Boyde v. Mignano, et al, No. 6:2008cv06242 - Document 164 (W.D.N.Y. 2013)
Court Description: -CLERK TO FOLLOW UP-DECISION AND ORDER granting 156 Motion for Summary Judgment.. The Clerk is directed to enter judgment for French and to terminate him as a party to this action.Signed by Hon. Charles J. Siragusa on 5/8/13. (KAP)
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Boyde v. Mignano, et al Doc. 164 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK __________________________________________ THOMAS W. BOYDE, IV, Plaintiff DECISION AND ORDER -vs08-CV-6242 CJS LIEUTENANT MIGNANO, et al., Defendants __________________________________________ Thomas Boyde (“ Plaintiff” ), formerly a pre-trial detainee at the Orleans County Jail, alleges that Defendants violated his federal constitutional rights, in violation of 42 U.S.C. § 1983. Now before t he Court is a summary judgment motion (Docket No. [#156]) by defendant Deputy French (“ French” ). The application is granted. BACKGROUND Unless otherw ise noted the follow ing are the facts of the case view ed in the light most-favorable to Plaintiff, the non-moving party. At all relevant times, Plaintiff w as a pre-trial detainee facing prosecution in Monroe County, New York, for insurance fraud. Plaintiff, though, had previously assisted in an internal affairs investigation against a Monroe County Sheriff’ s Deputy. Consequently, pursuant to an agreement betw een Plaintiff and Monroe County, Plaintiff w as housed outside of Monroe County, in the Orleans County Jail. 1 At Orleans County Jail, Plaintiff w as housed in a cell block w ith other inmates including Carl Turner (“ Turner” ). Some t ime prior to July 31, 2007, Turner w as 1 The agreement required that Plaintiff be housed outside of Monroe County, but did not specifically require that he be housed in Orleans County. 1 Dockets.Justia.com transported to Monroe County for a court appearance. On July 31, 2007, tw o Monroe County Sheriff’ s Deputies transported Turner back to the Orleans County Jail. 2 Upon his arrival at Orleans County Jail, Turner accused Plaintiff of being an informant in a federal drug investigation. Plaintiff denied the accusation and asked Turner how he came to believe that Plaintiff w as an informant, and Turner responded that he had been told so by one of the Monroe County Deputies w ho had transported him. Turner described the deputy as a “ stocky, bald w hite guy.” Another inmate at the Orleans County Jail, named James Sanderson (“ Sanderson” ), overheard this conversation betw een Plaintiff and Turner. Shortly thereafter, Plaintiff w rote a letter to the Corrections Staff at Orleans County Jail, telling them that he w as in danger because Turner w as telling other inmates that he w as a snitch. How ever, the jail staff did not move Plaintiff or otherw ise take steps to protect him. On or about August 30, 2007, Turner and Plaintiff fought, and Plaintiff sustained various physical injuries requiring stitches. According to Turner, the fight began w hen Plaintiff attacked him, after another inmate, Hector Lopez (“ Lopez” ), threw w et paper on Plaintiff w hile he w as napping in his cell. According to Turner, Plaintiff came out of his cell and attacked him, either because he did not know w ho threw the w et paper or because he figured that Turner w as the w eakest man on the cell block. Turner’ s testimony on this point is supported by contemporaneous records 2 This is Plaintiff’s theory, with which French seems to agree, though he does not agree that he was one of those deputies. However, Turner testified that when he was transported by Monroe County Sheriff’s deputies, it was generally when they were picking him up at the Orleans County Jail and taking him to the Monroe County Jail. See, Turner Dep. at pp. 25, 39 (“I think Orleans County picked me up. Usually that’s how it worked.”). Such testimony suggests that it would have been Orleans County personnel who brought Turner back to Orleans County from Monroe County on July 31, 2007, not Monroe County Personnel. 2 from the Orleans County Jail. Specifically, an incident report dated August 30, 2007, concerning the fight states, in pertinent part: I also asked Boyde w hat his involvement w as w ith inmate Turner and he stated he struck Turner in the head then st at ed t hat he did [so] in self defense. Boyde w ent on to say that he felt t hat if he didn’ t strike out against Turner he w ould not live to see the morning. Boyde also stated ‘ The inmates in t he block threw piss soaked toilet paper on me w hen I w as sleeping.’ I asked Boyde if he struck any inmates in the block and he now stated ‘ No but I w as struck by several inmates in the block.’ Boyde again stated ‘ I struck out in fear for my life.’ Docket No. [#28-2] at p. 10. Immediately after the fight Plaintiff w as removed from Orleans County Jail and taken to a medical facility. A short time later, Plaintiff w as transferred to another jail by defendant French, a Monroe County Sheriff’ s Deputy. Because French apparently is a “ stocky, bald w hite guy,” Plaintiff assumed that he w as the deputy w ho allegedly told Turner that he w as a snitch. Plaintiff confronted French w ith the accusation, but French denied it and reported Plaintiff’ s accusation t o his superior officer, Sergeant Mancini (“ Mancini” ). Mancini maintains that he investigated Plaintiff’ s accusation, and concluded that French w as not one of the officers w ho transported Turner to the Orleans County Jail on July 31, 2007. Instead, Mancini concluded t hat t he tw o transport deputies on July 31, 2007 w ere Corporal Daniel Mooney and Deputy Benjamin Breedlove. On June 4, 2008, Plaintiff commenced this action, proceeding pro se. Plaintiff sued Monroe County, the Monroe County Sheriff and various Orleans County defendants. In pertinent part, the Complaint [#1] alleged that Monroe County and the 3 Monroe County Sheriff violated Plaintiff’ s constitutional rights by housing him in Orleans County w hen he did not have any charges pending against him in that county. 