UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK
February 15, 2012
PATRICK R. SMITH, PLAINTIFF,
WESTCHESTER COUNTY DEPARTMENT OF CORRECTIONS, WARDEN AMICCUCI; CORRECTION OFFICER GOTTLOB; CORRECTION OFFICER RENNALLS #634; EMERGENCY RESPONSE TEAM, SERGEANT JOHN DOE, DEFENDANTS.
The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.
OPINION AND ORDER
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?
A. Yes, he was.
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?
A. Yes, he did.
Q. How did you know it was him?
A. Because I saw 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 down at my feet, yes.
Q. Okay. And you saw what?
A. I saw Officer Rennals grab my toes with his left hand and my heel with his right hand and twist my leg around.
Q. Okay. And when did that happen?
A. That happened while the whole thing was going on.
I mean --
Q. So you were being punched and kicked at the time that that happened?
A. Yeah, I was being kicked at that time.*fn23
Plaintiff then described when the various types of restraints were placed on him, as follows:
Q. Okay. And were you restrained in any way at that point?
A. I was restrained before the emergency response team entered the booking room.
Q. Were there any different restraints put on you when you were taken up off the ground?
Q. And what was that?
A. A chain waste [sic] -- waste [sic] chain, excuse me, a waste [sic] chain and leg restraints.
Q. Were those placed on you while you were still on the ground?
A. Excuse me?
Q. Were those restraints placed on you while you were still lying on the ground?
A. No, they weren't.
Q. When were they put on you?
A. They were put on me after I was decontaminated.
Q. Okay. So when you were lifted up off the ground, did you just have wrist restraints on?
A. Yes, they were behind my back.*fn24
With leave of the Court, Deem re-opened discovery and re-deposed Sergeant DelGrosso and Officer Rennalls, this time while viewing the DVD.*fn25
During his second deposition on September 30, 2011, Sergeant DelGrosso identified Correction Officers Derrick Holmes and Marcelo Diaz as the two ERT members closest to plaintiff's feet during the incident.*fn26 As a result of Sergeant DelGrosso's identification of Officers Holmes and Diaz, plaintiff now claims that it was Officer Holmes who twisted his foot. Plaintiff attributes his original identification of Officer Rennalls as his assailant to the similarity in appearance between Officers Rennalls and Holmes, which his attorney describes as follows: plaintiff believed that he observed Rennalls twist his ankle, and there was no reason to question that belief. However, it is now beyond gavel [sic] that plaintiff was mistaken, and understandably so. Plaintiff was sprayed in the face with a chemical agent prior to the ERT responding, thereby impairing his ability to see clearly. Rennalls and Holmes are both African-American males with similar facial features, they are nearly identical in height, build and weight, and their skin complexion is also very similar.*fn27
Plaintiff now seeks permission to file a Second Amended Complaint,*fn28
pursuant to Rule 15(c) on the ground that: (1) defendants' Rule 26 initial disclosures failed to identify Officers Holmes and Diaz as persons likely to have discoverable information; and (2) defendants failed to provide plaintiff with a copy of the DVD at the time they served their Rule 26 disclosures, waiting instead until Smith completed all of his depositions to produce the DVD.
