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DaCosta v. City of New York

United States District Court, E.D. New York

November 8, 2017

MAXIE DACOSTA, Plaintiff,
v.
THE CITY OF NEW YORK, DETECTIVE DAVID SHAPIRO, Shield #6054, and POLICE OFFICERS JOHN AND JANE DOE #1 THROUGH 20, individually and in their official capacities Defendants.

          Kim Richman Clark A. Binkley Javier Osvaldo Hidalgo for Maxie DaCosta

          Kavin Suresh Thadani Daniel G. Saavedra for The City of New York Det. David Shapiro

          MEMORANDUM AND ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO AMEND HIS COMPLAINT

          Jack B. Weinstein, Senior United States District Judge

         Table of Contents

         I. Introduction ................................................................................................................ 3

         II. Facts ........................................................................................................................... 4

         III. Procedural History ..................................................................................................... 6

         IV. Law ............................................................................................................................ 7

         A. Standard of Review from Objections to Magistrate Judge's Report and Recommendations ............... 7

         B. Statute of Limitations .............................................................................................. 9

         C. Motion for Leave to Amend a Pleading ................................................................ 16

         D. Relation Back ........................................................................................................ 16

         1) Federal Rule 15(c)(1)(A) ................................................................................. 17

         a) New York CPLR 1024 ................................................................................... 17

         b) New York CPLR 203 ..................................................................................... 18

         2) Federal Rule 15(c)(1)(C) ................................................................................. 28

         E. Disclosure Obligations .......................................................................................... 35

         F. Particular Need for Discovery in Police Civil Rights Cases ................................. 37

         G. Ethical Obligations of Government Counsel ........................................................ 43

         V. Application of Law to Facts ..................................................................................... 50

         A. Ethical Obligations of Counsel ............................................................................. 50

         B. Leave to Amend Under Federal Rules 15 and 16 ................................................. 54

         C. Relation Back Under Federal Rule 15(c)(1)(A) .................................................... 54

         D. Relation Back Under Federal Rule 15(c)(1)(C) .................................................... 55

         VI. Conclusion ............................................................................................................... 57

         I. Introduction

         Two legal issues are central to this civil rights opinion: first, is it ethical for a government defense attorney to fail to correct plaintiff's counsel's misconception about the proper defendant; and second, should the relation back of an amendment adding a new defendant be allowed nunc pro tunc to avoid a statute of limitations defense pursuant to the standards of the Supreme Court and the New York Court of Appeals rather than the more rigid standards sometimes applied in cases decided in the Second Circuit. The answer to the first question is “no, ” such a practice of holding back the identity of the proper defendant is neither ethical nor allowed in the Eastern District of New York under local and national rules. And to the second, “yes, ” the more flexible standards of the two highest courts allow a nunc pro tunc amendment avoiding the statute of limitations.

         Plaintiff has alleged serious civil rights violations by a New York City police officer. He filed suit the day before the expiration of the statute of limitations naming the wrong police officer in his complaint about his prosecution for robbery. The City's attorney representing the named officer possessed, or should have possessed, knowledge about which police officer was involved in the investigation leading to Plaintiff's prosecution for robbery. When Plaintiff finally learned the name of the officer who was responsible for the alleged harm, the attorney for the City claimed it was too late to amend the complaint to name the proper party.

         Plaintiff's amended complaint naming the proper police officer is allowed, with a relation back to the time the original complaint was filed. Defendants' motion for summary judgement on the grounds of a statute of limitations defense is denied.

         II. Facts

         Plaintiff was accused of three crimes in 2007: homicide, escape, and robbery. He was acquitted of the homicide and escape by a jury, and the robbery charge was shortly after dismissed. This suit is based primarily on a theory that the police lacked probable cause to bring charges and prosecute Plaintiff for the robbery.

