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Wilson v. City of New York

United States District Court, S.D. New York

June 19, 2017

Dwayne Wilson, Plaintiff,
The City of New York, Defendant.


          ALISON J. NATHAN United States District Judge

         Before the Court is Plaintiff Dwayne Wilson's objections to Magistrate Judge Parker's April 4, 2017 Report and Recommendation recommending that the Court deny Plaintiffs motion to amend. For the following reasons, the Court denies the objections and adopts the findings and recommendation contained in the Report and Recommendation.

         I. Background

         The relevant facts are accurately outlined in Judge Parker's Report & Recommendation. Briefly, Plaintiff has brought two actions challenging two separate arrests by New York City Police Department ("NYPD") officers as unconstitutional. The first arrest occurred on July 13, 2013, and the second arrest occurred on October 9, 2013. Dkt No. 1 (15-cv-7368); Dkt No. 1 (15-CV-7369), [1] Plaintiffs two complaints against the City and the arresting officers were filed on September 17, 2015. Id. Both complaints identify the arresting officers only as "John Smith" officers.[2] Id.

         The statute of limitations recently ran on Plaintiffs claims. Specifically, the statute of limitations ran on July 13, 2016 for Plaintiffs July 13, 2013 arrest and on October 9, 2016 for Plaintiffs October 9, 2013 arrest. See R&R at 5-6 (DktNo. 87); Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (noting that Section 1983 actions in New York are subject to a three-year statute of limitations). On November 18, 2016, after the statute of limitations expired, Plaintiff indicated to the undersigned in an initial pretrial conference that he intended to move to amend his complaints to replace the "John Smith" defendants with the actual names of the officers involved. Dkt No. 74 at 7. Plaintiff initially filed his motion to amend on December 19, 2016, although it was later rejected due to a docketing error. Dkt Nos. 51, 56. The Court subsequently referred the motion to Magistrate Judge Parker. Dkt No. 76.

         On April 4, 2017, Magistrate Judge Parker issued a Report & Recommendation recommending that Plaintiffs motion to amend be denied. Dkt No. 87. Judge Parker started by explaining that Federal Rule of Civil Procedure 15(c)(1)(A) permits amendment to assert an otherwise untimely claim when "the law that provides the applicable statute of limitations allows relation back." R&R at 7. Here, Plaintiff contends that New York Civil Practice Law and Rules ("CPLR") § 1024 permits his amendment. Motion to Amend at 4-5 (Dkt No. 58). Judge Parker noted that, in order to avail himself of § 1024, Plaintiff needed to show that he (1) exercised due diligence to identify the "John Smith" defendants by name before the expiration of the statute of limitations, and (2) described the "John Smith" defendants in a way that fairly apprised the actual parties that they were the intended defendants. R&R at 7-8 (citing Hogan, 738 F.3d at 518-19).

         Judge Parker concluded that Plaintiff failed to satisfy the first prong, the requirement of due diligence. R&R at 12. In reaching this conclusion, Judge Parker noted that Second Circuit precedent has identified a number of different methods a plaintiff in a Section 1983 lawsuit brought against New York City police officers may attempt to identify his arresting officers. These methods include, inter alia, serving a Freedom of Information Law request, attempting pre-action discovery pursuant to CPLR § 3102(c) (which permits discovery to ascertain the identities of prospective defendants), wilting to the NYPD asking for the names of the arresting officers, examining the court filings in the underlying criminal cases, filing a demand for identification pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997), and memorializing in writing a verbal request to New York City's corporate counsel for the officers' names. R&R at 8-9 (citing Hogan, 738 F.3d at 512, 519). Judge Parker explained that "Plaintiff did not engage in any of the[se] identification tactics." R&R at 10. In fact, the only evidence of Plaintiff s effort to ascertain the names of the "John Smith" defendants is a representation from Plaintiffs counsel that counsel verbally requested the names of the officers during a February 12, 2016 call with the City, a representation that Defendant disputes. R&R at 3 n.2, 10. According to Judge Parker, "Plaintiff then waited passively until June 2016, when Plaintiff received the names of some, but not all 'John Smith' Defendants in Defendants' Initial Disclosures." R&R at 11. Despite receiving the names of some of the "John Smith" officers over a month before the first statute of limitations expired, Plaintiff still did not move to amend until five or six months later. R&R at 12.[3] Judge Parker concluded that "Plaintiffs actions pale in comparison to the type of conduct that courts routinely require even pro se parties to take to show their diligence." Id. at 11 (collecting cases). Having concluded that Plaintiff failed to satisfy the first requirement of § 1024, Judge Parker declined "to address whether Plaintiff could satisfy the second requirement for invoking CPLR § 1024, " i.e., whether the Plaintiff identified the intended defendants with sufficient particularity. Id. at 12. Judge Parker suggested in a footnote, however, that Plaintiff likely did satisfy this requirement. Id. at 12 n.8. Judge Parker then ended by briefly rejecting any argument that that CPLR §§ 306-b and 203 provided an avenue for Plaintiff to amend his complaint. R&R at 13-15.

         On April 13, 2017, Plaintiff filed objections to Judge Parker's Report & Recommendation. Dkt No. 90.

         II. Standard of Review

         After reviewing a magistrate judge's report and recommendation, "a district court 'may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge."' Gomez v. City of New York, No. 13-CV-1822 (VSB), 2016 WL 3093982, at *2 (S.D.N.Y. May 31, 2016) (quoting 28 U.S.C. § 636(b)(1)). "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Fed.R.Civ.P. 72(b)(2). The opposing party has the same amount of time to respond. Id. The district must engage in de novo review of any part of the report and recommendation "that has been properly objected to." Fed.R.Civ.P. 72(b)(3). Unobjected-to portions of a report and recommendation are reviewed only for clear error. Gomez, 2016 WL 3093982, at *2; Anderson v. City of Mount Vernon, No. 09 Civ. 7082(ER)(PED), 2014 WL 1877092, at *1 (S.D.N.Y. Mar. 28, 2014); Wolff v. Town of Mount Pleasant, No. 06-CV-3864 (CS)(LMS), 2009 WL 1468620, at *1 (S.D.N.Y. May 29, 2009); Fed.R.Civ.P. 72 advisory committee's note (b).

         III. Discussion

         Plaintiff raises a number of objections to Judge Parker's Report & Recommendation. As explained below, the Court denies Plaintiffs objections, largely because they are immaterial to Judge Parker's conclusions.

         A. The Adequacy of the Description of the "John Smith" Officers is Irrelevant

         Several of Plaintiff s objections surround his purportedly adequate description of the unnamed "John Doe" officers. For example, Plaintiff objects to Judge Parker's "characterization of the way in which plaintiff described some of the 'John Smith' Defendants in its Amended Complaint re: 15-cv-07369." Objection ¶ 2. In her Report & Recommendation, Judge Parker states that "in the March 15 Complaint filed in 15-cv-07369, Plaintiff also provided a very limited physical description of some of the 'John Smith' Defendants." R&R at 3. According to Plaintiff, his description of the "John Smith" defendants was not "very limited, " but rather "[c]learly . . . provides enough information for the individuals to know that they are the intended defendants in this action." Objection ¶ 2. Similarly, Plaintiff objects to the fact that "[Judge] Parker is silent with respect to plaintiffs descriptions of the 'John Smith' Defendants in its Amended Complaint of the [other] 15-cv-7368 action." Objections ¶ 3. Additionally, Plaintiff objects that Judge Parker "did not take into account the Plaintiffs Notices ...

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