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James D. Curry v. Michael L. Campbell

March 23, 2012

JAMES D. CURRY, PLAINTIFF,
v.
MICHAEL L. CAMPBELL, SHIELD NO. 5346, INDIVIDUALLY AND AS A POLICE OFFICER OF THE SUFFOLK COUNTY, NEW YORK POLICE DEPARTMENT, RICHARD LANE, ROBERT GARDENER, INDIVIDUALLY AND AS EMPLOYEES OF THE SUFFOLK COUNTY, NEW YORK DISTRICT ATTORNEY'S OFFICE, AND SUFFOLK COUNTY, DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge:

MEMORANDUM AND ORDER

Plaintiff James D. Curry commenced this action on June 6, 2006, alleging that he had been subjected to excessive force in connection with his arrest on August 22, 2003 in violation of his Fourth Amendment rights. The Complaint named defendants Michael L. Campbell, a police officer for the Suffolk County Police Department ("SCPD"), Richard Lane and Robert Gardener, employees of the Suffolk County District Attorney's Office, and the County of Suffolk (the "County"). Presently before the Court is plaintiff's motion to amend the Complaint pursuant to Federal Rule of Civil Procedure 15 to add Thomas M. Kenneally, a Sergeant with the SCPD, as a defendant. For the reasons set forth below, plaintiff's motion is denied.

BACKGROUND

The Complaint

Plaintiff's allegations set forth in the original Complaint are brief and straight-forward. On August 22, 2003 at approximately 3:50 p.m., in the area of Foxcroft Lane in Patchogue, New York, plaintiff "was subjected to excessive force by defendants Campbell, Lane and Gardener, who acted jointly; the abuse included repeated blows to the head; a weapon was used in the beating of plaintiff." (Compl. ¶ 8.) Plaintiff further alleges that none of the individual defendants made any "effort to prevent or stop the abuse . . . and failed to protest it." (Id. ¶ 9.) According to plaintiff, "[b]efore the individual defendants beat plaintiff, Michael L. Campbell said to him: 'Don't want to pull over asshole?'" (Id. ¶ 10.) Plaintiff alleges that, as a result of this incident, he sustained serious physical injuries, including a fractured skull, epidural hematoma, and traumatic subarachnoid hemorrhage, as well as emotional distress damages. (Id. ¶ 11.) Plaintiff asserts a Monell claim against the County. (Id. ¶¶ 12-14.) Procedural History Upon the completion of discovery, this case was deemed trial ready on October 17, 2007. A final pretrial conference was held on July 9, 2009 and a jury trial was scheduled for January 1, 2010. On that date, plaintiff represented that he was not ready to proceed and, with the consent of defendants, the trial date was adjourned to May 3, 2010. At plaintiff's request, the trial was again adjourned to August 23, 2010. Prior to the new trial date, however, plaintiff requested that his attorney be relieved as counsel and that discovery be re-opened. By Order dated August 13, 2010, this Court granted plaintiff's request that his attorney be relieved as counsel and adjourned the August 23, 2010 trial date sine die.

On October 13, 2010, plaintiff's current counsel appeared on plaintiff's behalf. On December 7, 2010, Magistrate Judge E. Thomas Boyle granted plaintiff's application to re-open discovery. Plaintiff deposed several defendants and non-party witnesses during the week of March 15, 2011. (See Decl. of Scott Roehm, dated May 19, 2011 ("Roehm Decl."), Ex. C (deposition of Thomas M. Kenneally, taken on March 15, 2011), Ex. D (deposition of Michael L. Campbell, taken on March 16, 2011), & Ex. G (deposition of Kenneth L. Fasano, taken on March 18, 2011).) Based on information learned at these depositions, plaintiff filed the present motion to amend the Complaint to add Kenneally as a defendant.

The Asserted Basis for Plaintiff's Motion to Amend

Throughout the litigation, the parties have not disputed that plaintiff was arrested on August 22, 2003 at the conclusion of a vehicle pursuit involving law enforcement personnel from the Suffolk County District Attorney's Office and the SCPD. (Pl.'s Mem. at 2; Defs.' Opp'n at 4.) There is also no dispute that plaintiff suffered from serious physical injuries -- including a fractured skull -- at the time of his arrest. (Pl.'s Mem. at 2; Defs.' Opp'n at 4.) However, the cause of plaintiff's injuries is in dispute. Plaintiff asserts that he was struck in the head by "at least one police officer" at approximately 3:50 p.m. (Pl.'s Mem. at 2), while defendants claim that plaintiff "received his injuries when he jumped out of his vehicle" (Defs.' Opp'n at 4).

Plaintiff claims that as a result of the depositions taken in March 2011, he "learned that Kenneally played a central role in the events giving rise to plaintiff's claims and should have been named as a defendant from the outset." (Pl.'s Mem. at 3.) In particular, plaintiff learned that Kenneally, then a uniformed "road/patrol sergeant" with the 5th Precinct of the SCPD, was Campbell's supervisor on the day of plaintiff's arrest. (Id.) Kenneally testified during his deposition that on August 22, 2003 he learned of the vehicle pursuit and responded to the location. (Id.) The parties do not dispute that as plaintiff drove onto Foxcroft Lane, Kenneally was the first police officer to follow. (Id.; Defs.' Opp'n at 4.)

According to plaintiff, he stopped his vehicle on Foxcroft Lane and exited, while instructing his wife (a passenger in the vehicle) to move into the driver's seat and drive away. (Pl.'s Mem. at 4.) Plaintiff "turned to run behind a house and was met immediately by a uniformed police officer, who said to plaintiff something along the lines of: 'Don't want to pull over, asshole?'" (Id.) Plaintiff now asserts that he does not know the identity of the uniformed police officer who made this statement (id.; see also Pl.'s Dep. at 90-92), although, as noted above, in the Complaint that statement is unequivocally attributed to Campbell (see Compl. ¶ 10.) Plaintiff asserts that after this comment was made, he was struck in the head and dragged into the road, but cannot remember any details about the attack or his attacker. (Pl.'s Mem. at 4.)

Defendants claim that plaintiff sustained his injuries by jumping out of his car after it turned onto Foxcroft Lane, although there is no record evidence that either Kenneally or any of the defendants actually observed him doing so.*fn1 (Defs.' Opp'n at 4.) The SCPD Internal Affairs Bureau conducted an investigation after plaintiff filed an administrative complaint following his arrest. In connection with that investigation, Kenneally denied using any "physical force" against plaintiff and denied witnessing the use of such force by anyone else on the scene. (Roehm Decl., Ex. H.)

During the March 2011 depositions, plaintiff also learned that Kenneally remained at, and was in command of, the scene of plaintiff's arrest until plaintiff was taken away by ambulance. (Pl.'s Mem. at 5 (citing Kenneally Dep. at 46).) Kenneally told Campbell that he (Campbell) was considered the arresting officer and instructed Campbell to fill out the arrest report. (Id. (citing Campbell Dep. at 30).) Plaintiff asserts that Kenneally's name does not appear in the paperwork created as a result of plaintiff's arrest.*fn2

DISCUSSION

I. Legal ...


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