II. LEGAL STANDARD
Leave to amend should be freely granted when justice so requires.*fn29
In considering whether to grant leave to amend, courts look to whether the nonmoving party would suffer prejudice and whether the amended pleading would be futile.*fn30 Under Rule 15(a), a "'district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.'"*fn31 "Amendment may be prejudicial when, among other things, it would 'require the opponent to expend significant additional resources to conduct discovery and prepare for trial or significantly delay the resolution of the dispute.'"*fn32 Futility is assessed using the same standard applicable to motions to dismiss, namely, whether a plaintiff has "plead enough facts to 'state a claim to relief that is plausible on its face.'"*fn33
Futility can be decided as a matter of law, in certain instances.*fn34 For example, where the "plaintiff moves to amend to add a defendant beyond the statute of limitations period, the proposed amendment is untimely and must be denied as futile unless it relates back to the date on which the original complaint was filed."*fn35 "Rule 15(c) . . . imposes three requirements before an amended complaint against a newly added defendant can relate back to the original complaint."*fn36
First, the claim against the newly named defendant must have arisen "out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. Rules Civ. Proc. 15(c)(1)(B), (C). Second, "within the period provided by Rule 4(m) for serving the summons and complaint" (which is ordinarily 120 days from when the complaint is filed, see Rule 4(m)), the newly named defendant must have "received such notice of the action that it will not be prejudiced in defending on the merits." Rule 15(c)(1)(C)(i). Finally, the plaintiff must show that, within the Rule 4(m) period, the newly named defendant "knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity." Rule 15(c)(1)(C)(ii).*fn37
Notice, the second relation back requirement, is the "linchpin" of Rule 15(c).*fn38
While actual notice is preferable, "constructive notice" may suffice in some instances. Constructive notice is derived from the presumed knowledge of the attorney who represents the original defendant(s) and who would represent the prospective defendant(s) if leave to amend were granted.
The court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the official(s) originally sued so long as there is some showing that the attorney knew that the additional defendants would be added to the existing suit.*fn39
The rationale for the constructive notice doctrine is as follows:
The constructive notice doctrine is based on the theory that the newly added defendant is not prejudiced by the lack of notice if his attorney has already begun preparing a defense for the named defendant during the limitations period. See Ramos v. City of Philadelphia, Civ.A. 01-5072, 2002 WL 32348790 at *4 (E.D.Pa. Sept.13, 2002) (The "concept of constructive notice is apparently based on the theory that if counsel is on notice to prepare a defense for additional defendants, then such defendants are not prejudiced by being named at a later date").
Therefore, in the majority of cases in this Circuit applying the constructive notice doctrine, the attorneys have clear knowledge of the identity of the unidentified defendant, within the limitations period, such that it would be logical to assume that a reasonable attorney would either (1) inform [her] client of the prospective lawsuit or (2) takes steps to begin preparing a defense.*fn40
In deciding whether the shared attorney has the requisite knowledge, the appropriate inquiry is whether that attorney "knew or should have known that the [prospective] defendants . . . would be named."*fn41 Thus, "the defendants' attorney must have a reasonable basis to know which correction officers will be added as defendants in order for plaintiff's amended complaint to relate back under the doctrine of constructive notice."*fn42
With regard to the third relation back requirement -- defendant's knowledge of mistake -- the focus is on what the prospective defendant knew or should have known, as opposed to what the plaintiff knew or should have known. As explained by the Supreme Court:
The question under Rule 15(c)(1)(C)(ii) is not whether Krupski knew or should have known the identity of Costa Crociere as the proper defendant, but whether Costa Crociere knew or should have known that it would have been named as a defendant but for an error. Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at the time of filing her original complaint.*fn43
The Supreme Court examined the interaction of the relation back doctrine and a defendant's interest in repose, stating as follows:
[T]he purpose of relation back [is] to balance the interests of the defendant protected by the statute of limitations with the preference expressed in the Federal Rules of Civil Procedure in general, and Rule 15 in particular, for resolving disputes on their merits. A prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his identity. Because a plaintiff's knowledge of the existence of a party does not foreclose the possibility that she has made a mistake of identity about which that party should have been aware, such knowledge does not support that party's interest in repose.*fn44
The Second Circuit addressed the issue of "John Doe" defendants,
pre-Krupski, in Barrow v. Wethersfield Police Department.*fn45
In Barrow, the court focused on the third relation back
requirement, stating as follows:
Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. Rule 15(c) explicitly allows the relation back of an amendment due to a 'mistake' concerning the identity of the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake. Barrow's failure in his first three complaints to specify the defendants' names, and his listing of ten "John Does" in the complaint of July 1, 1991, were because he did not know the arresting officers' names. His amended complaint identifying six police officers by name -- filed, by any calculation, after the statute of limitations had run -- did not correct a mistake in the original complaint, but instead supplied information Barrow lacked at the outset. Since the new names were added not to correct a mistake but to correct a lack of knowledge, the requirements of Rule 15(c) for relation back are not met.*fn46
Plaintiff, now represented by counsel, is proposing that Officer Holmes be substituted, in effect, for Officer Rennalls, who was dismissed from this suit in late 2011,*fn48 after plaintiff learned that it was not possible that Officer Rennalls twisted his foot during the portion of the incident captured on the video.*fn49
This is not the situation where plaintiff is seeking to replace a "John Doe" defendant with a particular individual. Nor did plaintiff mistakenly sue a defendant with a similar sounding name or who was somehow related to the proper defendant. Here, plaintiff is seeking to replace one formerly identified individual defendant with a newly proposed individual defendant, more than five years after the incident in question occurred. Yet according to Smith, "[t]he amendment does not change plaintiff's claims regarding the underlying incident. It simply changes the party that twisted his ankle [to] correct a classic case of mistaken identity."*fn50
But this is not a case of mistaken identity. Rather, it is a case where plaintiff wants to substitute a defendant to better conform to the evidence as he now understands it.
