KENNETH M. KARAS, District Judge:
Pro se Plaintiff Rafael Ceara ("Plaintiff") filed the instant Complaint pursuant to 42 U.S.C. § 1983 against New York State Department of Corrections and Community Supervision ("DOCCS") Officer Joseph Deacon ("Defendant" or "Deacon"), alleging that Defendant subjected Plaintiff to excessive force when he pushed Plaintiff down several stairs, and then threatened Plaintiff to deter him from filing a grievance about the incident, in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. (See Am. Compl. ("Am. Compl.") (Dkt. No. 7).) Before the Court is Defendant's Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Notice of Mot. to Dismiss ("Mot.") (Dkt. No. 17).) This Motion asserts only that Plaintiff's Action is time-barred. For the following reasons, Defendant's Motion is denied.
The following facts are drawn from Plaintiff's Amended Complaint and are taken as true for the purpose of resolving the instant Motion. On September 5, 2010 at approximately 11:21 a.m., Defendant "malicious[ly] and sadistic[ally] used excessive force to push [Plaintiff, then an inmate at Downstate Correctional Facility in New York,] down several concrete stairs." (Am. Compl. 2.) Other inmates witnessed the incident. (Id. at 3.) As a result of Defendant's conduct, Plaintiff's knee was lacerated and he continues to suffer pain in his knee and back. (Id.)
Defendant and "other officers and sergeants" threatened Plaintiff to deter him from writing a grievance about the incident. (Id.) Plaintiff nonetheless filed a grievance about the incident and wrote to the superintendent and the state police, who "had the Inspector General investigate the matter ... [and] interview several other prisoner[] witnesses and [Plaintiff]." (Id. at 5.) After Plaintiff received an unfavorable response to his grievance, Plaintiff did not appeal the decision because he was not afforded an opportunity to do so. (Id. at 4.)
Plaintiff filed the original Complaint on August 22, 2013. (See Compl. ("Compl.") (Dkt. No. 2).) The original Complaint named "Correctional Officer John Doe which [sic] worked at Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m[.] [to] 3[] p[.]m[.] shift in D-Block, Complex 1" as the defendant. (Compl. 1.) Directly below the information provided about the Defendant, Plaintiff stated that he "wrote to [the] Inspector General for [the] full names and have had [sic] no respon[s]e." (Id.) In parenthesis, Plaintiff noted "C[.]O. Deagan, [h]e has old [sic] brother by same name." (Id.) As "Defendant No. 1," Plaintiff listed "John Doe (C[.]O. Deagan younger brother)." (Id.)
The Court issued an Order of Service pursuant to Valentin v. Dinkins, 121 F.3d 72 (2d Cir.1997), dated September 4, 2013, directing the New York State Attorney General (the "Attorney General") to ascertain the identity and address of the John Doe Defendant that Plaintiff named in the original Complaint within 60 days.
Pursuant to a scheduling order entered after a pre-motion conference on June 16, 2014, (see Dkt. No. 15), Defendant filed the instant Motion to Dismiss, (see Mot.), and a memorandum of law in support of the Motion, (see Mem. of Law in Supp. of Def.'s Mot. to Dismiss ("Def.'s Mem.") (Dkt. No. 18)); Plaintiff submitted a memorandum of law in opposition to the Motion, a grievance dated September 9, 2010, and a letter dated September 6, 2010, (see Mem. of Law in Supp. of Plaintiff from Def.'s Mot. to Dismiss ("Pl.'s Mem.") (Dkt. No. 19)); and Defendant filed a reply, (see
The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of his [or her] entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (second alteration in original) (internal quotation marks omitted). Instead, the Court has emphasized that "[f]actual allegations must be enough to raise a right to relief above the speculative level," id., and that "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, 127 S.Ct. 1955. A plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955. But if a plaintiff has "not nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed." Id.; see also Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ("Determining whether a complaint states a plausible claim for relief will ... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" (alteration in original) (citation omitted) (quoting Fed. R.Civ.P. 8(a)(2))).