         The homicide and escape charges are unrelated to the robbery. Oct. 23, 2017 Hr'g Tr. 12:12-20. Plaintiff was accused of committing a murder on July 28, 2007, id. 16:12-20, and it was alleged that while in custody for the homicide charge, Plaintiff, while under the supervision of Detective David Shapiro, escaped from the police precinct, id. 9:25-10:6. Eventually, Plaintiff was sent to jail on the homicide and escape charges. Id. 16:12-17:8; Am. Compl. ¶ 12.

         The robbery charge that forms the basis of the present civil suit is based on a different set of facts. On the evening of July 28, 2007, an armed man entered a retail sports store, threatened and assaulted employees, and forcibly removed $4, 600 from the cash register. Plaintiff's Response to Defendants' Statement Pursuant to Local Rule 56.1 (“56.1 Stmt.”) at ¶ 1, ECF No. 65.

         About a month later, on August 29, 2007, one of the robbery victims, Mohammad Sarwar, was watching the news on television and saw a picture of Plaintiff on a wanted poster related to the homicide and escape accusations. Id. at ¶¶ 2, 3. Mr. Sarwar believed that Plaintiff was the person who robbed the store the previous month; he contacted the 106th Precinct Detective Squad. Id.

         A day later, he met with Detective Fortunato Tranchina, the lead detective responsible for investigating the robbery. Id. at ¶¶ 4-5. Mr. Sarwar was shown a photo array at the precinct and again identified Plaintiff. Id. at ¶ 7. The photo array contained a photograph from the wanted poster that Mr. Sarwar had seen the day earlier-the same photograph that prompted him to come forward to the police. Id. Two other eyewitness-victims of the robbery were also there, Anita Saunders and James Cadawan. Id. They had seen the same wanted poster that Mr. Sarwar saw the prior day, but they expressed some uncertainty about whether Plaintiff was the perpetrator of the robbery. Id.

         On March 11, 2008, Mr. Sarwar, Ms. Saunders, and Mr. Cadawan returned to the precinct to view a lineup. Id. at ¶ 8. Mr. Sarwar identified Plaintiff as the guilty person. Id. Ms. Saunders and Mr. Cadawan viewed the lineup, but did not identify Plaintiff. Id. Ms. Saunders identified a different person with 80% confidence and Mr. Cadawan told the police that he did not recognize any of the people in the lineup. Id.

         On April 24, 2008, Detective Tranchina arrested Plaintiff, who was already in jail on the other charges-homicide and escape-and signed a criminal court complaint charging him with two counts of Robbery in the First Degree. Id. at ¶¶ 9, 11. Plaintiff was, on May 15, 2008, indicted by a Grand Jury for one count of Robbery in the First Degree, one count of Robbery in the Second Degree, two counts of Assault in the Second Degree and one count of Criminal Possession of a Weapon (in the robbery) in the Fourth Degree. Id. at ¶ 13. On September 3, 2008, a criminal court judge determined that the indictment was not defective. Id. at ¶¶ 14-15.

         After spending several years in jail on the robbery, homicide, and escape charges, Plaintiff was tried and acquitted of the homicide and escape. Am. Compl. ¶ 22. That same day he was released from jail on his own recognizance. Id. at ¶ 23. A month later, on September 6, 2012, the robbery charges were dismissed. Id. at ¶ 13.

         Detective Tranchina was the lead detective on the robbery case, which forms the basis of this lawsuit. Plaintiff and his counsel were under the mistaken notion that Detective Shapiro, the officer who was involved in the murder investigation, and from whose custody Plaintiff allegedly escaped, was in charge of the robbery investigation. See Compl. Plaintiff filed suit on this assumption, and named as defendants Detective Shapiro along with twenty John and Jane Doe officers. Id.

         Plaintiff believed that Shapiro had orchestrated his arrest for the robbery as payback for his alleged escape. Oct. 23, 2017 Hr'g. Tr. 9:16-10:13. In discovery, Plaintiff found no evidence that this theory was true, but learned of the extensive involvement of Detective Tranchina in the robbery prosecution. Id.

