The opinion of the court was delivered by: Gary L. Sharpe Chief United States District Judge
Plaintiff pro se Johnathan Johnson commenced this action against Brian Fischer, Commissioner of the New York Department of Corrections and Community Supervision ("DOCCS"); Lucien LeClair, Deputy DOCCS Commissioner; Teresa Knapp-David, DOCCS Classification and Movement staff member; and Trudy Lynn-Caron, an Upstate Correctional Facility ("Upstate") counselor, alleging deliberate indifference to his safety and cruel and unusual punishment in violation of his Eighth Amendment rights. Dkt. No. 1 ("Compl.") Defendants moved to dismiss plaintiff's claims for lack of personal involvement or, in the alternative, for violation of the "three strike" provision of 28 U.S.C. § 1915(g). Dkt. No. 10.
By Report-Recommendation and Order ("R & R") filed November 28, 2011, Magistrate Judge David R. Homer recommended that (1) defendants' motion to dismiss for lack of personal involvement be granted as to Fischer, LeClaire and Knapp-David and denied as to Lynn-Caron and (2) defendants' motion to conditionally dismiss the action pursuant to the "three strikes" provision of 28 U.S.C. § 1915(g) be denied. Dkt. No. 15 at 9-10. By Decision and Order filed December 22, 2011, this Court adopted Magistrate Judge Homer's November R & R in its entirety and defendants Fischer, LeClaire, and Knapp-David were dismissed. Id. Thus, the remaining portion of plaintiff's complaint alleged that in 2008 and 2011, he informed defendant Lynn-Caron that he had enemies (gang members) at Upstate, but she refused to transfer him out of Upstate. Compl. at 6. Plaintiff alleged that on January 7, 2011, while he was incarcerated at Upstate, he was attacked "by a gang member [blood] enemy." Id. Plaintiff alleged that as of the date that he filed this action, he was "under Imminent danger of serious physical injury by these gang members enemies." Id. Construed liberally, plaintiff claimed that defendant Lynn-Caron was deliberately indifferent to his safety and subjected him to cruel and unusual punishment in violation of his rights under the Eighth Amendment to the United States Constitution. Id. at 7.
Plaintiff sought injunctive relief from the Court in the form of a transfer out of Upstate. Dkt. No. 23. Plaintiff claimed that he would be in danger of future attacks from gang members at Upstate if he remained at that facility. Id. By Decision and Order filed May 16, 2012, the Court denied plaintiff's motion for injunctive relief. Dkt. No. 43 (the "May Order").
The May Order found that plaintiff had failed to demonstrate a likelihood of success on the merits of his claims. Id. Presently before the Court are plaintiff's motions for leave to supplement his complaint (Dkt. No. 37) and for reconsideration (Dkt. No. 49) of the May Order. Defendant opposes plaintiff's motions. Dkt. Nos. 40, 54.*fn1
A. Motion to Supplement the Complaint
Rule 15(d) of the Federal Rules of Civil Procedure allows a party to supplement a pleading with matters that occurred after the date of the pleading to be supplemented. Fed. R. Civ. P. 15(d). A party may supplement to include subsequent occurrences "absent prejudice to the nonmoving party." Albrecht v. Long Island R.R, 134 F.R.D. 40, 41 (E.D.N.Y. 1991). "It is also proper to permit the filing of a supplemental pleading to add additional parties." Tobin v. Rell, No. 3:05CV1079, 2007 WL 1520111, at *2 (D.Conn. May 18, 2007) (citing Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 227 (1964)).
The standard for a motion to supplement is the same as for a motion to amend the pleadings under Fed. R. Civ. P. 15(a). Klos v. Haskell, 835 F. Supp. 710, 715 (W.D.N.Y. 1993) (Fisher, M.J.), adopted by 835 F. Supp. at 713 (W.D.N.Y. 1993) (Telesca, D.J.). Generally, the court has discretion whether or not to grant leave to amend a pleading. Foman v. Davis, 371 U.S. 178, 182 (1962). However, in exercising this discretion, the court must act pursuant to Fed. R. Civ. P. 15(a), granting leave to amend "freely ... when justice so requires." Fed. R. Civ. P. 15(a); Foman, 371 U.S. at 182.
In deciding whether to exercise its discretion, the court must examine whether there has been undue delay, bad faith, or dilatory motive on the part of the moving party. Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983) (citing Foman, 371 U.S. at 182).
A motion to amend "will also be denied if the amendment would cause undue prejudice to the opposing party, by requiring additional discovery or unnecessarily complicating the litigation." Kovian v. Fulton Cnty. Nat'l Bank, No. 5:86-CV-0154 (HGM), 1992 WL 106814, at *2 (N.D.N.Y. May 13, 1992). Finally, where it appears that granting leave to amend is unlikely to be productive or the amendment is futile, it is not an abuse of discretion to deny leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (citations omitted). "[T]he court will not grant leave to amend when the amended pleading cannot survive a motion to dismiss." Kovian, 1992 WL 106814, at *1 (citing Freeman v. Marine Midland Bank, 494 F.2d 1334, 1338 (2d Cir. 1973); Nardella v. Braff, 621 F. Supp. 1170, 1172-73 (S.D.N.Y. 1985)). Moreover, in the case of proposed amendments where new defendants are to be added, the Court must also look to Rule 21 of the Federal Rules of Civil Procedure which states that a party may be added to an action "at any time, on just terms." Addition of parties under Rule 21 is also guided by the same liberal standard as a motion to amend under Rule 15. Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972).
Plaintiff requests permission to file a "supplemental complaint" pursuant to Rule 15(d), claiming that the "events" he wishes to add to this action "have occurred since the original complaint" was filed. Dkt. No. 37-1 at 2. In his proposed supplemental pleading, plaintiff seeks to add three new defendants to this action and to assert allegations of wrongdoing against them. Plaintiff alleges that on January 7, 2011, defendant Bouchey witnessed plaintiff's alleged assault by an inmate "gang-member" at Upstate, and then issued plaintiff a false misbehavior report charging plaintiff with attacking the other inmate without provocation.
Dkt. No. 37-2 at 2. Plaintiff alleges that defendant Bullis presided over plaintiff's disciplinary hearing arising out of defendant Bouchey's misbehavior report, and that defendant Bullis "conspired with" defendant Bouchey, finding that plaintiff attacked the other inmate, even though the videotape evidence available to defendant Bullis showed that plaintiff was the one attacked. Id. at 3. Finally, plaintiff alleges that defendant Zerniak presided over the "other inmate['s]" disciplinary hearing, viewed the videotape of the "attack on plaintiff and took no corrective ...