United States District Court, W.D. New York
DECISION AND ORDER
ELIZEBETH A. WOLFORD UNITED STATES DISTRICT JUDGE.
Jeffrey Blane Houghtaling ("Plaintiff), proceeding pro
se, filed this action on July 24, 2014, pursuant to
42 U.S.C. § 1983, alleging a "constitutional due
process violation" against Brian Fischer
("Fischer"), the former Commissioner of the New
York State Department of Corrections and Community
Supervision, Deborah Eaton, a senior correctional counselor
("Defendant"), and Dale Artus ("Artus"),
the Superintendent of Gowanda Correctional Facility
(hereinafter, "the original complaint"). (Dkt. 1).
On December 5, 2014, Plaintiff filed a motion for an
extension of time to serve the original complaint (Dkt. 2),
and, on December 12, 2014, filed an amended complaint against
only Fischer (hereinafter, "the first amended
complaint") (Dkt. 3). On April 10, 2015, United States
District Judge William M. Skretny granted Plaintiffs motion
for an extension of time, allowing an additional 90 days from
the date of the Court Order to serve the first amended
complaint, and made the first amended complaint against
Fischer the operative pleading. (Dkt. 4).
Plaintiff indicated that he had mistakenly named only Fischer
in the first amended complaint while operating under a
misapprehension of the law, namely, that Fischer could be
held liable under 42 U.S.C. § 1983 for his supervisory
role over those who Plaintiff alleges personally violated his
rights. (Dkt. 7 at 2; Dkt. 8 at 3). Plaintiff stated that
upon realizing that Fischer enjoyed qualified immunity, he
sought to amend the first amended complaint to name only
Defendant, the correctional counselor allegedly personally
responsible for Plaintiffs grievances. (See Dkt. 7
at 2). In doing so, he both filed his new amended complaint
(hereinafter, "the second amended complaint") on
July 6, 2015 (Dkt. 5), and served it upon Defendant on July
7, 2015 (Dkt. 6).
August 7, 2015, Plaintiff filed a motion requesting leave
from the Court to make the second amended complaint the
operative pleading, and for the Court to find that his claims
against Defendant be deemed timely filed through the
doctrines of relation back or equitable tolling. (Dkt. 7;
Dkt. 8). Plaintiff also requested the appointment of counsel.
(Dkt. 8 at 6). On June 8, 2016, the undersigned granted
Plaintiffs request for leave to amend and made the second
amended complaint the operative pleading, and denied
Plaintiffs motion for the appointment of counsel. (Dkt. 10).
On October 27, 2016, Defendant filed an answer to the second
amended complaint. (Dkt. 17). On the same day, the case was
referred to United States Magistrate Judge Jonathan W.
Feldman pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) for
supervision of pretrial non-dispositive matters. (Dkt. 18).
January 18, 2017, Plaintiff filed "a motion to Amend
Caption and add [Corrections Officer] Zmuda as a named
defendant" in this action. (Dkt. 31). Plaintiff argued
that Corrections Officer Zmuda's ("CO. Zmuda")
"unlawful actions have always been clearly documented in
all pleadings, " that CO. Zmuda was "acting under
color of state law" at the time the allegedly wrongful
conduct occurred, and that this amendment would not cause him
any prejudice. (Id. at 2-3). Plaintiff also appeared
to suggest that the statute of limitations should be tolled
because he initially retained a law firm that was
unresponsive to his needs for fifteen months. (Id.
at 3). Notably, Plaintiff alleges that the incident occurred
on July 24, 2011, and Plaintiffs original complaint was filed
on July 24, 2014. (SeeDkt. 1).
filed papers in response to the motion for leave to amend.
(Dkt. 33). Defendant argues that Plaintiff did not comply
with Local Rule 15 because he failed to attach a third
amended proposed pleading to his motion. (Dkt. 33-1 at 3-4).
Defendant then asserts that, in any event, the proposed
amendment is futile because it does not relate back to the
original complaint and is not subject to equitable tolling,
and thus, it is time-barred by the applicable statute of
limitations. (Id. sit 5-21). Finally, Defendant
contends that Plaintiff was dilatory in seeking to add CO.
Zmuda to this action, and that CO. Zmuda would be unfairly
prejudiced if he was added as a defendant. (Id. at
filed reply papers in support of his motion where he
reiterated many of the same arguments asserted in his initial
motion papers. (See Dkt. 35). On April 24, 2017,
Plaintiff filed a motion to supplement his motion to amend,
indicating that he plans to assert claims of assault and
battery against CO. Zmuda, in his individual capacity, in
violation of Plaintiffs rights under the Fifth, Eighth, and
Fourteenth Amendments of the United States Constitution.
(Dkt. 42 at 2).
September 29, 2017, Magistrate Judge Feldman issued a
thorough and comprehensive Report and Recommendation,
recommending that Plaintiffs motion to amend be denied. (Dkt.