In arguing for an exception to the relation back requirements, plaintiff relies primarily on Archibald v. City of Hartford, a "John Doe" case.*fn51 In that case, the district court began by noting that the Second Circuit had addressed the issue of untimely identification of "John Doe" defendants in Barrow.*fn52 In Barrow, the court held that the failure to identify John Doe defendants cannot be characterized as a "mistake" for purposes of Rule 15(c). The issue in Archibald was "whether there is an exception to that Second Circuit principle [as stated in Barrow] when the originally named defendants unreasonably delay in producing relevant information that the plaintiff could use to identify the 'Doe' parties."*fn53 The court answered this question in the affirmative.*fn54
In Archibald, the plaintiff filed his complaint on October 1, 2009,
for events relating to his arrest on October 2, 2007.*fn55
The plaintiff brought suit, pursuant to section 1983, against
the City of Hartford, several individual defendants, John Does 1 - 3,
and Jane Doe 1.*fn56 According to the plaintiff, John
Doe 1 handcuffed him to a hospital bed and told the hospital staff
that he was faking his injuries while Jane Doe 1 prevented plaintiff
from having immediate surgery to repair his broken leg.*fn57
In their Rule 26 disclosures, the original defendants named six individuals but did not name Officers Ken Labbe or Karen Spearman, the disputed defendants.*fn58 Plaintiff served two sets of interrogatories, both of which asked for the identities of all officers who came in contact with the plaintiff between October 2 and October 7, 2007.*fn59 The defendants did not respond to either set of interrogatories.*fn60 On September 14, 2010, the City of Hartford produced a Rule 30(b)(6) deposition witness who identified Officers Labbe and Spearman as officers who may be involved.*fn61 Plaintiff noticed the depositions of Officers Labbe and Spearman two days later but defendants did not produce these witnesses for deposition until October 26, 2010, approximately three weeks after the limitations period expired.*fn62 Plaintiff filed his amended complaint on December 7, 2010, naming Officers Labbe and Spearman in place of John Doe 1 and Jane Doe 1, arguing for leave to amend "because he undertook diligent efforts to discover the identities of John Doe 1 and Jane Doe 1 in a timely manner."*fn63
In finding an exception to the relation back requirements as
interpreted in Barrow, thecourt relied on Byrd v. Abate*fn64
as an "exception to the
Second Circuit's seemingly categorical rule for cases in which a
plaintiff attempted to discover the identity of the unknown defendant
prior to the expiration of the statute of limitations but did not
receive an adequate response to his discovery requests."*fn65
Plaintiff's efforts to obtain the identities of the officers
who interacted with him -- through initial disclosures, document
requests, interrogatories, and Rule 30(b)(6) depositions -- were
"either completely rebuffed or substantially delayed by defense
counsel." As a consequence, the court held that Officers Labbe and
Spearman knew, or should have known, that they would be named as
defendants "but for Mr. Archibald's inability to obtain that
information from defense counsel itself."*fn66
Deciding not to punish plaintiff "for [d]efendants' obstruction of
[plaintiff's] counsel's diligent efforts to determine the identities
of the 'Doe' officers,"*fn67 the court
The Court agrees with the Byrd court that under these circumstances, a plaintiff should not be barred from naming a new defendant on the basis that the statute of limitations has already run, since to hold otherwise would allow defense counsel "to eliminate claims against any John Doe defendant merely by resisting discovery requests until the statute of limitations has ended."
