HUGH B. SCOTT, Magistrate Judge.
Plaintiff Jason Cooper ("Cooper") asserts that he was attacked by corrections officers on October 21, 2012, when the officers mistook him for someone who participated in a prison riot. For up to eight hours after the riot, the corrections officers allegedly attacked Cooper a second time, transferred him from one cellblock to another, and failed both to document his whereabouts and to file certain procedurally required incident reports. Cooper subsequently commenced this litigation, alleging various theories of liability by way of 42 U.S.C. § 1983.
Because the current operative complaint (Dkt. No. 10) was filed when Cooper was pro se, he now seeks leave to amend his complaint with the aid of pro bono counsel.
District Judge William M. Skretny has referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 22.) The Court held oral argument on September 13, 2018. For the reasons below, the Court grants Cooper's motion in part.
The Court summarized the relevant background facts in its prior Decision and Order and largely repeats it summary here.
This case concerns accusations of an assault that Cooper suffered at the hands of corrections officers while an inmate at Five Points Correctional Facility ("Five Points" or "5PCF") in Romulus, New York. On October 21, 2012 around 9:00 PM, an inmate riot broke out in the Five Points recreational yard. Cooper was in the yard at the time. Cooper claims to have had no involvement in the riot, but he was misidentified as a participant and assaulted anyway in the recreational yard shortly after corrections officers restored order. Cooper alleges a second assault after he was taken inside and brought to a Five Points intake area:
(Dkt. No. 77-1 at 8.) Apart from the assaults themselves, Cooper has drawn attention in his pleadings to how officials at Five Points lost track of him for up to eight hours during the night of October 21-22, 2012. By "losing track," Cooper means that the riot should have prompted a number of procedures and reports including a count of all inmates from his Block 9; paperwork documenting his transfer from one cellblock to another; the creation of an Unusual Incident Report; and the filing of a Use of Force Report. None of these procedures happened, which would implicate various DOCCS directives and state regulations. As a result, according to Cooper, officials at Five Points have no documentation of Cooper's whereabouts for up to eight hours after the riot in question:
(Id. at 9-10.)
Cooper commenced this case by filing his original complaint on December 11, 2012. (Dkt. No. 1.) The original complaint included now-proposed defendant Michael Sheahan ("Sheahan"), but Sheahan was dismissed during initial screening before service of process. (Dkt. No. 9.) Cooper filed an amended complaint on May 23, 2013. (Dkt. No. 10.) Cooper was pro se when he filed both of these complaints. Judge Skretny appointed pro bono counsel for Cooper on February 3, 2015. (Dkt. No. 50.)
Cooper now has filed the pending motion for leave to file his first complaint prepared with the assistance of pro bono counsel. "Mr. Cooper seeks to bring back into the present action Five Points Correctional Facility Superintendent Michael Sheahan as a party, as well as add the Five Points Correctional Facility Watch Commander on duty the night of October 21, 2012 and early morning of October 22, 2012, Five Points Correctional Facility Correction Officer C. Haff, the New York State Department of Corrections and Community Service ("DOCCS") Inspector General and John Doe(s)." (Dkt. No. 77-1 at 5.) Cooper believes that Sheahan is aware of the facts from the original complaint and that Haff can be considered to have constructive notice because his representation would come from the New York State Office of the Attorney General. With respect to John Doe defendants, "the original complaint listed John Doe as a defendant. Enough of the facts now alleged in support of the new claims against the Watch Commander are all contained in the Amended Complaint such that he will be fairly apprised that he is an intended defendant. Mr. Cooper has attempted to obtain the identity of the Watch Commander in the limited discovery that has taken place, including a subpoena duces tecum served upon DOCCS but DOCCS has not provided the name of the Watch Commander." (Id. at 18.) As for substantive allegations, the existing two counts for excessive force under Section 1983 would remain unchanged. Cooper proposes adding new Counts 3 through 9 as summarized below:
Defendants oppose Cooper's motion for several reasons. Procedurally, defendants believe that the time for amendments has passed. "Plaintiff acknowledges that the statute of limitations has run but argues that under Rule 15(c)(1)(C) his PAC [proposed amended complaint] relates back to the original Complaint, so he should be permitted to add new defendants and claims that he has only recently become aware of the plausibility of pleading. See Dkt. No. 77-1, p.13. To proceed with the claims, therefore, plaintiff must, but cannot, satisfy Rule 15(c)." (Dkt. No. 80 at 5.) Defendants then explain why, in their view, Rule 15(c) will not apply here: The rule contemplates changes in parties and not additions of parties; the rule helps with mistaken identity of parties, and Cooper has not claimed any mistake; the proposed new defendants did not have notice of the case within the original time for service of process; and all defendants would suffer prejudice from a dramatic increase in the amount of discovery that would become necessary in an already six-year old case. Defendants object further that Cooper has not done enough to identify who the John Doe defendants might be. Defendants have substantive objections as well. In defendants' view, Cooper's allegations about various administrative violations do not satisfy the "shock the conscience" standard required for violations of substantive due process. Cooper's allegations also failed to establish a constitutional right to administrative investigations. Finally, defendants assert that Cooper continues to fall short of a plausible allegation of purposeful discrimination, as would be necessary to establish a violation of equal-protection standards.