In considering Defendant's Motion to Dismiss, the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir.2008) ("We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), accepting all factual allegations in the complaint and drawing all reasonable inferences in the plaintiff's favor." (italics and internal quotation marks omitted)); Gonzalez v. Caballero, 572 F.Supp.2d 463, 466 (S.D.N.Y.2008) (same). Generally, "[i]n adjudicating a Rule 12(b) (6) motion, a district court must confine its consideration to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken." Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir.1999) (internal quotation marks omitted). In deciding a motion to dismiss a pro se complaint, however, it is appropriate to consider "materials outside the complaint to the extent that they are consistent with the allegations in the complaint," Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n. 3 (S.D.N.Y. Aug. 2, 2013) (internal quotation marks omitted), including "documents that a pro se litigant attaches to his opposition papers," Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n. 6 (E.D.N.Y. Dec. 15, 2010); see also Walker v. Schult, 717 F.3d 119, 122 n. 1 (2d Cir.2013) (noting that a court may consider "factual allegations made by a pro se party in his papers opposing the motion"); Rodriguez v. Rodriguez, No. 10-CV-891, 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013) ("Although the Court is typically confined to the allegations contained within the four corners of the complaint, when analyzing the sufficiency of a pro se pleading, a court may consider factual allegations contained in a pro se litigant's opposition papers and other court filings.") (citations and internal quotation marks omitted).
As noted, Defendant's sole basis for seeking dismissal of the Action is that Plaintiff's Amended Complaint is time barred. Because § 1983 does not provide for a specific statute of limitations, courts apply the statute of limitations for personal injury actions under state law. See Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir.2013); Shomo v. City of New York, 579 F.3d 176, 181 (2d Cir.2009) (same); Vasconcellos, 2014 WL 4961441, at *4 (same). Under New York law, the statute of limitations for personal injury claims is three years. See N.Y. C.P.L.R. § 214(5). "Section 1983 actions filed in New York are therefore subject to a three-year statute of limitations," Hogan, 738 F.3d at 517, that begins to accrue "when the plaintiff knows or has reason to know of the harm," Shomo, 579 F.3d at 181 (internal quotation marks omitted).
Here, Plaintiff alleges that Defendant pushed him down the stairs and threatened him on September 5, 2010. (Am. Compl. 2.) Accordingly, Plaintiff had until September 5, 2013 to file his suit. Although Plaintiff filed the original Complaint on August 22, 2013, two weeks before the expiration of the statute of limitations, he listed "Correctional Officer John Doe" as the defendant. Plaintiff did not identify Deacon by name until he filed the Amended Complaint on November 22, 2013. Defendant contends, therefore, that because "Deacon was not named as a defendant in this matter until after the three year statute of limitations expired, [the Amended Complaint] should be dismissed." (Def.'s Mem. 1.)
Usually, "`John Doe' pleadings cannot be used to circumvent statutes of limitations because replacing a `John Doe' with a named party in effect constitutes a change in the party sued.'" Hogan, 738 F.3d at 517 (quoting Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.1993)). Substitutions of a party's name for John Doe, therefore, "may only be accomplished" if the amended pleading relates back to the date of the original complaint under Federal Rule of Civil Procedure 15(c). Aslanidis, 7 F.3d at 1075; see also JCG v. Ercole, No. 11-CV-6844, 2014 WL 1630815, at *12 (S.D.N.Y. Apr. 24, 2014) (same), adopted by 2014 WL 2769120 (S.D.N.Y. June 18, 2014). Accordingly, as Plaintiff did not list Defendant by name until after the statute of limitations expired, his claims are timely only if the Amended Complaint relates back to the original Complaint under Rule 15(c). See Vasconcellos, 2014 WL 4961441, at *5.