Finally, while the Court certainly reserves its right not to apply the exception recognized in Byrd to other factual circumstances, it seems to the Court indisputable that when a plaintiff asks repeatedly during discovery for the names of the officers who engaged him, the City's police department has an obligation to conduct research and to disclose the identities of those officers.*fn68
Archibald is inapposite to the instant case, both factually and doctrinally, for a number of reasons. First, Archibald is a "John Doe" case and is therefore distinguishable. Contrary to plaintiff's assertion that this "distinction is one without a difference," the inclusion of "John Doe" defendants clearly signals the plaintiff's lack of knowledge as to the identity of certain defendants, thereby alerting defense counsel, at the beginning of a case, to the existence of defendants that have yet to be identified.*fn69 That is not the case here as Officer Rennalls was identified from the very beginning. Now that Officer Rennalls is viewed as an unlikely culprit, plaintiff wants to name an entirely new defendant. Thus, this is not a case of mistaken identity but rather the intentional substitution of a defendant to better fit plaintiff's evolving theory of his case. But Archibald is distinguishable on other grounds as well.
In Archibald, the John and Jane Doe defendants were identified as having taken certain actions with respect to the plaintiff. For example, John Doe 1 allegedly handcuffed the plaintiff to a hospital bed. Thus, the actions attributable to John Doe 1 enabled his identification by defense counsel. Moreover, defense counsel was reasonably alerted that a particular officer would be named as a defendant once John Doe 1 was identified. Here, in contrast, Smith identified Officer Rennalls as the person who twisted his foot from the very beginning.*fn70
Smith steadfastly maintained his identification of Officer Rennalls as
his assailant throughout most of these proceedings. And it bears
noting that Smith was well acquainted with Rennalls before the
incident even occurred.*fn71 It was not
Smith's recently retained counsel re-deposed Sergeant DelGrosso, on
September 30, 2011, that Smith decided to substitute Officer Holmes
when it became apparent that Officer Rennalls was nowhere near Smith's
feet as seen throughout the DVD recording of the incident.*fn72
Because Smith clearly and emphatically identified Officer
Rennalls, defendants' attorney, Shannon Brady, had no reason to expect
that Smith would name a different defendant nearly five years later.
Smith's substitution of Officer Holmes for Officer Rennalls was not
reasonably expected of defense counsel and was not in accord with
defense counsel's understanding of the case.
It has always been Defendant's position that ERT had minimal contact with Plaintiff and that Plaintiff was subdued before ERT arrived. . .
Plaintiff has never claimed, in either his original Complaint or in his sworn deposition, that his foot was twisted while leg restraints were being placed on him. Indeed, Plaintiff specifically testified that leg restraints were not place on him while he was still on the ground; he testified that they were placed on him after he had been contaminated and brought to another holding cell.*fn73
See id. at 81-82.
Furthermore, the DVD of the incident, which I watched repeatedly, does not show any officer twisting plaintiff's foot, making the substitution of Officer Holmes even more unexpected and incapable of anticipation.*fn74
Because defendants' attorney had no reason to expect that she would need to defend Officer Holmes as the officer who twisted plaintiff's foot, the constructive notice doctrine does not apply here.*fn75 Thus, Officer Holmes received no notice, actual or constructive, that he would be hailed into this Court as a defendant in a section 1983 excessive force case. To hold otherwise would subject Officer Holmes to irreparable prejudice notwithstanding plaintiff's argument that if the assault is unsubstantiated by the DVD, "it is irrelevant who is named as a defendant because plaintiff will not be able to meet his burden of proof."*fn76
Regardless of the quantum of evidence, Officer Holmes would be prejudiced by, inter alia, having to defend himself in a lawsuit that has heretofore proceeded on the assumption that Officer Rennalls was the assailant. Discovery would have to be re-opened for a third time; witness's recollections will have faded even more; and the ultimate resolution of this action would be delayed needlessly.