         III. Procedural History

         Plaintiff filed suit on September 5, 2015. See Compl. As amended, the complaint asserts claims under 42 U.S.C. § 1983 for deprivation of federal civil rights, malicious abuse of process, malicious prosecution, municipal liability, and a claim for intentional infliction of emotional distress under New York state law. See Am. Compl. at 5-10. The original complaint named The City of New York, David Shapiro, a detective, and twenty John and Jane Doe defendants. See Compl. at 1.

         On February 26, 2016, Defendants filed a motion to dismiss the action for failure to state a claim. Plaintiff then amended his complaint on March 18, 2016, mooting the motion to dismiss. See April 19, 2016 Order, ECF No. 21. On June 3, 2016, Defendants answered Plaintiff's First Amended Complaint. See Answer, ECF. No. 25.

         After engaging in discovery, on January 9, 2017, Plaintiff filed a motion to amend his complaint for a second time to add a new defendant, Detective Tranchina, determined in discovery to have been the lead detective in the robbery prosecution at the heart of the instant case. See Pl.'s Mot. Am., EFC No. 46. Defendants opposed the motion on the ground that the statute of limitations had run and that the amended pleading did not relate back to the filing of the original complaint. See Defs.' Opp'n Am., ECF No. 47.

         Magistrate judge Mann agreed with Defendants. She issued a Report and Recommendation on February 10, 2017 recommending that Plaintiff's motion to amend his pleadings and add Detective Tranchina be denied. See R. & R., ECF. No. 59.

         For the reasons indicated below, the statute of limitations does not bar the suit. Relation back is permitted. The report of the magistrate judge recommending denial of permission to amend is reversed.

         IV. Law

         A. Standard of Review from Objections to Magistrate Judge's Report and Recommendations

         The magistrate judge issued a Report and Recommendation on the issue of whether Plaintiff should be granted leave to amend his complaint and whether that amendment relates back to the original pleading. Although this is a Report and Recommendation on a motion to amend a pleading, the magistrate judge recognized that it was effectively a dispositive motion because denial would “foreclose plaintiff's potential claims against Tranchina.” R. & R. at 2 n.2, ECF. No. 59.

         Since this report is dispositive of Plaintiff's claims, the court reviews it de novo. See Fed. R. Civ. P. 72(b); Covington v. Kid, No. 94 CIV. 4234 (WHP), 1999 WL 9835, at *2 (S.D.N.Y. Jan. 7, 1999) (“A dispositive matter is one that disposes of, or terminates, a claim or defense. Because Magistrate Judge Peck's order denying Plaintiff leave to amend the complaint foreclosed the potential claims against P.O. Lorenzo and Lt. Ahearn, it was dispositive.”).

         A party has fourteen days to object to a Report and Recommendation. Fed.R.Civ.P. 72. Plaintiff did not file an objection. But see Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989) (“[T]he district court is not bound by the recommendation of the magistrate.”). The court has discretion to conduct de novo review even without receiving objections within the allotted fourteen-day window. See United States v. Male Juvenile (95-CR-1074), 121 F.3d 34, 39 (2d Cir. 1997) (“Although defendant did not object to the magistrate judge's recommendation . . . [t]he record indicates that the district court made a de novo determination of the Report and Recommendation . . . . The court's review was well within its discretion.”).

         While a failure to timely object may at times lead to a waiver of a right to review, the court here reviews de novo because of the serious ethical and other considerations that were revealed by Defendants' summary judgment motion. The parties have long been on notice that the court was considering this issue. On March 7, 2017 the court informed the parties that it would hear argument on Plaintiff's motion seeking to amend his complaint along with Defendants' motion for summary judgement. See Mar. 7, 2017 Order, EFC No. 62. In a later scheduling order the court informed Defendants that “[c]ounsel for the defendants, the defendants, and prospective defendants may be questioned about their litigation conduct in failing to bring plaintiff's counsel's error to the timely attention of plaintiff's counsel, if that was a failure.” May 17, 2017 Order, ECF No. 71.

