in the arrest report is sufficient ...