The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
Patrick R. Smith, initially proceeding pro se, brought suit pursuant to
42 U.S.C. § 1983 ("section 1983") claiming that he was subjected to excessive
force while in the custody of the Westchester County Department of Corrections
("WCDOC").*fn1 More specifically, Smith claimed that he was assaulted by
Correction Officer Neil Gottlob, Correction Officer Hugh Rennalls and Sergeant
John Doe of the Westchester County Emergency Response Team Unit
December 5, 2006, in the booking area of the Westchester County
Jail.*fn3 Plaintiff now moves for permission to file a
Second Amended Complaint, pursuant to Federal Rule of Civil Procedure
15 ("Rule 15"), to add Correction Officer Derrick Holmes as a
defendant in place of Correction Officer Hugh Rennalls.*fn4
For the following reasons, plaintiff's motion is
Plaintiff filed his pro se Complaint on March 1, 2007, and the 120-day period for service set forth in Federal Rule of Civil Procedure 4(m) ("Rule 4(m)") expired on June 29, 2007. On July 7, 2008, Officers Gottlob and Rennalls (the "County Defendants") served plaintiff with their automatic disclosures pursuant to Federal Rule of Civil Procedure 26(a) (the "Rule 26(a) Disclosures"). In the Rule 26(a) Disclosures, the County Defendants identified the following individuals as likely to have discoverable information: Captain Stephen McMahon, Sergeant James McGuire, Correction Officer Sebastian DiPaterio, Correction Officer Neil Gottlob, Correction Officer Kevin Kavana, Sergeant Francis DelGrosso, Correction Officer Daniel Cortes, and Warden Anthony Amicucci.*fn5 Defendants' Rule 26(a) Disclosures did not, however, list Officers Derrick Holmes and Marcelo Diaz even though they were responding ERT members who were present during the incident. Nor did the Rule 26(a) Disclosures list Officer Rennalls, even though he is named in the original Complaint as the officer who twisted plaintiff's foot. Officers Holmes and Diaz were first identified in a May 5, 2011 letter from Shannon Brady, counsel for the County Defendants, to this Court.*fn6 The County Defendants also identified documents within their possession which included, inter alia, "Reports and/or video prepared by officers and supervisors as a result of the incident that occurred on December 5, 2006."*fn7
Depositions followed: on February 12, 2009, plaintiff was deposed; on February 18, 19 and 20, 2009, plaintiff took the depositions of Officer Rennalls, Sergeant DelGrosso and Officer Gottlob, respectively, telephonically and while still proceeding pro se. During Sergeant DelGrosso's deposition, plaintiff asked for the names of the other ERT officers who responded with Sergeant DelGrosso.*fn8
Sergeant DelGrosso responded by identifying Officers Rennalls and Ficarrotta but then claimed that he did not have the names of the other officers in front of him.*fn9
At this point, defense counsel interjected that, in answering plaintiff's question, Sergeant DelGrosso was referring to a report previously identified as County Exhibit H.*fn10 Plaintiff asked Officer Rennalls a similar question to which Officer Rennalls replied that he could only identify Sergeant DelGrosso.*fn11
During the deposition of Officer Gottlob, Brady notified plaintiff of her intention to send him the "DVD of the ERT video" (the "DVD").*fn12 On June 4,
2009, Magistrate Judge Ronald L. Ellis signed an Order directing the
North Carolina Department of Correction ("NCDOC"), who had custody of
Smith at the time, to permit plaintiff to view the DVD .*fn13
On June 15, 2009, plaintiff received a copy of the DVD which
the NCDOC permitted him to view. On June 23, 2009, plaintiff filed a
Rule 26 disclosure, stating his intention to use the DVD as trial
On January 13, 2011, Michael A. Deem filed a Notice of Appearance on plaintiff's behalf. On May 26, 2011, three weeks after the receipt of Brady's letter identifying all of the members of the ERT, plaintiff filed his First Amended Complaint ("FAC").*fn15 In the FAC, plaintiff alleges that upon being released from his holding cell the morning of December 5, 2006, he approached another inmate.*fn16
This behavior alerted Officer Gottlob who tackled plaintiff, bringing both of them to the ground.*fn17 Plaintiff claims that he was then "kicked, punched and beaten in . . . the face, groin and stomach by several uniformed correction personnel of the Jail[.]"*fn18 Members of the ERT responded to the incident and Officer Rennalls was one of the first ERT members to arrive on the scene.*fn19 According to plaintiff, while he was lying on the ground being kicked, punched and beaten, "C.O. Rennals [sic] grabbed Mr. Smith's right foot and intentionally or recklessly twisted it with great force, causing Mr. Smith to suffer a severe tear to his Achilles tendon."*fn20 In no uncertain terms, plaintiff identified Officer Rennalls as the person who twisted his leg, causing injury to his Achilles tendon. Plaintiff first identified Officer Rennalls as the person who twisted his foot in his original pro se Complaint, stating:
See 5/5/11 Conference Transcript at 36.
Officer Gottlob jumped on my back and wrapped his arm around my neck and his weight brought me to the floor. While on the floor, Emergency Response Team Sargeant [sic] John Doe kicked me in the scrotum, then Officer Rennalls #634 twisted my right foot and kept twisting it while Sargeant [sic] John Doe of the Emergency Response Team repeatedly kick[ed] me in my side and stomach. I kept screaming I'm not resisting until someone maced me in my mouth. Gottlob's arm was around my neck from behind during the entire incident.*fn21
Plaintiff maintained his identification of Officer Rennalls during his deposition, where he testified as follows:
Q. When ERT arrived, were there any officers holding you? You indicated you were laying on your side; was anyone holding you down at that point?
A. Yes, Officer Gottlob was still -- he still had his hand wrapped around my neck.
Q. Okay, so was he lying on the ground with you?
Q. Okay. So when ERT arrived, what happened?
A. They just started kicking me and punching me and whatever else, kicking me and punching me. And officer -- after I kept yelling, I'm not resisting, for God knows how many times, maybe 20, 30 times, somebody maced me in my mouth, and I wasn't able to say anything.
Q. Where were they kicking you and punching you?
A. I my stomach, my groin. I was punched in the face several times.*fn22
Q. Okay. You indicated that Officer Rennals twisted your leg?
Q. How did you know it was him?
Q. Okay. How were you -- how were you laying when your leg got twisted?
A. I was laying on my side in an L-shape, rather like. In other words, if I was upright, I would have been actually sitting up with my leg stretched out.
Q. Okay. So you were looking down at your feet?
A. I was looking down at my feet. Once I felt the pain, I looked ...