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Beverly Henry, Thaddeus Rogier v. County of Niagara

July 5, 2011


The opinion of the court was delivered by: Hon. Hugh B. Scott


Before the Court is plaintiffs' motions (a) for leave to amend the Complaint and (b) for an extension of time to serve John Doe defendants (Docket No. 24*fn1 ). Responses to this motion were due by June 10, 2011, with any reply due by June 21, 2011 (Docket No. 25). After granting defendants' request to submit a sur-reply, that paper was due by July 8, 2011, and the motion was then deemed submitted, without oral argument (Docket No. 31). Defendants filed their sur-reply on June 24, 2011 (Docket No. 32), and the motion was thus deemed submitted as of that date.


This is a civil rights action where plaintiffs allege unreasonable seizure, racial profiling, and infringement on their right to travel by being stopped and seized by Niagara County Sheriff's deputies when plaintiffs were approaching the Lewiston-Queenston Bridge, Lewiston, New York (see Docket No. 1, Compl.). Plaintiffs name the County of Niagara, its Sheriff's Department, and two named employees of that department (Ray Tracy and C.S. Page) as defendants (id. ¶¶ 3-7). Plaintiffs also are suing fifteen John Doe defendants, employees of the Niagara County Sheriff's Department allegedly involved in this incident (id. ¶¶ 8-9).

On April 28, 2009, plaintiffs were driving to Canada when they were stopped by Niagara County Sheriff's deputy Tracy within a half mile of the Lewiston-Queenston Bridge (id. ¶¶ 16-17). During this stop, another deputy brought a police dog to plaintiffs' vehicle to sniff it (id. ¶¶ 22-24). Plaintiff driver Thaddeus Rougier*fn2 then exited the vehicle, took out a camera to take pictures of this incident, when a deputy approached Rougier and took his camera (id. ¶¶ 25-26). Another deputy arrived and asked plaintiff Beverly Henry to step out of the vehicle. She asked to retrieve her jacket but was told officers would get it; when they did, they searched the jacket before handing it to her. (Id. ¶¶ 27-28.) Rougier then walked behind the vehicle when he was told by a deputy to not move and then was thrown upon the trunk of the deputy's vehicle with his hands pulled behind him, as if to handcuff him (id. ¶¶ 30-31), but then placed him (uncuffed) into the deputy's vehicle (id. ¶ 32). Henry then joined Rougier in the deputy's vehicle and both were detained (id. ¶ 33). More deputies arrived and then plaintiffs' luggage was removed from the trunk and searched on the side of the road (id. ¶ 37). Plaintiffs' vehicle was taken to the United States-Canadian border where an x-ray truck was used to examine the vehicle, as well as a second physical and canine inspection of the car's contents, not finding any drugs during this search (id. ¶¶ 41-43). Then defendants called over immigration officials to check plaintiffs' passports (id. ¶¶ 43-44). Defendants then issued plaintiffs traffic citations after detaining them for over three hours (id. ¶ 45), with these citations later dismissed (id. ¶ 53).

Plaintiffs allege that defendants violated plaintiffs' civil rights by unreasonably seizing and detaining them without due process of law (id., First Claim). Plaintiffs claim that defendants applied racial profiling based upon the race (African American) and national origin (Henry was born in Jamaica, Rougier in Grenada) of the plaintiffs (id., Second Claim, ¶¶ 1-2). Finally, they allege that defendants interfered with their right to travel (id., Third Claim).

Niagara County, its Sheriff's Department, Tracy and Page answered (Docket No. 5), and plaintiffs served a Reply to the counterclaim asserted in the Answer (Docket No. 9). Defendants filed their Rule 26(a)(1) disclosure on January 14, 2011 (Docket No. 11; see Docket No. 32, Sur-Reply Ex. A). In that notice, defendants named three deputy witnesses*fn3 aside from defendant Tracy and produced the incident report for the events in question (Docket No. 11, Def. Rule 26(a)(1) Disclosure at 2, Ex. A). This Court then entered a Scheduling Order (Docket No. 17), after extending plaintiffs' time to serve the John Doe defendants (Docket No. 15). Plaintiffs again moved for a "reasonable extension of time" to serve the John Doe defendants (Docket No. 22), which was granted in part, allowing service until May 20, 2011 (Docket No. 23). Plaintiffs' Present Motions