"Rule 15(c)(1)(C) provides the federal standard for relation back." Hogan, 738 F.3d at 517. For an amended complaint adding a new party to relate back under Rule 15(c)(1)(C):
Hogan, 738 F.3d at 517 (quoting Barrow v. Wethersfield Police Dep't, 66 F.3d 466, 468-69 (2d Cir.1995)). Here, Defendant does not dispute that the claims in the Amended Complaint arise out of the conduct described in the original Complaint, that he received notice so as not to be prejudiced in maintaining his defense, or that he received notice of the Amended Complaint within 120 days of the filing of the original Complaint. Instead, Defendant argues that Plaintiff cannot meet the third requirement for relation back because under Rule 15(c)(1)(C) "[P]laintiff's reason for not serving Officer Deacon within the three year period, that he did not know the identity of the defendant, is insufficient...." (Def.'s Mem. 4.) Defendant is correct. "[A]lthough `Rule 15(c) explicitly allows the relation back of an amendment due to a `mistake' concerning the identity of the parties ... [,] the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake.'" Hogan, 738 F.3d at 517-18 (quoting Barrow, 66 F.3d at 470). In other words, "lack of knowledge of a John Doe defendant's name does not constitute a `mistake of identity.'" Id. at 518 (citing Barrow, 66 F.3d at 470); see also Vasconcellos, 2014 WL 4961441, at *7 (concluding that the plaintiff's claims did not relate back under Fed.R.Civ.P. 15(c)(1)(C) because the plaintiff was "ignorant" and not "mistaken" about the John Doe defendants' identities); Strada v. City of New York, No. 11-CV-5735, 2014 WL 3490306, at *10 (E.D.N.Y. July 11, 2014) (citing Hogan and explaining that "Barrow remains good law ... and precludes [the] [c]ourt from finding that [the] [p]latiniff's failure to amend the [c]omplaint to name the individual officers was a mistake contemplated by Rule 15(c)"). Accordingly, because Plaintiff cannot satisfy the third requirement, his amended pleading cannot relate back under Rule 15(c)(1)(C). See Hogan, 738 F.3d at 518.
An amended pleading relates back pursuant to Fed.R.Civ.P. 15(c)(1)(A) when "the law that provides the applicable statute of limitations allows relation back." Fed.R.Civ.P. 15(c)(1)(A). In applying Rule 15(c)(1)(A), courts are "to look at the entire body of limitations law that provides the applicable statute of limitations." Hogan, 738 F.3d at 518. Because § 1983 "derives its statute of limitations from state law," the Court looks to New York State law. Id. Here, the applicable state law is § 1024 of the New York Practice Law and Rules ("CPLR"), which states:
N.Y. C.P.L.R. § 1024. As the Second Circuit has recently held, CPLR § 1024 is in fact more forgiving in relating back complaints in the John Doe context. See Hogan, 738 F.3d at 518. Accordingly, the Court must determine whether Plaintiff may take advantage of § 1024. See Wilson v. City of New York, No. 03-CV-2495, 2006 WL 2528468, at *2 (S.D.N.Y. Aug. 31, 2006) (noting that Rule 15(c)(1) directs courts to apply either state or federal law, whichever "affords a more forgiving principle of relating back") (internal quotation marks and citation omitted).
As an initial matter, a plaintiff may not designate a party as "John Doe" under § 1024 if he has actual knowledge of the party's identity. See Deutsche Bank Nat. Trust Co. v. Turner, 32 Misc.3d 1202(A), 934 N.Y.S.2d 33, No. 10-CV-41152, 2011 N.Y. Slip Op. 51153(U), at *2 (Civ.Ct. Apr. 22, 2011); Maurro v. Lederman, 7 Misc.3d 863, 795 N.Y.S.2d 867, 870 (Sup.Ct.2005) ("An explicit prerequisite to the use of CPLR 1024 is plaintiff's ignorance of the defendant's name."). "If none of the name is known, then a completely fictitious name may be utilized. However, such a designation can only be made if the designating party does not know all or part of the other party's name; otherwise the party must be designated to the extent that his or her name is known." First Fed. Savings & Loan Ass'n of Rochester v. Souto, 158 Misc.2d 219, 601 N.Y.S.2d 43, 44 (Civ. Ct.1993); see also Turner, 2011 N.Y. Slip Op. 51153(U), at *2 (same). Here, in the caption, Plaintiff noted that he "wrote to [the] Inspector General for full names and... had no respon[s]e." (Compl. 1.) Also in the caption, Plaintiff wrote "C[.]O. Deagan" and described "Correctional Officer John Doe" as a person who allegedly worked at "Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m. [to] 3[] p[.]m. shift in D-Block, Complex 1." (Id.) Moreover, as "Defendant No. 1," Plaintiff listed "John Doe (C[.]O. Deagan younger brother)." (Id.) Accordingly, from the face of the original Complaint, it is apparent that Plaintiff was, at the very least, ignorant "in part" of Deacon's name, and "designat[ed] so much of [Deacon's] name and identity as [was] known," for purposes of invoking CPLR § 1024.