Under the circumstances here, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave to amend "should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citation omitted). "An amendment to a pleading will be futile if a proposed claim could not withstand a motion to dismiss pursuant to Rule 12(b)(6)." Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002) (citation omitted).
The first issue that the Court needs to examine is whether Cooper's proposed new claims would be timely. As summarized above, defendants say no for several reasons: The limitations period has run; Cooper made no mistake about identity; the proposed new defendants did not receive notice within the time for service of the original complaint; and Cooper has not provided enough information to help identify any John Doe defendants. (Dkt. No. 80 at 7-10.) Cooper acknowledges a three-year limitations period for Section 1983 claims. (Dkt. No. 77-1 at 14.) There can be no serious question here that, if Cooper were starting from scratch, the time to commence claims from an incident in 2012 would have expired a long time ago. See, e.g., Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013) ("Section 1983 does not provide a specific statute of limitations. Thus, courts apply the statute of limitations for personal injury actions under state law. Section 1983 actions filed in New York are therefore subject to a three-year statute of limitations.") (citations omitted).
The real question, then, is whether Cooper can relate any new claims back to any existing claims that he did file timely. Under Rule 15(c)(1), an amendment to a pleading relates back to the date of the original pleading when:
Fed. R. Civ. P. 15(c)(1). Cooper proposes adding several John Doe defendants: a more generic John Doe defendant who was a corrections officer on duty during the night in question; the Watch Commander on the night in question, whose name currently is unknown but whose identity should be fairly easy to confirm; and the DOCCS Inspector General, a distinct individual whose name currently is unknown to Cooper. State law, which furnishes the limitations period here, allows for relation back of John Doe defendants. See N.Y. C.P.L.R. ("CPLR") 1024. "To take advantage of § 1024, a party must meet two requirements. First, the party must exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name. Second, the party must describe the John Doe party in such form as will fairly apprise the party that he is the intended defendant." Hogan v. Fischer, 738 F.3d 509, 519 (2d Cir. 2013) (internal quotation and editorial marks and citations omitted). Cooper has shown due diligence in several ways. When he was still pro se, Cooper engaged in discovery such as interrogatories (Dkt. No. 21) to determine what happened on the evening in question and who was on duty. Cf. Soller v. Boudreux, No. 12-CV-0167 SJF SIL, 2015 WL 500492, at *6 (E.D.N.Y. Feb. 3, 2015) (finding CPLR 1024 satisfied "particularly since plaintiffs were proceeding pro se at the time the applicable limitations period expired"). Cooper's pro bono counsel additionally served subpoenas and engaged in other discovery (see Dkt. No. 57); the goal of the additional discovery included ascertaining everyone on duty on the night in question and everyone responsible for the events that unfolded. As for descriptions, the timetable for Cooper's allegations has assisted in putting the parties on notice as to who the John Doe defendants might be: any corrections officers or supervisors on duty or in charge in the night in question, who have not yet been identified. Cf. Ceara v. Deacon, 68 F.Supp.3d 402, 411-12 (S.D.N.Y. 2014) ("Plaintiff's detailed description of the incident in the original Complaint provided sufficient information about the identity of Defendant, the location of the incident, and Defendant's precise conduct."). Under these circumstances, relation back for the John Doe defendants applies by way of Rule 15(c)(1)(A). Additionally, Cooper has named John Doe defendants as far back as his original and amended pro se complaints. (Dkt. Nos. 1, 10.) The theories of liability in the pro se complaints differ somewhat from the theories in the proposed amended pleading, but the Court can grant Cooper some latitude for the difference, especially now that pro bono counsel is providing assistance. "Provided the amended pleading is based on the same series of transactions and occurrences alleged in the original pleading, the revised pleading will relate back to the original pleading, even where the revised pleading contains legal theories not included in the original." White v. White Rose Food, 128 F.3d 110, 116 (2d Cir. 1997) (citations omitted); see also McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) ("[W]e read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.") (internal quotation marks and citation omitted); Fleming v. Verizon New York, Inc., 419 F.Supp.2d 455, 467 (S.D.N.Y. 2005) (citations omitted); Mask v. Johnson, No. 96 CIV. 6167 (DC), 1997 WL 662337, at *3 (S.D.N.Y. Oct. 22, 1997). Relation back for the John Doe defendants thus would apply by way of Rule 15(c)(1)(B) as well.