         B. Statute of Limitations

         As in the case of many federal substantive statutes, Congress did not establish a statute of limitations for civil rights actions brought pursuant to 42 U.S.C. § 1983. Bd. of Regents v. Tomanio, 446 U.S. 478, 483 (1980). Consequently, federal courts are sometimes driven to “borrow” state statutes of limitations. Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 462 (1975) (citing cases). Section 1988 instructs district courts to follow

the laws of the United States, so far as such laws are suitable to carry [the provisions of Section 1983] into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause . . .

42 U.S.C. § 1988 (emphasis added).

         The state statute to be borrowed should not be selected arbitrarily; the limitations period for “the prosecution of a closely analogous claim” must be chosen because “a federal court is relying on the State's wisdom in setting a limit” for when the action may be brought, which “inevitably reflect a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson, 421 U.S. at 463-64.

         The statutes should be adopted with at least some state interpretative nuances. To properly apply a statute of limitation, it is necessary to understand the purposes underlying it. The purposes underlying statutes of limitation of the state of New York is as follows:

Statutes of limitation are essentially creatures of the legislative rather than of the judicial process. Although isolated instances of time limitations upon the institution of suits existed prior to the seventeenth century, the genesis of modern comprehensive prescription of time limitations is generally ascribed to the English Limitation Act of 1623.
Statutes of limitation are among the more anomalous creatures of the law. They often operate arbitrarily upon passage of the specified period of time to bar justified as well as unjustified claims, and typically apply whether the delay in bringing suit was justifiable or, indeed, could have been avoided at all. They represent a legislative judgment that such occasional hardship is outweighed by the advantages of barring stale claims.
A number of interrelated policy considerations are advanced as the “advantages” that outweigh these occasional hardships.
Perhaps most fundamental, certainly most deeply rooted in the “instinct of men, ” are the considerations that underlie the common appellation of limitation statutes as “statutes of repose.”
It seems harsh that misdeeds and obligations perhaps long forgotten should remain a source of uncertainty and concern, if those harmed do not seek vindication within a reasonable time. Expectation are developed., with the passage of time, that the slate has been wiped clean of ancient obligations, or even that they have been forgiven, and it is not unreasonable to seek security to mold one's affairs in the light of these expectations. So long as the injured person is given a reasonable time and opportunity to seek any desired redress for personal grievance, and is aware of the bar by the passage of time, concern for that person need not conflict with this policy of repose.
The policy consideration most frequently articulated by courts, however, and the one that has had the greatest effect in shaping the law of limitations, concerns the effect of the passage of time upon the availability and reliability of evidence, and the consequent prejudice to fair and accurate determination of factual disputes. Fairness to the defendant is primarily stressed, but concern for the effectiveness of judicial machinery is also apparent.
Less often articulated, but certainly a related element of justification for time limitations, is the experiential knowledge that meritorious claims will usually be pressed within a reasonable period of time, which leads to a presumption of sorts that the probability of merit is less in a stale than a fresh claim. An English judge may have had the probability, as well as the policy of repose in mind, in stating that “Long dormant claims have often more of cruelty than of justice in them.”
In addition to these general policy considerations, statutes of limitation are often used to implement a legislative attitude toward particular types of actions or particular classes of litigants. The short slander period reflects disfavor of this type of action; the two-year and six months medical malpractice period evidences special favorable treatment of a particular class of defendants.

         1 J. Weinstein, H. Korn, & A. Miller., N.Y. Civ. Prac. ¶ 201.01, at 2-7 to 2-9 (1995).

         State legislatures often provide for different statutes of limitations to be used depending on the claims and the parties at issue. See, e.g., Pauk v. Bd. of Trs.' of City Univ. of N.Y., 654 F.2d 856, 861 (2d Cir. 1981) (reviewing different New York statutes of limitations that could apply to plaintiff's Section 1983 claim). Trying to divine which limitations period to apply to a Section 1983 action was a difficult task because there are no causes of action analogous to a federal suit stating claims under Section 1983. That section is “a uniquely federal remedy” that has “no precise counterpart in state law. Therefore, it is the purest coincidence when state statutes or the common law provide for equivalent remedies; any analogies to those causes of action are bound to be imperfect.” Wilson v. Garcia, 471 U.S. 261, 271-72 (1985) (internal quotation marks and citations omitted).

