United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
J. NATHAN United States District Judge
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.
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),  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. Id.
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.
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
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. 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.
April 13, 2017, Plaintiff filed objections to Judge
Parker's Report & Recommendation. Dkt No. 90.
Standard of Review
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).
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.
The Adequacy of the Description of the "John Smith"
Officers is Irrelevant
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 ...