The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by Honorable William M. Skretny on July 19, 2010, for all nondispositive pretrial matters. The matter is presently before the court on Plaintiff's motions to amend the Complaint (Doc. No. 33), filed October 12, 2010, and to compel discover (Doc. No. 50), filed February 3, 2011.
Plaintiff Geneo Brown ("Plaintiff" or "Brown"), proceeding pro se, commenced this civil rights action on November 4, 2009, while incarcerated at Shawangunk Correctional Facility ("Shawangunk"). Defendants to this action include New York State Department of Correctional Services ("DOCS"), New York State Office of Mental Health ("OMH"), and various current or former DOCS employees, including DOCS Commissioner Brian Fischer ("Fischer"), DOCS Deputy Commissioner Lucien J. LeClaire ("LeClaire"), Southport Correctional Facility ("Southport") Superintendent David Napoli ("Napoli"), DOCS Regional Medical Director Marshal Trabout, M.D. ("Dr. Trabout"), Southport Deputy Superintendent of Administration Marilyn Bridge ("Bridge"), Joseph Haluska, M.D. ("Dr. Haluska"), Deputy Superintendent of Health Services J. Antonsen ("Antonsen"), Nursing Administrator Henderson ("Henderson"), Correctional Sergeant David Chapman ("Chapman"), Correctional Officer ("C.O.") Gilboy ("Gilboy"), C.O. Deburgomaster ("Deburgomaster"), and Hearing Officer Esgrow ("Esgrow")*fn1 (together, "Defendants"). All Defendants have been served and have appeared in this action.
Plaintiff asserts four claims for relief alleging violations of his constitutional rights including violations of 42 U.S.C. §§ 1983, 1985, 1986, the First Amendment right to seek redress of grievances and to exercise his religion, the Eighth Amendment right to be free from cruel and unusual punishment, denial of due process under the Fifth and Fourteenth Amendments, and conspiracy to deny Plaintiff equal protection. An order filed March 25, 2010 (Doc. No. 3) ("March 25, 2010 Order"), dismissed with prejudice that portion of Plaintiff's First Claim alleging the filing of a false misbehavior report by Chapman, Deburgomaster, and Gilboy, Plaintiff's claims for monetary damages against the individual defendants in their official capacities, that portion of Plaintiff's Fourth Claim against DOCS and OMH under 42 U.S.C. § 1985-1986, and all claims alleging violations of Plaintiff's First Amendment right to free exercise of his religion and violations of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc ("RLUIPA"). March 25, 2010 Order at 19.
On October 12, 2010, Plaintiff filed a motion to amend the Complaint (Doc. No. 33) ("Plaintiff's Motion to Amend"), supported by the attached Affirmation/Affidavit in Support of Motion (Fed.R.Civ.P. § 15(a)) ("Plaintiff's Affirmation Supporting Amendment"), and a copy of the proposed Amended Complaint (Doc. No. 33-1) ("Proposed Amended Complaint"). Plaintiff seeks to amend the Complaint to add four claims for relief, including (1) Defendants withheld from Plaintiff good time credits to retaliate against Plaintiff, in violation of the First and Fourteenth Amendments ("Proposed Fifth Claim"); (2) common law tort claims for assault and battery, abuse of process, medical malpractice, negligence, and fraud ("Proposed Sixth Claim"); (3) religious discrimination based on interference with Plaintiff's kosher diet in violation of the First, Fourth, Eighth, and Fourteenth Amendments and 42 U.S.C. § 1981 ("Proposed Seventh Claim"); and (4) conspiracy to have Plaintiff force-fed, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986 ("Proposed Eighth Claim"). On December 2, 2010, Defendants filed Defendants' Memorandum of Law in Opposition to Plaintiff's Motion to Amend (Doc. No. 40) ("Defendants' Memorandum Opposing Amendment"). In further support of Plaintiff's Motion to Amend, Plaintiff filed on December 20, 2010, Plaintiff's Reply to Defendants Response Memorandum of Law in Opposition (Doc. No. 45) ("Plaintiff's Reply Supporting Amendment"), with exhibits A through F ("Plaintiff's Amendment Exh(s). __").