Relation back for the proposed named defendants operates a little differently. Cooper named defendant Sheahan in the original pro se complaint, but Sheahan was dismissed during initial screening because Cooper was asserting only respondiat superior liability against him at that time. (Dkt. No. 9 at 4.) Sheahan thus was never served with either the original or amended pro se complaints. Cf. United States v. The Baylor Univ. Med. Ctr., 469 F.3d 263, 270 (2d Cir. 2006) (no relation back in a qui tam action where, of necessity, the sealed complaint was never served); accord U.S. ex rel. Deering v. Physiotherapy Assocs., Inc., 601 F.Supp.2d 368, 375 (D. Mass. 2009) (The Second Circuit, the only federal court of appeals to decide the issue [concerning sealed qui tam complaints], has held that a claim brought outside the statutory limitations period cannot relate back to a complaint never served on the defendant. . . ."). Nonetheless, Sheahan likely knew, or should have known, of the probability of litigation given the grievance that Cooper filed about the incident in question. Sheahan also likely knew, or should have known, that the other defendants were served and that he also would have been served but for a defective theory of liability by a pro se plaintiff. There is a significant possibility that Cooper dropped Sheahan in his amended pro se complaint out of the mistaken belief that, with one theory of liability having failed, he could not press any theory of liability. Cf. Krupski v. Costa Crociere S. p. A., 560 U.S. 538, 550 (2010) ("A prospective defendant who legitimately believed that the limitations period had passed without any attempt to sue him has a strong interest in repose. But repose would be a windfall for a prospective defendant who understood, or who should have understood, that he escaped suit during the limitations period only because the plaintiff misunderstood a crucial fact about his identity."). Prejudice against Sheahan is unlikely. The same counsel will provide representation. Some discovery likely would have to be added with respect to possible liability against Sheahan, but discovery that has occurred so far would apply equally. Sheahan thus can be added to the new amended complaint. The amendment to add proposed defendant Haff is the toughest call. If the Court had to consider adding Haff as a standalone proposition then it would have difficulty seeing how Haff would fit under any of the provisions of Rule 15(c). At the same time, though, Haff likely will have the same counsel as the currently named defendants and will have to defend against the same alleged events. Cf. Archibald v. City of Hartford, 274 F.R.D. 371, 380 (D. Conn. 2011) ("In this case, Attorney Ricketts, who represents Officers Labbe and Spearman, also represents Detectives Fargnoli and Watson, and the Court finds that he knew or should have known that Officers Labbe and Spearman would be added to the suit. The original Complaint contained considerable detail regarding the roles of John Doe 1 and Jane Doe 1 and Mr. Archibald's interaction with those officers as well as with the other unidentified officers."). Further, this case does not require adding Haff as a stand-alone proposition. The parties continue to work on the identities of the officers and supervisors on duty during the night in question. The parties have not ruled out the possibility that Haff is one of the John Doe defendants. Cf. Bishop v. Best Buy, Co. Inc., No. 08 CIV. 8427 LBS, 2010 WL 4159566, at *3 (S.D.N.Y. Oct. 13, 2010) ("Here, the individual employees plainly had notice. While the original complaint did not identify individual employees by their full names, it identified the positions held by each—Loss Prevention Manager, Store Director, Manager, and Security Guard—and the first name of Peter Troupas, who allegedly shouted a racial epithet at Plaintiff."). Prudence warrants allowing the addition of Haff for now and revisiting the issue later if necessary. "To hold that Rule 15(c) does not permit relation back in such circumstances would permit defense counsel to eliminate claims against any John Doe defendant merely by resisting discovery requests until the statute of limitations has ended." Byrd v. Abate, 964 F.Supp. 140, 146 (S.D.N.Y. 1997).
The Court has substantive concerns about the allegations against the proposed defendants, and those concerns are addressed below. Procedurally, however, the Court sees no barrier to allowing Cooper's proposed amended complaint to relate back to the original complaint.
