United States District Court, W.D. New York
Aurel Smith, Plaintiff, Pro se, Attica, NY.
REPORT, RECOMMENDATION AND ORDER
JEREMIAH J. MCCARTHY, United States Magistrate Judge.
This case was referred to me by Hon. Richard J. Arcara for supervision of pretrial proceedings . Before me are plaintiff's motions  for leave to file an Amended Complaint and for appointment of counsel . For the following reasons, the motion for appointment of counsel is denied, without prejudice, and I recommend that the motion for leave to amend be denied to the extent it seeks to assert proposed Counts Four and Five, but order that the motion otherwise be granted.
Plaintiff, a pro se inmate, commenced this action on May 1, 2013 pursuant to 42 U.S.C. § 1983 for conduct arising while he was incarcerated at Attica Correctional Facility. In granting plaintiff in forma pauperis status, the Complaint was screened pursuant to the Prison Litigation Reform Act (" PLRA"), 28 U.S.C. § 1915A, and plaintiff was permitted to proceed with two claims. The first claim alleges that defendants Mark Bradt, the Superintendent of Attica, and William Hughes, the Deputy Superintendent for Security at Attica, placed him in a double bunk cell with a chronic smoker exposing him to environmental tobacco smoke (" ETS") notwithstanding the fact that he suffers from asthma, and ignored his requests to be moved to another cell, in violation of his Eighth Amendment rights. Complaint , Counts One and Two. His second claim alleges that he was assaulted on January 5, 2013 by three John Doe defendant correction officers in retaliation for his grievances concerning the conditions of his confinement, in violation of his First and Eighth Amendment rights ( id.,
Counts Three and Four).
The screening resulted in the dismissal, with prejudice, of plaintiff's assault and retaliation claims against defendants Bradt and Hughes arising from the alleged January 5, 2013 assault based upon their lack of personal involvement. Decision and Order dated December 2, 2013 , pp. 4-6. The court also asked the New York State Attorney's General's Office to attempt to ascertain the identities of the John Doe defendants, and directed that once this information was provided that service would be completed on these defendants (id., p. 6). However, the New York State Attorney General's Office informed the court that Attica was not in possession of any documentation concerning any investigation or incident involving plaintiff on or around January 5, 2013 . Since the New York State Attorney General's Office was unable to provide any information concerning the identity of the John Doe defendants, plaintiff was advised that he " must attempt to ascertain the identities of the John Doe defendants through discovery from the defendants", and was reminded that he must do so within the three year statute of limitations for those offenses. January 29, 2014 Decision and Order , p. 2, n. 2.
After defendants Bradt and Hughes filed their Answer  to the Complaint, a preliminary pretrial conference was held on March 27, 2014 at which a Case Management Order  was implemented, requiring motions to amend pleadings to be filed by June 30, 2014 (id., ¶ 2). Plaintiff timely filed his motion  for leave to file an Amended Complaint by that deadline. The proposed Amended Complaint [19-1] repeats his existing claims against defendants Bradt and Hughes arising from his exposure to ETS (id., Count 1), and his assault and retaliation claims against the three John Doe defendants arising from the January 5, 2013 incident (id., Counts 2 and 3). He also seeks to add the following three new claims:
- - a claim against defendants Bradt and Hughes for " their deliberate indifference displayed via the manner in which they . . . allow the widespread and pervasive conditions of guard brutality to exist and be maintained at Attica . . . deprived plaintiff of and thus contributed toward the violation of plaintiff's right against the right to be free from cruel and unusual punishment resulting from prison guards' unjustified and malicious and sadistic uses of force", in violation of the Eighth Amendment (id., Count 4). As a result of this conduct, plaintiff seeks monetary damages (id., ¶ ¶ 102, 118-121);
- - a claim against defendants Bradt and Hughes, as well as proposed newly added defendants John Doe #4, DOCCS Deputy Commissioner for Facility Operations, Dale Artus, the current Superintendent of Attica, Anthony Annucci, the Acting Commissioner of DOCCS for " deliberate indifference to the ongoing widespread and pervasive conditions of guard brutality and its mutually reinforcing factors that contribute to it being maintained even after years of complaints by prisoners and their families along with official reports and recommendations by watchdog agencies and other organizational/advocacy bodies which . . . created an environment where there is a high propensity for prisoners to continue to be abused thus violating their Eighth Amendment rights in general and that of plaintiff's in particular", in violation of the Eighth Amendment (id., Count Six). As a result of this conduct, plaintiff seeks injunctive and declaratory relief (id., ¶ ¶ 106, 116); and
- - a claim against Hughes for violating plaintiff's " religious free exercise rights by continually denying plaintiff attending weekly congregate religious services in an unjustified . . . and arbitrary and capricious way, basing such denials on plaintiff's being given punitive cell confinement which also failed to comport with DOCCS own requirements to make out a valid and justified denial to attend congregate religious services by a keeplocked prisoner", in violation of the First Amendment and 42 U.S.C. § 2000cc-1 (id., Count Five).
After plaintiff moved for leave to file an Amended Complaint, I set a briefing schedule that initially required plaintiff's reply, if any, by June 30, 2014 , and that deadline was later extended at plaintiff's request to July 14, 2014 . However, explaining that he was suffering from depression, plaintiff did not file his reply until October 7, 2014 . To minimize any prejudice to defendants from plaintiff's untimely reply, I permitted defendants to submit a sur-reply . I also granted defendants' motion  to hold the deadlines of the Case Management Order in abeyance pending resolution of plaintiff's motion .
A. Plaintiff's Motion for Leave to File an Amended Complaint
Fed. R. Civ. P. (" Rule") 15(a)(2) provides that leave to amend " should [be] freely give[n] . . . when justice so requires" . The following four factors are commonly used to determine the propriety of a motion for leave to amend: bad faith, undue delay, prejudice to the opposing party, ...