On February 3, 2011, Plaintiff filed a motion to compel (Doc. No. 50) ("Plaintiff's Motion to Compel"), supported by the attached Affidavit in Support of Motion to Compel (Fed.R.Civ.P. 37) ("Plaintiff's Affidavit Supporting Discovery"), and exhibits ("Plaintiff's Discovery Exhibits"). On February 23, 2011, Defendants filed in opposition to Plaintiff's Motion to compel the Declaration of Assistant Attorney General Kim S. Murphy (Doc. No. 59) ("Murphy Declaration"), with attached exhibits A and B (Murphy Declaration Exh(s). __"). On March 7, 2011, Plaintiff filed in further support of Plaintiff's Motion to Compel Plaintiff's Reply Affirmation (Doc. No. 62) ("Plaintiff's Reply Supporting Discovery"). Oral argument was deemed unnecessary.
Based on the following, Plaintiff's motion to amend is DENIED in part and GRANTED in part; Plaintiff's motion to compel is DISMISSED as moot in part, GRANTED in part, and decision is RESERVED in part.
On November 9, 2007, Plaintiff was transferred from Auburn Correctional Facility to Southport Correctional Facility ("Southport" or "the correctional facility"). After being processed at Southport, Plaintiff was provided with a jumpsuit into which Plaintiff was to change and then report to OMH. According to Plaintiff, when he complained that the jumpsuit was too small and requested a larger size, Defendants Chapman, Deburgomaster, and Gilboy assaulted Plaintiff and then subjected Plaintiff to a false misbehavior report in connection with the assault ("the misbehavior report"). Plaintiff maintains that after the November 9, 2007 incident, he was placed on B-Block, 3 Company, 1 cell, where Plaintiff was denied meals, prompting Plaintiff to declare himself on a hunger strike on November 13, 2007. On November 16, 2007, Plaintiff prepared a statement declaring his reasons for the hunger strike, including the alleged November 9, 2007 assault, threats by corrections officers, and the filing of the misbehavior report.
On November 19, 2007, Plaintiff was interviewed by Defendants Deputy Superintendent of Administration Bridge and a psychologist regarding Plaintiff's hunger strike, transferred to the correctional facility's infirmary, and served with an order to show cause and petition filed by Defendant Southport Superintendent Napoli in state court seeking an order allowing DOCS to force-feed Plaintiff and to allow Plaintiff's blood to be drawn for testing to ascertain whether a proper level of electrolytes was maintained throughout Plaintiff's hunger strike. The order to show cause was supported by affidavits prepared by Defendants Napoli, Dr. Haluska, DOCS Regional Medical Director Dr. Trabout, and Bridge. Plaintiff maintains the order to show cause was filed to retaliate against Plaintiff for filing inmate grievances and for exercising his religion, and that Plaintiff was not necessarily on a "hunger strike," but was fasting to protest Defendants' alleged deprivation of his religious rights.
On November 29, 2007, Plaintiff attended a hearing on the order to show cause in state court ("Show Cause Hearing"), subsequent to which an order ("the court order") was issued permitting DOCS to force-feed Plaintiff. In accordance with DOCS Directive # 4309, Defendants DOCS Commissioner Fischer, and Deputy DOCS Commissioner LeClaire were provided with regular updates regarding the force-feeding of Plaintiff. On December 6, 2007, Plaintiff agreed to eat and to allow his blood to be drawn and tested by DOCS medical staff to ascertain the electrolytes level, and Plaintiff was released from the infirmary.
On December 27, 2007, Plaintiff was again transferred to the correctional facility's infirmary and held in isolation where Plaintiff maintains he was subjected to repeated harassment by the medical staff, including unnecessary monitoring of Plaintiff's weight and vital signs which was permitted under the court order, but which Plaintiff asserts was not then necessary because Plaintiff had discontinued his hunger strike and resumed eating. Plaintiff maintains the transfer back to the infirmary was intended to isolate and separate Plaintiff from his legal work and to retaliate against Plaintiff for commencing another legal action.
On March 19, 2008, Plaintiff filed inmate grievance # SPT-43500-08 ("the Inmate Grievance"), complaining that the toilet, water, and lights in Plaintiff's prison cell had not functioned since March 14, 2008, that he was assaulted by several unidentified corrections officers on January 18, 2008 while returning from the shower to his cell, and that on January 28, 2008, while Plaintiff was showering, Defendant Chapman made verbal threats to Plaintiff regarding a written complaint made by Plaintiff pertaining to the January 18, 2008 assault. On March 21, 2008, Defendant Chapman moved Plaintiff to a different area of the correctional facility, a move which Plaintiff maintains was to retaliate against Plaintiff for filing the Inmate Grievance on March 19, 2008. Plaintiff maintains that while being escorted to his new cell, he was assaulted by Chapman and several other corrections officers.
