United States District Court, N.D. New York
JESSIE J. BARNES, Plaintiff,
BRIAN FISCHER, et al., Defendants.
JESSIE J. BARNES Plaintiff, Pro Se, Malone, New York.
ERIC T. SCHNEIDERMAN, Attorney General of the State of New York, MELISSA A. LATINO, ESQ., Assistant Attorney General, Albany, New York, Attorney for Defendants.
REPORT-RECOMMENDATION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Pro se Plaintiff Jessie Barnes brings this civil rights action, pursuant to 42 U.S.C. § 1983, alleging various violations of his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution. Dkt. No. 1, Compl. Barnes initially sued sixty-seven individual Defendants on various theories of liability, including, but not limited to, allegations that excessive force was used against him at Upstate Correctional Facility on nine different occasions, various Defendants failed to protect him and/or intervene on his behalf, while others exhibited deliberate medical indifference, violated his due process rights, retaliated against him, and failed to train and/or supervise. See generally id.  Three of the Defendants, Brian Fischer, former-Commissioner of the Department of Corrections and Community Supervision ("DOCCS"), Joseph Bellinier, Deputy Commissioner of DOCCS, and Albert Prack, Director of Special Housing Unit Programs, have moved to dismiss the Complaint, pursuant to Federal Rule of Civil Procedure 12(b)(6). Dkt. No. 94. Plaintiff opposes the Motion. Dkt. Nos. 124, 129, & 130. An Answer to the Complaint was filed on behalf of the remaining Defendants, Dkt. No. 95, and, upon that filing, this Court issued a Mandatory Pretrial Discovery and Scheduling Order, Dkt. No. 97. Also pending before the Court is Plaintiff's Motion to Amend the Complaint, Dkt. No. 144, which Defendants oppose, Dkt. No. 150. For the reasons that follow, it is ordered that Plaintiff's Motion to Amend is granted in part and denied in part and it is recommended that Defendants' Partial Motion to Dismiss be granted in part and denied in part.
I. PLAINTIFF'S MOTION TO AMEND
The filing of amended and supplemental pleadings is governed by Rule 15 of the Federal Rules of Civil Procedure. FED. R. CIV. P. 15. Rule 15(a) states that leave to amend shall be freely given "when justice so requires." See Foman v. Davis, 371 U.S. 178, 182 (1962); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). 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, futility of amendment, etc. - the leave sought should... be "freely given."
Foman v. Davis, 371 U.S. at 182.
An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002); Health-Chem Corp. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990) (noting that where "there is no merit in the proposed amendments, leave to amend should be denied."). The decision to grant or deny a motion to amend or supplement is committed to the sound discretion of the trial court, and the court's decision is not subject to review on appeal except for abuse of discretion. See Fielding v. Tollaksen, 510 F.3d 175, 179 (2d Cir. 2007).
By his Motion, Plaintiff states that he seeks to amend his original Complaint in eight respects. Dkt. No. 144, Notice of Mot., at pp. 1-2. Plaintiff describes the proposed amendments in the following terms:
1. Removal of excessive rubbish claims from original complaint;
2. Shorten amended complaint to 147 paragraph from 159 paragraphs of original complaint;
3. Remove John Doe Defendants and add parties Johnson, Michael Albert, Norcross, Leon Tuper, and Jeffrey Clark ¶-43 of May 19, 2011 incident;
4. Add A. Lashway to Aug. 23, 2011 incident at ¶-54;
5. Add deliberate indifference claim [against] Defendant Rock ...