United States District Court, S.D. New York
GABRIEL W. GORENSTEIN, United States Magistrate Judge
January 12, 2017, plaintiff Christopher Neal sent the Court a
letter attaching an amended complaint and apparently seeking
to have it filed. See Letter from Christopher Neal,
dated Jan. 12, 2017 (Docket # 97) (“Neal
Letter”). The only substantive change in the complaint
is the addition of two new defendants - both undercover
police officers. See “Amended Comp[l]aint,
” dated Jan. 12, 2017 (attached to Neal Letter)
(“Prop. 3d Am. Compl.”), ¶ 1. We construe
this letter as a motion to amend. Defendants filed a letter
in response, see Letter from Ben Kuruvilla, dated
Jan. 26, 2017 (Docket # 98) (“Kuruvilla Letter”),
and Neal filed a reply, see Letter from Christopher
Neal, dated Feb. 1, 2017 (Docket # 99) (“Neal
Reply”). For the reasons stated below, the motion to
amend is denied.
PROPOSED AMENDED COMPLAINT
alleged in his original complaint that he was in his
apartment on the night of November 23, 2012, “tending
to [a] wound, ” when up to 10 police officers
“unlawfully entered [his] apartment without . . .
permission.” See Complaint, dated Mar. 30,
2015 (Docket # 2), ¶¶ 1.B, 2.A.1 (emphasis
omitted). For unexplained reasons, one of the officers asked
Neal to come with them and Neal refused. Id. ¶
2.A.2. According to his complaint, the officers then
proceeded to attack Neal with punches, a Taser, and a baton.
Id. ¶¶ 2.A.2-.5. The officers handcuffed
Neal and took him from his apartment to a hospital.
Id. ¶ 2.A.6. Neal was arrested and arraigned
later that night. Id. The original complaint
identified four defendants by name, and another six were
identified as “John Doe.” Id. ¶
weeks after bringing suit, Neal filed his first amended
complaint. See Amended Complaint, dated May 12, 2015
(Docket # 5). Neal's first amended complaint not only
included allegations relating to the November 23, 2012,
incident, but also described an incident on August 20, 2012.
See id. ¶ 2.B. Neal alleged that on August 20,
2012, he was arrested without probable cause while walking in
public with his daughter and nephew. See id. In his
description of the August 20, 2012, incident, Neal alleged
that “an unknown detective” arrested him.
Id. The caption of the complaint lists as defendants
two detectives: Detective Marrero and Detective Scollo.
Id. ¶ 1.B. The complaint does not mention any
other police personnel involved in the August 20, 2012,
filed a second amended complaint in December 2015.
See Amended Complaint, dated Dec. 5, 2015 (Docket #
30) (“2d Am. Compl.”). In his second amended
complaint, Neal describes the August 20, 2012, incident and
alleges that Detective Marrero arrested him. See Id.
¶ 2.B. Neal also alleges that Detective Scollo was
involved in the August 20, 2012, incident. See id.
¶ 2.B.1. The second amended complaint makes no mention
of any other police personnel involved in the August 20,
proposed third amended complaint - the subject of the current
motion and first presented in his letter of January 12, 2017
- adds to the caption two undercover police officers as
defendants, who are identified by undercover number:
“UC number 280” and “UC number 10” of
the Narcotics Borough Bronx. See Prop. 3d. Am.
Compl. ¶¶ 1.B.11-.12. This complaint describes the
August 20, 2012, incident. It again names Detectives Marrero
and Scollo as defendants and gives allegations regarding
these detectives' conduct relating to the arrest. The
proposed complaint for the first time adds the following
factual allegation: “UC number 280 and/or UC nu[m]ber
10 made a statement that [Neal] had placed glassines
containing heroin inside [a] candy machine slot.”
See id. ¶ 2.B.6 (emphasis and capitalization
omitted). In a claim entitled “Breach of Duty to
Protect, ” the proposed amended complaint also alleges
that the two undercover officers, along with Detectives
Marrero and Scollo, made false statements. See Id.
¶¶ 2.C.3, 2.C.5.
oppose Neal's request to amend the complaint because they
contend that the claims against the new defendants are barred
by the applicable statute of limitations and thus the
amendment would be futile. See Kuruvilla Letter at
Law Governing Motions to Amend
Civ. P. 15(a)(2) instructs courts to “freely give leave
[to amend a complaint] when justice so requires.”
Accord Foman v. Davis, 371 U.S. 178, 182 (1962).
Nonetheless, leave to amend may be denied where there is
“undue delay, bad faith, . . . undue prejudice to the
opposing party . . ., [or] futility of amendment.”
See Foman, 371 U.S. at 182; accord Knife Rights,
Inc. v. Vance, 802 F.3d 377, 389 (2d Cir. 2015)
(citations omitted). “An amendment to a pleading is
futile if the proposed claim could not withstand a motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Lucente
v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d
Cir. 2002) (citing Dougherty v. Town of N. Hempstead Bd.
of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002)).
Thus, an amendment is futile if the claim proposed to be
added would be barred by the applicable statute of
limitations. See, e.g., Trakansook v.
Astoria Fed. Sav. & Loan Ass'n, 2008 WL 4962990,
at *2 (2d Cir. Nov. 21, 2008) (summary order); Grace v.
Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000) (citation
omitted); Forbes v. City of New York, 2016 WL
6269602, at *6-7 (S.D.N.Y. Oct. 26, 2016) (collecting cases);
Addison v. Reitman Blacktop, Inc., 283 F.R.D. 74, 81
(E.D.N.Y. 2011) (citation omitted).
Statute of Limitations and Relation Back
Section 1983 itself does not provide a statute of
limitations. See 42 U.S.C. § 1983; Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013). “Thus,
courts apply the statute of limitations for personal injury
actions under state law.” Hogan, 738 F.3d at
517 (citing Owens v. Okure, 488 U.S. 235, 249-51
(1989); and Pearl v. City of Long Beach, 296 F.3d
76, 79 (2d Cir. 2002)). For section 1983 actions filed in New
York, the applicable statute of limitations is section 214 of
New York's Civil Practice Law and Rules
(“CPLR”), which allows three years to file suit.
See id. (citing Pearl, 296 F.3d at 79; and
N.Y. C.P.L.R. § 214); accord Lefebvre v.
Morgan, 2017 WL 564090, at *9 (S.D.N.Y. Feb. 10, 2017).
construe the proposed complaint as alleging claims of false
arrest and malicious prosecution against the two undercover
officers. See Prop. 3d Am. Compl. ¶¶
2.C.3, 2.C.5.The statute of limitations for false arrest
claims begins to run at the time of detention under legal
process, such as at an arraignment. See Wallace v.
Kato, 549 U.S. 384, 389-91, 397 (2007); accord
Culpepper v. City of New York, 2016 WL 5334978, at *4
(S.D.N.Y. Sept. 21, 2016). For malicious prosecution claims,
the statute of limitations time begins when “the
underlying criminal action is conclusively terminated.”
Murphy v. Lynn, 53 F.3d 547, 548 (2d Cir. 1995)
(citing Singleton v. City of ...