United States District Court, E.D. New York
DECISION AND ORDER
DONNELLY, District Judge.
pro se plaintiff, Gustavo Arroyo, brings this civil
rights action against police officers Carmine Bellamore and
James Crawford, under 42 U.S.C. § 1983, in their
individual and official capacities. The plaintiff filed his
initial complaint on September 13, 2013. (ECF No. 1
On April 21, 2017, the plaintiff moved to amend his complaint
to add the County of Nassau as a defendant, and three claims
of municipal liability. (ECF No. 49-2 at 1.) On June 23,
2017, Magistrate Judge Ann Shields issued a Report and
Recommendation ("R&R"), denying the plaintiffs
request to file an amended complaint. (ECF No. 58.) The
plaintiff objected to the R&R on August 11, 2017. (ECF
on my review of the record and the parties' submissions,
I agree with Judge Shields' thorough and well-reasoned
R&R. For the following reasons, I deny the plaintiffs
motion to file an amended complaint.
case has a somewhat convoluted procedural history, which is
set forth in detail in Judge Shields* R&R. (ECF No. 58 at
1-3.) I discuss the details that are pertinent to my
decision. The plaintiff alleges that the defendants violated
his civil rights when they used excessive force during his
arrest, and mistreated him during his later
detention. (ECF No. 1 at 1-2.) On January 26, 2017,
the plaintiff requested an extension to amend his complaint
and add parties. (ECF No. 38.) Judge Shields held an
in-person conference on February 16, 2017, where, among other
things, she denied the plaintiffs motion to amend the
complaint. (ECF No. 43; ECF No. 58 at 3.) However, because,
as part of the discovery process, the defendant was going to
provide the plaintiff with certain medical records, Judge
Shields instructed the plaintiff that "[i]f upon receipt
of medical records Plaintiff determines he would like to add
a party, he can move to amend the complaint at that time,
" (ECF No. 43.) On April 21. 201 7, the plaintiff moved
to amend his request by adding Nassau County as a defendant,
as well as asserting three claims of municipal
liability. (ECF No. 49-3.) Judge Shields denied the
plaintiffs request because (1) the plaintiffs municipal
liability claims are time barred by the three-year statute of
limitations, and (2) in any event, the plaintiffs amendment
would be futile, because he cannot plausibly establish his
municipal liability claims. (ECF No. 58 at 7-8.)
district court reviewing a magistrate judge's report and
recommendation "may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate judge." Fed.R.Civ.P. 72(b).
magistrate judge makes a recommendation that is dispositive
of a party's claim, the district judge must review de
novo any part of the magistrate judge's decision to
which a party properly objects. Fed.R.Civ.P. 72(b)(3). The
court may adopt any sections of the magistrate's report
to which a party did not object, as long as the
magistrate's decision was not "facially
erroneous." Markey v. Lopolla Indus., Inc., No.
12-cv-4622-JS-AK.T, 2016 WL 324968, at *3 (E.D.N.Y. Jan. 26,
2016) (citation omitted).
party does not object to a conclusion in the magistrate
judge's report, the argument is waived, and will not be
reviewed. See, e.g., Johnson v. Woods, 426 Fed.Appx.
10, 11 (2d Cir. 2011) (citing Cephas v. Nash, 328
F.3d 98, 107 (2d Cir. 2003)). Because the plaintiff is a
pro se litigant, I evaluate his submissions by a
more lenient standard; however, "the leniency accorded
pro se litigants is not without limits, and all normal rules
of pleading are not absolutely suspended." Gil v.
Vogilano, 131 F.Supp.2d 486, 491 (S.D.N.Y. 2001)
(quoting Stinson v. Sheriff's Dep't, 499
F.Supp. 259, 262 (S.D.N.Y. 1980) (internal quotation marks
plaintiff makes two related objections to the
R&R. First, he argues that his municipal
liability claims are not be time barred because they
"relate back" to the original complaint. Second, he
objects to Judge Shields' decision that the
defendants' acts, as alleged in the complaint, are
"detached from any policy, inaction or customs
associated with the County of Nassau." (ECF No. 64 at
3.) I agree with Judge Shields' determination that the
plaintiffs new claims do not sufficiently relate back to his
original complaint to avoid the three-year statute of
limitations period. The "touchstone" of the
relation-back principle, under to Federal Rule of Civil
Procedure 15(c)(1)(B), is notice. See U.S. v. The Baylor
University Medical Center, 469 F.3d 263, 270 (2d Cir.
2006); Coronna v. County of Suffolk, No. 05-cv-6016,
2008 WL 2371421, at *3 (E.D.N.Y.June 9, 2008). Under the
rule, an amendment to a complaint "relates back" to
the date of the original pleading when it "asserts a
claim or defense that arose out of conduct, transaction, or
occurrence set out... in the original pleading . ..."
Fed.R.Civ.P. 15(c)(1)(B). The plaintiffs original complaint
focused exclusively on the defendants' conduct during the
plaintiffs arrest and subsequent detention, and does not
mention the conduct of any other officers. (See ECF
No. 1.) Moreover, the plaintiff did not allege any facts
involving Nassau County's policies, training,
supervision, or internal processes. As a result, the
amendment does not relate back to the original complaint, and
is time barred.
agree with Judge Shields that the plaintiffs allegations
cannot support municipal liability claims. To hold Nassau
County liable under § 1983, the plaintiff must show that
it had a policy or custom that caused the deprivation of his
constitutional rights. See Monell v. Dept. of Soc.
Servs., 436 U.S. 658, 690-91 (1978); Cash v. Cty. of
Erie, 654 F.3d 324, 333 (2d Cir. 2011). A single
instance of unconstitutional activity is not enough to impose
liability on a city unless the plaintiff establishes that the
activity was caused by an existing unconstitutional municipal
policy, which was created by a person with final
decision-making authority. See, e.g., City of Oklahoma
City v. Tuttle, 471 U.S. 808, 823 (1985); Berry v.
Village of Millbrook, 815 F.Supp.2d 711, 720 (S.D.N, Y.
2011) (the plaintiff "has not suggested that any
municipal policymaker or municipal policy or custom was
responsible for violations of any litigants' rights apart
from plaintiffs own alleged experience"); Davis v.
County of Nassau, 355 F.Supp.2d 668, 678 (E.D.N.Y 2005)
("A single incident involving an employee below the
policymaking level will generally not suffice to support an
inference of a municipal custom or policy.") (internal
citations omitted). Further, "mere assertions" that
a municipality has a custom or policy of constitutional
violations without factual allegations circumstantially
supporting "such an inference" are generally not
enough. See McCrary v. County of Nassau, 493
F.Supp.2d 581, 588 (E.D.N.Y.2007) (internal citations and
quotation marks omitted); Moloney v. County of
Nassau, 623 F.Supp.2d 277, 289 (E.D.N.Y. 2007). The
plaintiff does not offer any facts in his proposed amended
complaint that support an inference of municipal liability;
he makes only conclusory statements. Therefore, an amendment
would be futile, and I deny his motion to amend. See
Ferrara v. Smithtown Trucking Co., Inc., 29 F.Supp.3d
274, 279 (E.D.N.Y. 2014) ("a motion to amend should be
denied for . . . futility of the amendment. . .");
Ross v. New York City Dept. of Educ, 935 F.Supp.2d
508, 515 (E.D.N.Y. 2013).
remind the plaintiff, as Judge Shields does, that my denial
of his request to amend his complaint does not end his case.
The plaintiff is still able to pursue his § 1983 claims
against the individual defendants.
I adopt Judge Shields' R&R in its entirety, and deny
the plaintiffs ...