Under CPLR § 1024, a plaintiff may substitute a named party for a John Doe party nunc pro tunc if the plaintiff meets two requirements. Hogan, 738 F.3d at 518-19. Specifically, a plaintiff must (1) "`exercise due diligence, prior to the running of the statute of limitations, to identify the defendant by name,'" and (2) "describe the John Doe party `in such form as will fairly apprise the party that [he] is the intended defendant.'" Id. (quoting Bumpus v. N.Y.C. Transit Auth., 66 A.D.3d 26, 883 N.Y.S.2d 99, 104 (2009)) (second alteration in original).
Here, as mentioned, Plaintiff noted in his original Complaint that he "wrote to [the] Inspector General for [the] full names and ... had no respon[s]e." (Compl. 1.) In his opposition papers, Plaintiff again explained that in the original Complaint he "named defendant as John Doe due [sic] that [P]laintiff wrote to Inspector General Todd Thomas and received no response." (Pl.'s Mem. 1.) Accordingly, this is not a case where "[n]othing before the [c]ourt indicates that [Plaintiff] took any steps to ascertain [Defendant's] identit[y]." Vasconcellos, 2014 WL 4961441, at *9. Instead, Plaintiff contacted an official to provide information about Defendant's full identity, cf. JCG, 2014 WL 1630815, at *14 (refusing to find the plaintiff acted with due diligence because, among other things, the plaintiff "expended no efforts at all to identify the [i]ndividual [d]efendants..... [like] writ[ing] letters to the Attorney General's Office"), and notified the Court of his futile effort to discover Defendant's identity, cf. Williams, 2010 WL 963474, at *12 (finding due diligence lacking where the plaintiff "provided no information regarding his pre-filing efforts to identify the [i]ndividual [d]efendants.... [d]espite th[e] [c]ourt's request that [the] [p]laintiff provide additional details"); Temple, 933 N.Y.S.2d at 323 (finding lack of due diligence when, among other things, the plaintiff "failed to properly and promptly seek assistance from the [New York] Supreme Court" in identifying the John Doe defendants). Moreover, after the Attorney General notified Plaintiff of the two officers who worked during the relevant shift by letter dated October 25, 2013, (see Dkt. No. 6), Plaintiff filed the Amended Complaint within thirty days naming Deacon as the defendant, as mandated by the Order of Service. (See Order of Service 2; Am. Compl. 1.). Cf. Strada, 2014 WL 3490306, at *6 (refusing to find that the plaintiff acted with due diligence under § 1024 because, among other things, when the defendants provided the plaintiff with the names of the officers involved in the plaintiff's arrest prior to the expiration of the statute of limitations, the plaintiff did not attempt to amend the complaint).
Defendant contends that Plaintiff cannot show the due diligence that CPLR § 1024 requires because "[P]laintiff knew in substantial part ... [D]efendant's identity at the time of the incident but did not identify him within the next three years." (Def.'s Reply 3 n. 1.) To support this assertion, Defendant relies on a grievance that Plaintiff attached to his opposition papers. The grievance is dated September 9, 2010, four days after the alleged incident occurred, and names "C[.]O. Deagan" as the officer that pushed Plaintiff down the stairs. (See Pl.'s Mem. unnumbered attachment 1.) Plaintiff also attached a letter to his opposition papers to "ADA Perez Superint[e]nd[e]nt" dated September 6, 2010, one day after the alleged incident occurred. In the letter, Plaintiff writes that he was "push[ed] and hit in [the] back by Officer Deagan," and "C.O. Deagan" threatened him after he returned from the nurse. (See id. 3, 5.)