Nor can plaintiff satisfy the third relation back requirement. Officer Holmes was completely unaware of the possibility of being named a defendant but for Smith's mistaken identification of Officer Rennalls.*fn77 At a meeting on October 11, 2011, Officer Holmes informed defense counsel that he did not twist plaintiff's foot.*fn78 Officer Holmes is willing to provide an affidavit stating so, at the Court's request. Given Officer Holmes' denial of the factual underpinning of plaintiff's suit, Officer Holmes had no reason to suspect that he would be named as a defendant but for Smith's purported "mistake" in first naming Officer Rennalls.
Officer Rennalls and Officer Holmes do not share an identity of
interest; they have nothing in common other than being members of the
WCDOC's ERT who responded to the incident in dispute.*fn79
Thus, there was no reason for Officer Holmes to suspect that
he would be substituted in place of Officer Rennalls once Smith
realized that Officer Rennalls could not have twisted his foot during
the portion of the incident captured on the DVD.
Archibald can be further distinguished on the basis of the defendants' conduct therein. In Archibald, the defendants intentionally withheld the identities of the John/Jane Doe defendants and frustrated plaintiff's attempt to learn of such at every turn. Here, in contrast, defendants' attorney identified the existence of the DVD as early as July 7, 2008, in the Rule 26(a) Disclosures. While defendants' Rule 26(a) Disclosures did not identify Officer Holmes as a member of the ERT, that omission was not unreasonable under the circumstances. Plaintiff unequivocally named Officer Rennalls as the officer who twisted his foot, both in his original Complaint and at his deposition. At his deposition, plaintiff stated that his foot was twisted while he was being punched and kicked. Yet the DVD of the incident does not show any officer punching or kicking Smith. Moreover, Officer Holmes was identified as a member of the ERT in early May 2011, yet plaintiff's counsel took no action for five months -- until Sergeant DelGrosso testified that Officer Holmes was nearest to plaintiff's feet -- to add him as a defendant. Defense counsel's conduct in originally omitting Officer Holmes' name from the Rule 26(a) Disclosures, but then identifying him in May 2011, is not the kind of intentional, bad faith conduct that would warrant the type of exception found in Archibald. I reach this conclusion because defense counsel had no way to know that Officer Holmes was an "individual likely to have discoverable information."*fn80
Furthermore, the fact that plaintiff was not able to view the DVD until June 15, 2009*fn81 was not the fault of defendants or their counsel. Rather, it was plaintiff's status as an inmate, incarcerated by the NCDOC, that impeded his access to the DVD. To punish defendants for something that is beyond their control, a consequence of plaintiff's incarceration, would be fundamentally unfair and in direct contravention of the rationale supporting the exceptions found in Byrd and Archibald.
In sum, Smith cannot satisfy the second and third relation back requirements. Furthermore, the circumstances do not warrant the type of exception found in Archibald and Byrd. Because plaintiff's proposed Second Amended Complaint does not relate back to his original Complaint, leave to amend must be denied on the ground of futility.
For the reasons stated above, Smith's motion for leave to file a Second Amended Complaint is denied. The Clerk of the Court is directed to close this motion (Docket Entry #94). A status conference is scheduled for February 21, 2012, at 4:30 p.m., in Courtroom 15C. At this conference, the parties should be prepared to discuss the possible reinstatement of Officer Rennalls as a defendant. Plaintiff's recent discovery demands, as described in Deem's February 9, 2012 letter to the Court, will also be addressed at this conference.