47). Judge Feldman construed Plaintiffs motion as both a
motion to amend the caption of the second amended complaint
to reflect that CO. Zmuda was a named defendant in the
original complaint, and as a motion for leave to amend the
second amended complaint. (Id. at 1). Specifically,
Judge Feldman recommended that Plaintiff s motion be denied
in the former respect because Plaintiffs allegations in the
original complaint did not indicate that CO. Zmuda was
personally involved in Plaintiffs alleged constitutional due
process violation. (Id. at 7-9). Judge Feldman also
recommended that Plaintiffs motion be denied in the latter
respect because Plaintiffs proposed claims against CO. Zmuda
did not relate back to the filing of the original complaint
since Plaintiff failed to demonstrate that there was any
"mistake" in the identity of CO. Zmuda as a
potential party defendant. (See Id. at 9-17).
Plaintiff filed objections to those portions of Judge
Feldman's Report and Recommendation that determined that
Plaintiffs original complaint did not sufficiently allege CO.
Zmuda's personal involvement in the alleged
constitutional violation, and that found that Plaintiff did
not satisfy the strictures of Rule 15(c)(1)(C) of the Federal
Rules of Civil Procedure. (Dkt. 48). Defendant filed papers
in response on October 26, 2017. (Dkt. 50).
November 13, 2017, Plaintiff filed a reply to Defendant's
response to his objections. (Dkt. 51). In this reply,
Plaintiff withdrew his request to add CO. Zmuda to the
caption, "as it is not relevant to the body of the
complaint." (Id. at l). In addition, Plaintiff, for
the first time, claims that CO. Zmuda "was clearly
involved in the Due Process violations at the Tier III
hearing" because he was "in collusion with
[Defendant] when he submitted false testimony at the
hearing." (Id. (emphasis omitted)). Plaintiff
also states, for the first time, that CO. Zmuda
"violated [his] Due Process [rights] by resorting to
First Amendment Retaliation" by engaging in physical
contact after Plaintiff complained that his '"dinner
is out of sight [and] around other inmates.'"
(Id. (emphasis omitted)). Plaintiff further argues
that the New York State Office of the Attorney General was
"always" aware of CO. Zmuda's allegedly
wrongful actions against Plaintiff. (Id. at 2). For
the reasons set forth below, Judge Feldman's Report and
Recommendation is adopted in its entirety.
Standard of Review
Judge Feldman's Report and Recommendation concludes that
leave to amend should be denied because any amendment would
not relate back to the filing of the original complaint, and
thus would be futile since the claims are barred by the
applicable statutes of limitation, this Court reviews that
determination under a de novo standard of review.
See HCC, Inc. v. RH&MMach. Co., 39 F.Supp.2d
317, 321 (S.D.N.Y. 1999) ("This Court is of the view
that denial of leave to amend is a dispositive decision at
least in situations where the denial is premised on
futility."); Ezeh v. McDonald, 13-CV-6563, 2016
WL 1254012, at *4 n.3 (W.D.N.Y. Mar. 14, 2016) ("Because
my findings and conclusions regarding the futility of
plaintiffs motion operate as a dispositive determination that
[proposed defendants] may not be joined as defendants in this
case, my determinations are made as part of a Report and
Recommendation and not a Decision and Order."),
report and recommendation adopted, 2016 WL 1271513
(W.D.N.Y. Mar. 30, 2016); cf. Fielding v. Tollaksen,
510 F.3d 175, 178 (2d Cir. 2007) (suggesting, in dicta, that
a motion to amend is a nondispositive motion that may be
referred to a magistrate judge without the parties'
consent and that a magistrate judge's order on such a
motion is to be set aside only if it is clearly erroneous or
contrary to law); Steuben Foods, Inc. v. GEA Process
Engineering, Inc., l:12-CV-00904 EAW JJM, 2016 WL
3876644, at *l-2 (W.D.N.Y. July 12, 2016) (concluding that
the standard of review for a magistrate judge's denial of
leave to amend based on procedural grounds, as opposed to
futility of proposed amendment, was "clearly erroneous
or contrary to law").
course, this de novo standard of review applies to
only those portions of the Report and Recommendation to which
objections were filed. See Mario v. P & C Food Mkts.,
Inc.,313 F.3d 758, 766 (2d Cir. 2002) ("Where
parties receive clear notice of the consequences, failure [to
timely] object to a magistrate's report and
recommendation operates as a waiver of further judicial
review of the magistrate's decision."); see
L.R. Civ. P. 72(b) ("Written objections to proposed
findings of fact and recommendations for disposition
submitted by a Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) shall specifically identity the portions of the
proposed findings and recommendations to which objection is
made and the basis for each objection, and shall be supported
by legal authority."). In the absence of a specific
objection, the district court reviews for clear error or
manifest injustice. Singh v. NY. State Dep't of
Taxation & Fin.,865 F.Supp.2d 344, 348 ...