On April 24, 2008, to protest the January 18, 2008 assault, the January 28, 2008 threat, the five-day deprivation of a toilet, water and lights in his cell, and the March 21, 2008 assault, Plaintiff commenced a second hunger strike and was transferred to the infirmary where Plaintiff was force-fed. Plaintiff explained to Defendant Bridge, DOCS medical staff and OMH staff that Plaintiff's hunger-strike was actually a religious expression of fasting to protest the alleged assaults and mistreatment, and that he voluntarily consumed water, but the force-feeding continued. On August 6, 2008, Plaintiff was transferred to University Hospital in Syracuse for insertion of a "PEG tube"*fn3 pursuant to a request by Dr. Trabout. On August 7, 2008, Plaintiff was transferred to Walsh Regional Medical Unit ("Walsh RMU"), at Mohawk Correctional Facility in Rome, New York, where he was force-fed through the PEG tube until August 11, 2008, when Plaintiff was re-assigned to Kosher (Alternative) Meal Status and discontinued his hunger strike, but remained in Walsh RMU.
On August 20, 2008, the physician who inserted Plaintiff's PEG tube refused to remove it, but stated he would reconsider whether to remove Plaintiff's PEG tube in four months. Plaintiff complained that he was being denied his Kosher Cold Alternative Diet ("CAD") meals and, on December 15, 2008, Defendant Nurse Administrator Henderson spoke with Plaintiff about the alleged denial of his CAD meals. Plaintiff filed a grievance regarding the denial of his CAD meals, which was denied. Despite the fact that Plaintiff did not engage in any further hunger strikes after resuming eating on August 11, 2008, Plaintiff remained at Walsh RMU until April or May 2009, when the PEG tube was removed and Plaintiff was transferred to Shawangunk Correctional Facility on May 20, 2009.
Plaintiff seeks to amend the Complaint to add four claims for relief, including (1) Defendants withheld from Plaintiff good time credits to retaliate against Plaintiff, in violation of the First and Fourteenth Amendments ("Proposed Fifth Claim"); (2) common law tort claims for assault and battery, abuse of process, medical malpractice, negligence, and fraud ("Proposed Sixth Claim"); (3) religious discrimination based on interference with Plaintiff's kosher diet in violation of the First, Fourth, Eighth, and Fourteenth Amendments and 42 U.S.C. § 1981 ("Proposed Seventh Claim"); and (4) conspiracy to have Plaintiff force-fed, in violation of 42 U.S.C. §§ 1981, 1985, and 1986 ("Proposed Eighth Claim"). Defendants maintain the four proposed new claims should be denied as futile. Defendant's Memorandum Opposing Amendment at 3.
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). 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).
Where a requested pleading amendment is futile, "it is not an abuse of discretion to deny leave to amend" to the moving party. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). See Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997) ("Leave to amend need not be granted . . . where the proposed amendment would be futile.") (internal citation and quotation marks omitted). A determination that a proposed claim is futile is made under the same standards that govern a motion to dismiss under Rule 12(b)(6). A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 160 F.Supp.2d 657, 666 (S.D.N.Y.2001). "A proposed amendment to a pleading would be futile if it could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Oneida Indian Nation of New York v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003). See Jones v. New York Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999) (holding an amendment is futile "if the proposed amended complaint would be subject to 'immediate dismissal' for failure to state a claim or on some other ground.").
Further, although a motion to amend a complaint brought pursuant to Fed. R. Civ. P. 15(a) provides that leave to file an amended complaint "shall be freely given," this standard "must be balanced against the requirement under Rule 16(b) that the Court's scheduling order 'shall not be modified except upon a showing of good cause.'" Grochowski v. Phoenix Construction, 318 F.3d 80, 86 (2d Cir. 2003) (quoting Fed. R. Civ. P. 15(a) and 16(b)). See Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 447 (W.D.N.Y. 1997) (a Rule 16(b) scheduling order "shall not be modified except upon a showing of good cause"). Here, however, Plaintiff's Motion to Amend was filed on October 12, 2010, well before the January 14, 2011 deadline for moving to amend set forth in the October 12, 2010 Scheduling Order (Doc. No. 32). As such, Plaintiff's Motion to Amend was timely filed in accordance with the ...