Apart from any procedural arguments about timeliness, defendants object on substance to the claims that Cooper would add in Counts 3 through 7 of his proposed amended complaint. Common to all four proposed counts is Cooper's assertion that, because he "is incarcerated and under the bodily control of DOCCS, a special relationship is present between DOCCS and Mr. Cooper. This special relationship imposes upon DOCCS, and its employees, a constitutional duty under the Substantive Due Process Clause of the Fourteenth Amendment to take reasonable measures to keep Mr. Cooper safe at 5PCF." (Dkt. No. 77-2 at 9, 13, 15, 16, 17.) According to Cooper, the proposed new defendants violated substantive due process protections by failing to account for all inmates after the riot occurred; by failing to follow proper procedure requiring them to include Cooper in an Unusual Incident Report; by discarding a Use of Force Report that was prepared concerning Cooper; and by failing to conclude a grievance investigation by determining whether a bona fide harassment issue existed. (Dkt. No. 77-2 at 15-18.) Defendants counter that Cooper's "substantive due process claims must fail because he had failed to allege conduct which shocks the conscience and was so brutal and offensive that it did not comport with traditional ideas of fair play and decency. He has instead repeatedly alleged that the proposed defendants merely failed to follow various DOCCS directives, which notably is not a basis for a 42 U.S.C. § 1983 [action]." (Dkt. No. 80 at 19 (internal quotation and editorial marks and citations omitted).)
Defendants note correctly, and the Court wrote previously, that "it is well settled that violations of state regulations, standing alone, are not cognizable under section 1983." Telesford v. Annucci, No. 916CV0793BKSDEP, 2017 WL 3600941, at *6 (N.D.N.Y. July 26, 2017) (citations omitted), report and recommendation adopted, No. 916CV0793BKSDEP, 2017 WL 3588640 (N.D.N.Y. Aug. 18, 2017). (See also Dkt. No. 74 at 8-9.) To the extent that Cooper is alleging violations of inmate counts and grievance procedures in themselves, those allegations are not actionable. Cooper, however, is alleging something more here—a substantive due process right to safety while in custody. Cooper successfully has tied this right to safety to a plausible allegation that the current and proposed defendants lost track of him for eight hours after a prison riot, leaving him vulnerable to physical attack. "[T]he right to personal security constitutes a `historic liberty interest' protected substantively by the Due Process Clause. And that right is not extinguished by lawful confinement, even for penal purposes." Youngberg v. Romeo, 457 U.S. 307, 315 (1982). Youngberg and cases that have cited it discussed substantive due process rights within the context of pretrial detainees. See, e.g., Velasquez v. City of New York, No. 12-CV-4689, 2012 WL 5879484, at *2 (E.D.N.Y. Nov. 21, 2012) ("While in custody, a pretrial detainee has a Fourteenth Amendment substantive due process right to care and safe conditions."). Cooper is not a pretrial detainee, and cases addressing the safety of convicted inmates seem to do so under the Eighth Amendment, not the Fourteenth. See, e.g., Farmer v. Brennan, 511 U.S. 825, 833 (1994) ("In particular, as the lower courts have uniformly held, and as we have assumed, prison officials have a duty to protect prisoners from violence at the hands of other prisoners.") (internal quotation and editorial marks and citations omitted); Hayes v. New York City Dep't of Corr., 84 F.3d 614, 620 (2d Cir. 1996) ("The Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody. Moreover, under 42 U.S.C. § 1983, prison officials are liable for harm incurred by an inmate if the officials acted with `deliberate indifference' to the safety of the inmate.") (citations omitted). These cases coincide with the general principle that "[w]here a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of `substantive due process,' must be the guide for analyzing these claims." Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., plurality opinion) (internal quotation marks and citations omitted); see also id. at 271-72 ("As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended. The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.") (internal quotation marks and citations omitted).
Consequently, and recognizing that Cooper has alleged something plausible beyond just a violation of prison regulations, the Court will try to strike a balance between allegations that originated in a pro se complaint; the assistance that pro bono counsel is trying to provide; and the important principles under Section 1983 that defendants are advocating. The substance of Counts 3 through 7 will be permitted, but Cooper will have to recast them as Eighth Amendment violations of safety guarantees for inmates. The Court denies Cooper's motion to the extent that he is attempting to fit any allegations about safety under the Fourteenth Amendment.
The Court will be brief with the last two counts of the proposed amended complaint. Defendants challenge these proposed counts on the basis that they differ little from proposed equalprotection counts that the Court rejected previously. (Dkt. No. 80 at 21-22.) The Court agrees. The Court addressed in its prior Decision and Order why Cooper will not be able to plead any plausible allegations about violations of the Equal Protection Clause. (Dkt. No. 74 at 7-9.) That same analysis is incorporated here by reference. The Court accordingly denies Cooper's motion for leave to add Counts 8 and 9.
Simply put, and subject to the completion of discovery and dispositive motion practice, Cooper has an Eighth Amendment case about excessive force and deliberate indifference to inmate safety. The proposed amended complaint may proceed if conformed accordingly. For all of the above reasons, then, the Court grants Cooper's motion for leave to amend (Dkt. No. 77) in part. On or before January 10, 2019, Cooper will file and serve an amended complaint that is consistent with this Decision and Order. The Court denies Cooper's motion to the extent that it seeks any other relief.
SO ORDERED.
