United States District Court, E.D. New York
MEMORANDUM AND ORDER
M. SCANLON, UNITED STATES MAGISTRATE JUDGE.
filed this action against the Police Officer Jamaal Miller
(“Officer Miller”), Police Office Andrew Ho
(“Officer Ho”), and the City of New York (the
“City”), asserting claims pursuant to 42 U.S.C.
§ 1983 and various state laws arising out of an incident
that occurred on between August 2, 2013 and September 12,
2013. See Compl., ECF No. 1. Currently pending
before this Court is Plaintiff's motion for leave to file
an amended complaint. See Motion to Amend, ECF No.
31. Plaintiff seeks to add Police Office Michale Iovine as a
defendant. See id. For the reasons discussed below,
Plaintiff's motion is granted.
pro se, Plaintiff filed this action on July 1, 2016.
See Compl., ECF No. 1. The following allegations are
drawn from the Amended Complaint and are set forth solely for
the purpose of this motion. On August 2, 2013, Officer Miller
made “derogatory statements” and delivered
“a tirade of obscenities” to Plaintiff when he
encountered him on the street. Compl., ECF No. 1 ¶ 6.
Plaintiff filed a civilian complaint with the Internal
Affairs Bureau (“IAB”). Id. On August 5,
2013, Officer Miller and his “Partner”
“stopped and frisked” Plaintiff “without
provocation, expressing distaste with regards to the
complaint” that Plaintiff had filed with IAB.
Id. ¶ 7. Plaintiff complained to the sergeant
on duty at the 79th Precinct. Id.
August 16, 2013, Officer Miller and his “Partner”
arrested Plaintiff at gunpoint and handcuffed his hands
behind his back. Id. ¶ 8. Officer Miller then
“paraded” Plaintiff up and down the block in
front of passersby and local gang members while shouting that
Plaintiff was “[d]rug dealing scum” and “a
[d]rug dealing piece of expletive.” Id.
Plaintiff was taken to the 79th Precinct whereupon
he was fingerprinted and strip searched. Id. ¶
9. He was then transported to court and arraigned on an open
container violation. Id.
August 17, 2013, Plaintiff's open container violation was
dismissed, and he was released from custody. Id.
¶ 10. Upon his arrival home, he was confronted by local
gang members. Id. Plaintiff filed another civilian
complaint with IAB. Id. ¶ 11.
August 22, 2013, Plaintiff made a complaint to the Civilian
Complaint Review Board (“CCRB”). ECF No. 38.
August 25, 2013, Officer Miller and his “Partner”
stopped and frisked Plaintiff, leveled obscenities at him,
and expressed their displeasure in his filing another
complaint with IAB. Compl. ¶ 12.
September 12, 2013, after giving testimony to the CCRB,
Plaintiff was robbed at gun point by the local gang members
allegedly at the behest of Officer Miller. Id.
complaint asserts claims against Defendants for
constitutional violations under Section 1983 and state law
claims of deprivation of liberty, slander, defamation of
character, intentional infliction of emotional distress,
false arrest, false imprisonment, battery and malicious
prosecution. Id. ¶ 14; Letter, ECF No. 22.
to the CCRB report, Plaintiff's claims against Officer
Miller for discourtesy and abuse of authority were
substantiated. All of his other claims were unfounded or
dismissed by the CCRB. ECF No. 38.
caption of the original complaint named Defendants Jamaal
Miller and Andrew Ho. It did not name any John Doe
defendants. See generally Id.
Dismissal Of The Complaint Against Officer Ho
August 16, 2016, the Honorable Ann M. Donnelly issued a
Memorandum and Order dismissing the action against the New
York Police Department (“NYPD”) and the
79th Precinct (“Precinct”) pursuant to
28 U.S.C. §§ 1951A(b) and 1915(e)(2)(B), and giving
Plaintiff leave to amend the complaint to state with
specificity his factual allegations against Officer Ho.
See generally Memorandum & Order, ECF No. 6. In
the event that Plaintiff did not amend the complaint in
accordance with the Memorandum & Order, the complaint
would be dismissed against Officer Ho for failure to state a
claim pursuant to 28 U.S.C. §§ 1951A(b) and
1915(e)(2)(B). See Memorandum & Order, ECF No. 6
at 5. Contrary to Defendants' contention, see
Defendants' Memorandum of Law in Opposition, ECF No. 32
at 2, the Memorandum & Order did not require that
Plaintiff amend the complaint. Defendants misrepresent that
Judge Donnelly ordered Plaintiff to amend his complaint, Def.
Memo. in. Opp. at 6. In fact, Judge Donnelly afforded
Plaintiff an opportunity to amend his complaint but never
ordered him to do so. See Memorandum & Order,
ECF No. 6 at 5.
Discovery And Plaintiff's Motion To Amend
initial conference was held before this Court on May 25,
2017, during which Defendants were ordered to provide initial
disclosures to Plaintiff by May 26, 2017. According to
Plaintiff, it was from these initial disclosures that he
first discovered that Officer Michael Iovine was the true
identity of Officer Miller's “Partner.” July
6, 2017 Telephone Conference Transcript (“July
Tr.”), ECF No. 30 5:11-6:8, 6:10-14. During a telephone
conference on July 6, 2017, Plaintiff requested permission to
substitute Officer Iovine for Officer Ho. See Minute
Entry, ECF No. 24. This Court provided the parties with a
briefing schedule for Plaintiff's motion to amend.
See id. Plaintiff timely served his moving papers in
accordance with this Court's briefing schedule.
See Letter, ECF No. 25. As indicated above,
Plaintiff seeks to add as a defendant Officer Michael Iovine.
See Motion to Amend, ECF No. 31. According to
Plaintiff, Officer Iovine was the “Partner”
referenced in his original complaint, not Officer Ho. See
maintains that but for a mistaken identity caused by the City
Defendant providing Plaintiff with incorrect information at
the time of his arrest, Office Iovine would have been named
in the original complaint as one of the two arresting
officers. See id. ¶¶ 5-8. According to
Plaintiff, the City Defendant intentionally provided him with
the incorrect information in an effort to mislead and
sabotage him. Id. ¶¶ 9-11. Plaintiff also
asserts that he made factual allegations against Officer
Iovine, whom he referred to as Officer Miller's
“Partner” in the complaint, in paragraphs 6-8 of
the complaint. Id. ¶¶ 1-2. Specifically,
Plaintiff alleges that Officer Iovine made derogatory and
defamatory statements to Plaintiff, id. ¶ 1,
and unlawfully stopped and frisked him, id. ¶
contends Officer Iovine was on notice of the original
complaint because Officer Iovine and Office Miller are both
represented by Corporation ...