         Another problem with the borrowing rule is the variety of conduct that can constitute the basis of a valid Section 1983 claim. See Id. at 274 (cataloguing some of the “numerous and diverse topics and subtopics” that have been alleged as constitutional claims under § 1983). In endeavoring to apply “analogous” state statutes of limitations, courts could apply different limitation periods to different legal claims falling under the umbrella of a Section 1983 claim, which might even happen within the same lawsuit. Id.

         In the face of these issues, the Supreme Court has explicitly shifted away from the Johnson rationale for using state statutes of limitations-that borrowing limitations statutes is a way to borrow the “wisdom” of state legislatures who balanced the interests of repose and substantive justice when considering “closely analogous claims”-and instead has held that “practical considerations . . . explain why a simple, broad characterization of all § 1983 claims best fits the statute's remedial purpose.” Id. at 272.

         The primary practical consideration relied upon by the Court is that a uniform statute of limitations within each state helped further “the [federal] legislative purpose to create an effective remedy for the enforcement of federal civil rights, ” and the effectiveness of that remedy “is obstructed by uncertainty in the applicable statute of limitations, for scarce resources must be dissipated by useless litigation on collateral matters.” Id. at 275. Eventually, the Supreme Court decided that the three-year statute of limitations of New York CPLR 214(5), which governs general personal injury actions, should be applicable to any and all Section 1983 actions filed in New York. Owens v. Okure, 488 U.S. 235, 251 (1989).

         Supreme Court jurisprudence in this area has led to the peculiar result that the time within which a plaintiff must bring a claim under Section 1983 varies widely from state-to-state. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 379 (2004) (“[L]imitations borrowing resulted in uncertainty for both plaintiffs and defendants, as a plaintiff alleging a federal claim in State A would find herself barred by the local statute of limitations while a plaintiff raising precisely the same claim in State B would be permitted to proceed.”); Katharine F. Nelson, The 1990 Federal “Fallback” Statute of Limitations: Limitations by Default, 72 Neb. L. Rev. 454, 483 (1993) (“A person in North Dakota or Maine who has been denied his or her First Amendment rights has six years in which to assert a claim, but a person in Kentucky or Louisiana loses the same First Amendment claim after only one year.”); David D. Siegel, Practice Commentary on Amendment of Federal Rule 4 (Eff. Feb. 26, 1983) with Special Statute of Limitations Precautions, 96 F.RD. 88, 99 (1983) (“[I]t must strike any observer as incongruous that something as fundamentally ‘federal' as a federal civil rights claim should be subject to varying periods from state to state.”). Though Congress subsequently passed a law establishing a catch-all federal statute of limitations of four years (see 28 U.S.C. § 1658), the law is not retroactive and “applies only to claims arising under statutes enacted after December 1, 1990.” Jones, 541 U.S. at 380. For Section 1983 claims, courts are still required to apply the directives of Section 1988 of Title 42 as interpreted by the Supreme Court.

         The application of state statutes of limitations to Section 1983 claims comes with a caveat; Section 1988 allows for the application of state law only “‘so far as the same is not inconsistent with' federal law.” Wilson, 471 U.S. at 269 (quoting 42 U.S.C. § 1988). “In order to gauge consistency . . ., the state and federal policies which the respective legislatures sought to foster must be identified and compared.” Tomanio, 446 U.S. at 487. While “in general, state policies of repose cannot be said to be disfavored in federal law . . . it is appropriate to determine whether” application of a state statute of limitations is appropriate given the federal policies embodied in the creation of a cause of action under Section 1983. Id. at 488-89.

         The instruction to consider the state's policy in setting the relevant statute of limitations is strange given the Court's acknowledgement that “practical considerations” drove its directive that a single limitations period be used for all Section 1983 claims in any state, and its recognition that “when the federal claim different from the state cause of action in fundamental respects, the State's choice of a specific period of limitation is, at best, only a rough approximation of the point at which the interests in favor of protecting valid ...


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