On May 12, 2011, plaintiffs now move for leave to file an Amended Complaint and for a further extension of time to serve the John Doe defendants (Docket No. 24). The amendments correct the spelling of Rougier's name and other minor spelling errors in the pleading; it names Deputy Raymond Needle instead of Deputy Page as a defendant; it identifies two other deputies as defendants, Craig Beiter and Daniel Douglas, and deletes references to John Doe defendants (see generally Docket No. 24, Redline/Strikeout Proposed Am. Compl.). The amendment seeks to clarify that plaintiffs were suing the deputies in their individual capacities and set out more fully their claims against Niagara County (Docket No. 24, Pls. Memo. at 3), namely that the County had a policy and practice of racially profiling drivers traveling in the County and applying facially neutral traffic laws in an intentionally discriminatory manner (id., Redline/Strikeout Proposed Am. Compl. newly inserted ¶¶ 18-19, Second Claim newly inserted ¶¶ 68-71). They argue that there was no undue delay in seeking this amendment and that defendants would not be prejudiced by it (Docket No. 24, Pls. Memo. at 2, 3-4). Given this motion for leave to amend, plaintiffs also seek an extension of the May 20, 2011, deadline to serve the (now identified) John Doe defendants (id. at 4).

Defendants object to the timing of plaintiffs' motion, since plaintiffs were provided initial disclosure on January 14, 2011, which gave them information (listing of witnesses, many of whom plaintiffs now seek to name as defendants, and producing an incident report) that could enable them to name these new defendants (Docket No. 27, Defs. Atty. Aff. ¶¶ 4-6, 8-11). Defendants contend that plaintiffs had a deadline as late as March 7, 2011 (Docket No. 17), in which to amend pleadings or move to add parties but instead waited until May 12, 2011, to do so (Docket No. 27, Defs. Atty. Aff. ¶¶ 8-11). They dispute that their subsequent discovery was necessary to reveal these parties to plaintiffs because they could have learned of them earlier in the initial disclosure (id. ¶¶ 12-13). Defendants argue that the substantive amendments add new allegations that now allege a § 1983 claim that the original Complaint failed to do, despite plaintiffs' contention that they are not seeking to add new causes of action with this amendment (id. ¶¶ 15-17). Finally, defendants refute plaintiffs' claim that the amendment would sue the deputies only in the individual capacity; comparing the original and proposed amended pleadings, defendants find no difference in that both allege claims against the deputies in their official and individual capacities (id. ¶ 18; compare Docket No. 1, Compl. ¶ 7 with Docket No. 24, Redline/Strikeout Proposed Am. Compl. newly renumbered ¶ 9). The proposed Amended Complaint does not remove the official capacity aspect of their suit against the deputies. Finally, defendants argue that this amendment would extend discovery beyond the July 7, 2011, Scheduling Order deadline (Docket No. 28, Defs. Memo. at 5), and no one has sought to extend the Scheduling Order either generally or to conduct additional discovery regarding these new defendants and claims.

Plaintiffs reply that they needed discovery beyond the defense's initial disclosure in order to identify the John Doe defendants and required additional time to serve them, hence their requests for extension of the 120 days in which to serve defendants under Rule 4(m) (Docket No. 30, Pls. Reply Memo. at 2-3). This initial disclosure only provided the names of witnesses and did not reveal their roles, nor did this disclosure discount Page's involvement in the incident (Docket No. 30, Pls. Atty. Reply Decl. ¶¶ 5-8, Exs. A, B (ticket issued by Page to plaintiffs)). They argue that they did not obtain definitive identification of these John Does until April 19, 2011, when defendants responded to their document requests (Docket No. 30, Pls. Reply Memo. at 3-4). Even if the request is outside of the Scheduling Order deadline, plaintiffs argue that leave may still be granted if the opponent cannot show that it was prejudiced by the timing of the motion (id. at 5). They deny seeking a new claim, instead, plaintiffs assert that they are clarifying or amplifying their existing claims (id. at 6).

Defendants, in their sur-reply, refute that the initial disclosure provided limited information, pointing to the attached incident report which identified the participants (Docket No. 32, Defs. Atty. Sur-Reply Aff. ¶¶ 3-5, Ex. A).

In setting the briefing for this motion, the Court held in abeyance the May 20, 2011, deadline for service of the John Doe defendants until after resolution of this motion (Docket No. 25).


I. Applicable ...

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