The Court is skeptical of Defendant's invitation to rely on the grievance and letter to draw an inference against Plaintiff at the motion to dismiss stage. Courts have held that it may be appropriate to consider materials outside of the Complaint in the pro se context, see Alsaifullah, 2013 WL 3972514, at *4 n. 3, and, in particular, materials that a pro se plaintiff attaches to his opposition papers, see Agu, 2010 WL 5186839, at *4 n. 6 (noting that "[o]n a motion to dismiss, the Court can consider documents that a pro se litigant attaches to his opposition papers"). However, this exception to the general rule
Assuming, arguendo, that it is appropriate to consider the grievance and the letter, the Court rejects Defendant's conclusion that in light of these documents "it seems that [the due diligence] standard could not be satisfied." (Def.'s Reply 3 n. 1.) Rather, the documents may be read to support Plaintiff's statement in his original Complaint that he did not know Deacon's "full name[]." (Compl. 1) (emphasis added). Indeed, Plaintiff refers to Defendant in the grievance and the letter as "Deagan" and in the original Complaint as "C[.]O. Deagan [sic] younger brother." Rather than conclusively establish that Plaintiff did not exercise due diligence in identifying Defendant, the documents suggest that Plaintiff did not know Defendant's full name, and therefore, at the very least, there is an "issue of fact as to whether [Plaintiff] exercised due diligence in attempting to identify and serve [Defendant]." Lepore, 992 N.Y.S.2d at 332. This is not, then, a case where a statute of limitations "defense appears on the face of the complaint[,]" warranting dismissal. Staehr, 547 F.3d at 425. Instead, because of Plaintiff's effort to identify Defendant through the inspector general, his notification to the Court of these efforts, and his amendment naming Deacon as the defendant when the Attorney General disclosed Deacon's full identity pursuant to the Order of Service, the Court finds at this stage that Plaintiff acted with due diligence to meet the first requirement of § 1024.
Plaintiff also satisfies the second requirement of § 1024. As an initial matter, the Court notes that Defendant has not addressed whether the original Complaint sufficiently notified him that he was the intended defendant. See Vallade v. Fischer, No. 12-CV-231, 2014 WL 5481881, at *9 (W.D.N.Y. Oct. 29, 2014) (report and recommendation), adopted by 2014 WL 5481881 (recommending denial of part of the defendants' motion for summary judgment based on the plaintiff's failure to identify and substitute one defendant as the John Doe defendant prior to the expiration of the statute of limitations because the defendants made no attempt to address either of the two requirements under § 1024). In any event, the Court finds that Plaintiff "describe[d] the John Doe party `in such form as ... fairly apprise[d] [Deacon] that [he was] the intended defendant.'" Hogan, 738 F.3d at 519 (quoting Bumpus, 883 N.Y.S.2d at 104). As discussed above, in the original Complaint, Plaintiff alleged that the John Doe defendant worked at Downstate Corr[ectional] [F]ac[ility] on Sep[tember] 5, 2010 on [sic] the 7[] a[.]m. [to] 3[] p[.]m. shift in D-Block, Complex 1." (Compl. 1.) In parenthesis, Plaintiff noted "C[.]O. Deagan, [h]e has old [sic] brother by same name." (Id.) As "Defendant No. 1," Plaintiff listed "John Doe (C[.]O. Deagan younger brother)." (Id.). Moreover, Plaintiff's detailed description of the incident in the original Complaint provided
(Compl. 3.) This provided sufficient information about Defendant. See Maurro, 795 N.Y.S.2d at 868 (finding that the plaintiff's description of "`Jane Doe' as a/k/a `Jane' Usa, M.D., the physician who treated [the plaintiff] at [the defendant's] office whose name is fictitious as presently unknown' was sufficient for [the] purpose" of fairly apprising the defendant that she was the intended defendant); Duncan v. City of New York, No. 11-CV-3901, 2014 WL 3530858, at *3 (E.D.N.Y. July 15, 2014) (finding the defendant "was fairly apprised that he was one of the John Doe defendants against whom [the plaintiff] intended to assert a claim" because, among other things, the relevant complaint "made clear that there was an additional unidentified officer whom [the plaintiff] specifically described as having participated in holding him down on the barbershop floor and punching and kicking him — the precise conduct he ... ascribe[d] to [the defendant]" in his operative complaint). Plaintiff also included the address of the facility, information identifying the complex, information identifying the stairs at which the alleged incident occurred, and 11:21 a.m. as the approximate time of the incident. (Compl. 2, 4.) Plaintiff's original Complaint, therefore, "describes with particularity the date, time, and location of the alleged ... incident." Hogan, 738 F.3d at 519. Accordingly, Plaintiff satisfies the second requirement of § 1024. His claims against Deacon, therefore, are not time-barred under Rule 15(c)(1)(A).
In light of the foregoing analysis, the Court denies Defendant's Motion to Dismiss. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.)
SO ORDERED.
