United States District Court, S.D. New York
OPINION AND ORDER
KATHERINE POLK FAILLA, DISTRICT JUDGE
John Andrew Flores alleges that he was assaulted by
corrections officers while incarcerated at Rikers Island. His
operative complaint, brought pursuant to 42 U.S.C. §
1983, names only individual defendants. Now - after the close
of fact discovery - Plaintiff moves for leave to amend his
complaint in order to include a claim of municipal liability
against the City of New York (the “City”). The
City opposes. Because Plaintiff has demonstrated good cause
to amend under Federal Rule of Civil Procedure 16, and the
Court finds no basis to deny leave to amend under Federal
Rule of Civil Procedure 15, Plaintiff's motion is
Allegations in the Complaint
October 1, 2014, Plaintiff brought a pro se §
1983 action, alleging that he was assaulted by corrections
officers while in the custody of the New York City Department
of Corrections (“DOC”) at the Robert N. Davoren
Complex's Adolescent Mental Observation Unit on Rikers
Island. (Compl. 1-4).
Complaint alleges the following facts. Plaintiff was
repeatedly punched and kicked in the face by Corrections
Officer (“C.O.”) Smith, while Captain Nieva stood
by, and then Plaintiff was “dragged” into a
corridor where there were no video cameras. (Compl. 3).
There, Captain Nieva and three unidentified corrections
officers continued to assault Plaintiff, while another
officer watched. (Id.). The assault left Plaintiff
with an injured jaw, swollen face, and two black eyes.
(Id.). Thereafter, he was denied medical attention
for two days. (Id.). Because Captain Nieva was
present when Plaintiff was treated, the Complaint alleges,
the doctor refused to record what had actually happened to
Plaintiff. (Id.). The Complaint identifies the date
and time of the assault only as: “October or November
at around 12:30 A.M.” (Id. at 2). The
Complaint names as defendants Captain Nieva, C.O. Smith, and
several John and Jane Does, but not the City or DOCS.
(Id. at 1).
October 24, 2014, this Court issued an Order of Service,
which requested that Defendants Smith and Nieva waive service
of summons, and that Plaintiff file an amended complaint
specifying the date of the alleged assault and providing
other details. (Dkt. #8). The Court also directed the Clerk
of Court “to notify the New York City Department of
Correction and the New York City Law Department” of
that Order. (Id.). On November 14, 2014, Corporation
Counsel appeared in this action as an “Interested
Party” and requested “that all notices and other
papers be served upon” it. (Dkt. #9).
February 6, 2015, Plaintiff filed an Amended Complaint (the
“FAC”) that was still missing certain identifying
details as well as the exact incident date, estimating only
that it was in October or November of 2011. (FAC 4). On March
20, 2015, Corporation Counsel informed the Court that it had
identified the date of the incident described in
Plaintiff's complaints and the corrections officers
present during the alleged assault - Captain Nieva and C.O.
Smith as well as C.O.'s Padua and Millner. (Dkt. #19). On
May 20, 2015, the Court directed the Clerk of Court to amend
the case caption to include the aforementioned officers and
remove all John and Jane Doe defendants. (Dkt. #30). All four
of the individual defendants have either been served or have
waived service. (Dkt. #35, 38, 41, 83).
August 6, 2015, C.O. Millner and C.O. Padua filed a
Third-Party Complaint against the City, which was amended the
following day. (Dkt. #44, 47). The Amended Third-Party
Complaint alleges that the conduct complained of by Plaintiff
occurred within the scope of the correction officers'
employment and seeks indemnification by the City for any
liability arising from Plaintiff's suit. (Dkt. #47).
December 3, 2015, the Court ordered the Clerk of Court to
“seek pro bono counsel to enter a limited appearance
for the purpose of conducting certain document discovery and
depositions (‘Limited Discovery Counsel').”
(Dkt. #64 at 1). This Order set forth the scope of
representation, which “consist[ed] of defending the
deposition of the plaintiff and taking the depositions of
[the individual defendants], as well as conducting document
and other discovery necessary to take or defend such
depositions.” (Id. at 2). The Order also
provided that counsel “may, but is not required to,
conduct additional discovery which, in [the] exercise of his
or her good faith judgment, Limited Discovery Counsel deems
January 6 and 7, 2016, two attorneys from the Kramer Levin
firm appeared in this case as Limited Discovery Counsel.
(Dkt. #68, 71). On January 7, 2016, the Court entered a Case
Management Plan and Scheduling Order, which set the deadline
for fact discovery on May 6, 2016, and for expert discovery
on June 20, 2016. (Dkt. #70 at 2). The Order did not set a
deadline for the filing of amended pleadings, but noted that
the Order “may not be modified or the dates …
extended, except by further Order of th[e] Court for good
cause shown.” (Id. at 3).
United States Attorney's Office Investigation of Rikers
to Limited Discovery Counsel, Plaintiff “was not in a
position to understand the legal requirements for municipal
liability under 42 U.S.C. § 1983 prior to” the
appointment of counsel. (Burns Decl. ¶ 8). After a June
2016 meeting with Plaintiff, Limited Discovery Counsel
“began to investigate whether [Plaintiff] had a
good-faith basis to assert a … claim against the
City” pursuant to Monell v. Department of Social
Services of City of New York, 436 U.S. 658 (1978).
(Id. at ¶ 4).
after” the June 2016 meeting, while researching the
City's potential Monell liability,
“counsel learned of a report produced by the United
States Attorney's Office for the Southern District of New
York (‘USAO') presenting the findings of an
investigation into the treatment of adolescent male inmates
between the ages of 16 and 18 at jails on Rikers Island
during the period of 2011 to 2013.” (Burns Decl. ¶
5). That report (the “USAO Report” or the
“Report”) is attached as Exhibit B to the Burns
Declaration. The Report was published on August 4, 2014, and
addressed to the Mayor's Office, DOC, and Corporation
Counsel. (Burns Decl., Ex. B, at 1).
USAO Report “centered exclusively on whether DOC
adequately protects adolescents from harm” - including
“whether adolescents are subject to excessive and
unnecessary use of force by DOC correction officers and their
supervisors” - and “primarily focused on
practices and conduct during the period 2011 through the end
of 2013.” (Burns Decl., Ex. B, at 1-2). The Report
that there is a pattern and practice of conduct at Rikers
that violates the constitutional rights of adolescent
inmates. In particular … adolescent inmates at Rikers
are not adequately protected from harm, including serious
physical harm from the rampant use of unnecessary and
excessive force by DOC staff.
(Id. at 3). The USAO Report also identified
“systematic deficiencies that contribute to,
exacerbate, and indeed are largely responsible for the
excessive and unnecessary use of force by DOC staff.”
(Id. at 4).
to Limited Discovery Counsel, Plaintiff “was unfamiliar
with the findings of the USAO Report, or any other evidence
of the DOC's unconstitutional customs and policies at
RNDC” prior to working with Limited Discovery Counsel.
(Burns Decl. ¶ 9). Upon learning of the USAO Report,
Limited Discovery Counsel “conducted research into
whether [Plaintiff] had a basis to assert a Monell
claim against the City.” (Id. at ¶ 6).