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Gaetano D'attore v. New York City

July 19, 2012


The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge


Gaetano D'Attore brings this action pro se*fn1 against the City of New York (the "City"), the New York City Department of Correction, Correction Officer ("C.O.") Smalls, C.O. Wright, and C.O. Scudder.*fn2 The plaintiff, who is currently incarcerated by the City at Rikers Island Correctional Center, seeks damages and injunctive relief under 42 U.S.C. § 1983 for alleged violations of his constitutional rights while in custody.

The plaintiff now moves pursuant to Rules 15(a) and 20(a) of the Federal Rules of Civil Procedure for leave to file an Amended Complaint. He seeks to add New York State, the New York State Department of Corrections, and City Correction Officer Jones, Shield No. 14827, as defendants. He also wishes to include additional allegations concerning the defendants' violations of his constitutional rights on ten occasions not included in the original complaint. For the reasons set forth below, the plaintiff's motion is denied in part and granted in part.


The plaintiff filed his complaint on September 7, 2010. Mr. D'Attore alleged that, while incarcerated on February 23, 2010, he was not produced for a scheduled court appearance. (Complaint ("Compl.") at 5). He also claimed that C.O. Smalls refused to bring him to Court on February 24, 2010. (Compl. at 5). Finally, Mr. D'Attore claimed that, on May 5, 2010, while he was confined to a wheelchair and unable to ambulate on his own, C.O. Wright recklessly wheeled him into another detainee; C.O. Smalls allegedly laughed and said, "Good for that Cracker." (Letter of Gaetano D'Attore ("D'Attore Letter"), attached to Compl., at 2). All of these claims are included in the plaintiff's proposed amended complaint.

The Court ordered discovery to be completed by May 31, 2012. (Order dated Jan. 20, 2012). On March 5, 2012, the plaintiff moved to amend his complaint to add C.O. M. Scudder as a defendant, and on March 14, 2012, the City defendants consented to the plaintiff's motion provided that he only sought to replace the "John Doe" defendant in the complaint with C.O. Scudder. (Letter of Joseph A. Marutollo dated March 14, 2012, at 1-2). I therefore granted the plaintiff's motion to amend "to the extent that Correction Officer Scudder, Shield No. 15308 is substituted as defendant in place of 'John Doe - Description Male Hispanic/Black, light skin, approx. 40 years old, approx. 6'2" tall, approx. 260 lbs., salt and pepper hair (braided), handle bar mustache.'" (Order dated April 6, 2012). I further held that "[a]ny further request to amend must be accompanied by a proposed amended complaint." (Order dated April 6, 2012).

The plaintiff filed an amended complaint on May 7, 2012, but it was not accompanied by a motion seeking leave to amend. On May 16, 2012, I rejected the plaintiff's proposed amended complaint because it did not "conform to [the Court's] order dated April 6, 2012, permitting a limited amendment, and it is not accompanied by any motion to amend." (Order dated May 16, 2012). Furthermore, I held that "[the] plaintiff's delay in seeking to add a wide array of additional claims is prejudicial to [the] defendants." (Order dated May 16, 2012).

On June 1, 2012, the plaintiff filed a motion to amend the complaint. In support of his motion, he included an affirmation with several attachments. In the proposed amended complaint, the plaintiff realleges his previous claims and then asserts that his constitutional rights were violated on ten additional dates. (Amended Complaint ("Am. Compl."), attached as Exh. 2 to Affirmation of Gaetano D'Attore dated May 28, 2012 ("D'Attore Aff."), at 4). The plaintiff alleges that he "was denied due process of law, . . . denied the right to [speedy] trial" under New York Criminal Procedure Law § 30.30, and "deprived of [his] liberty" by not being produced in court while incarcerated on November 3, 2009. (Am. Compl. at 4). He also alleges deprivation of his liberty, as well as his due process and speedy trial rights, with respect to failure to escort him to court on November 24, 2009 (Am. Compl. at 4); November 30, 2009 (Am. Compl. at 4); December 2, 2009 (Am. Compl. at 4); February 10, 2010 (Am. Compl. at 5); February 22, 2010 (Am. Compl. at 5); and February 25, 2011. (Am. Compl. at 5-6). Mr. D'Attore further asserts that he was denied due process and a speedy trial when the trial judge lied to him on January 14, 2010. (Am. Compl. at 6).*fn3 He claims as well that he was denied due process and a speedy trial on July 1, 2010 and February 28, 2011 when the trial judge did not give him sufficient time to speak in his own defense. (Am. Compl. at 7-8).

The plaintiff further alleges that on February 25, 2011, he was subjected to cruel and unusual punishment through prison officials' deliberate indifference to his medical needs. (Am. Compl. at 6-7). Specifically, Mr. D'Attore claims that he was kept in a holding pen and not brought into the courtroom for such a long time that his physical disabilities caused him pain and emotional distress. (Am. Compl. at 7). The plaintiff proffers letters from Neil Hangan (Letter of Neil Hangan dated March 11, 2011, attached as Exh. B to D'Attore Aff.) and Bernard Santamorena (Letter of Bernard Santamorena dated March 11, 2011, attached as Exh. 12 to D'Attore Aff.) as evidence in support of his claims about this incident.

The plaintiff's proposed amended complaint also adds several new claims arising out of the incidents included in his original complaint. Mr. D'Attore alleges for the first time that he experienced physical pain as a result of prison officials' deliberate indifference to his medical needs on February 23, 2010 and February 24, 2010. (Am. Compl. at 5-6). He also claims for the first time that he was "discriminated against for [his] disabilities" on May 5, 2010. (Am. Compl. at 6).

Finally, the plaintiff's amended complaint seeks to add three new defendants to this case. Mr. D'Attore now lists the State of New York and the New York State Department of Corrections as defendants but does not indicate for which alleged constitutional violations he believes them responsible. He also names C.O. James J. Jones, Shield No. 14827, as a defendant for taking "a menacing, threatening stance towards and/or against" the plaintiff. (Am. Compl. at 3, 9).


A. Standard for Amendment A motion to amend is generally governed by Rule 15(a) of the Federal Rules of Civil Procedure, which states that "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Notwithstanding the liberality of the general rule, "[t]he decision to grant or deny leave to amend rests within the discretion of the trial court." Northern Assurance Co. of America v. Square D Co., 201 F.3d 84, 87 (2d Cir. 2000). Regarding the use of this discretion, the Supreme Court has stated:

In the absence of any apparent or declared reason --- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, ...

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