3 The Complaint [#1] did not allege any w rongdoing by any Monroe County Sheriff’ s Deputy. On September 10, 2008, Plaintiff filed an Amended Complaint [#7], w hich similarly sued Monroe County and the Monroe County Sheriff, for housing him at the Orleans County Jail. See, Amended Complaint ¶ ¶ 33-35. The Amended Complaint [#7] likew ise did not allege any w rongdoing by any Monroe County Sheriff’ s Deputy. Moreover, neither the Complaint [#1] nor the Amended Complaint [#7] alleged any facts to explain w hy Turner had attacked Plaintiff. Specif ically, neither pleading alleged that Turner attacked Plaintiff because he had been told by someone that Plaintiff w as an informant. On October 7, 2008, the undersigned referred this action to t he Honorable Jonathan W. Feldman, United States Magistrate Judge, for all non-dispositive pretrial matters. During pretrial discovery, Plaintiff filed several motions [#29, 37, 40, 58] to compel discovery, in w hich he sought, inter alia, information concerning the identities 3 At Plaintiff’s deposition, he testified that he believes the assault on him at the Orleans County Jail was part of a plot to murder him, because he provided information about wrongdoing by a Monroe County Sheriff’s deputy and an assistant Monroe County district attorney, both of whom allegedly patronized Plaintiff’s wife’s escort service. See, e.g., Pl. Dep. at pp. 12, 17, 19-25. More specifically, Plaintiff testified that “the internal affairs agreement came about because the deputy was at fault [and it was agreed] that I would never be housed at Monroe County Jail ever again.” Id. at p. 19. Consequently, Plaintiff’s contention in his Complaints that there was no reason for him to be housed outside of Monroe County Jail was false. 4 of Monroe County Sheriff’ s Deputies. 4 On March 29, 2010, Magistrate Judge Feldman issued a Decision and Order [#77], granting, in pertinent part, Plaintiff’ s fourth motion to compel [#58] and directing the Monroe County Defendants to respond to Plaintiff’ s request for production of documents [#43] and interrogatories [#51]. Plaintiff’ s interrogatories included a request to identify, by name, badge number and photograph, the Monroe County Deputies w ho had transported Turner betw een July 1, 2007 and August 31, 2007. See, [#51] at no. 1. On May 6, 2010, Monroe County responded to Plaintiff’ s interrogatories, and in response to Plaintiff’ s aforementioned interrogatory no. 1, stated that Turner had been transported by six different deputies, w hose names and badge numbers w ere listed. See, [#82] at p. 2. French w as not one of the listed deputies. Monroe County also provided Plaintiff w ith Turner’ s “ Inmate Move History.” Plaintiff subsequently filed motions for sanctions, arguing that Monroe County had failed to make complete disclosures. See, [#79] & [#84]. On July 19, 2010, Magistrate Judge Feldman issued an Order [#90] granting Plaintiff’ s application for appointment of counsel. On July 23, 2010, Magistrate Judge Feldman denied Plaintiff’ s pro se motions for discovery sanctions w ithout prejudice, w ith the understanding that Plaintiff’ s new ly-appointed counsel could renew the motions if he felt that it w as appropriate to do so. 4 On June 30, 2008, Plaintiff filed a demand [#5] for discovery addressed to the Monroe County Sheriff’s Department, seeking the names of deputy transport officers who had transported Turner between “May and August 2008.” The demand did not explain why Plaintiff was seeking that information. Shortly thereafter, the Monroe County defendants turned over discovery that referenced Plaintiff’s contention that a transport deputy had told Turner that Plaintiff was an informant. Accordingly, the Monroe County Attorney was aware of Plaintiff’s theory on that point prior to him ever including it in a pleading. 5 Plaintiff maintains that French committed a constitutional violation against him on July 31, 2007,5 w hich is the date that French allegedly told Turner that Plaint if f w as an informant. Consequently, on July 31, 2010, the three-year statute of limitations governing Section 1983 claims against French expired. At t hat t ime, Plaintiff had not asserted any claim against French, either by name or as a John Doe defendant, though he clearly could have done so. Moreover, at the time the limitations period expired, neither of Plaintiff’ s complaints contained any allegation of w rongdoing by a Monroe County Sheriff’ s deputy, nor any allegation that Turner attacked Plaintiff because he believed Plaintiff w as a snitch. At most, the pleadings indicat e t hat Orleans County officials w ere aw are that Plaintiff w as in danger prior to the attack, for unspecified reasons. On October 21, 2010, approximately three months after the limitations period expired, Plaintiff’ s recently-appointed counsel filed a motion [#97] for leave to file a Second Amended Complaint. The motion to amend indicated that Plaint if f intended to pursue claims against tw o unnamed Monroe County Sheriff’ s deputies w ho had told Turner that Plaintiff w as an informant. In that regard, the motion stated that in the prior tw o complaints, Plaintiff had w rongly sued Monroe County and the Monroe County Sheriff. 6 The proposed Second Amended Complaint omitted Monroe County 5 See, Pl. Memo of Law [#158] at p. 5 (“The limitations period ran on July 31, 2010.”). 6 Plaintiff’s memo of law in support of the amendment asserted, though, that, “The substance of Boyde’s claims remains the same. That is, as the result of false statements made by two Monroe County Sheriff’s deputies to a fellow inmate at the Orleans County Jail, Carl Turner, . . . Boy was brutally attacked and injured on August 29, 2007.” Memo [#97-1] at p. 1. The Court cannot agree with that statement, however, since neither of the two previous complaints asserted anything resembling such a claim. Accordingly, while Plaintiff may have been thinking about pursuing such a claim, it was not correct to (continued...) 6 and the Monroe County Sheriff, and added “ Does 1-2.” For reasons that are unclear, it appears that the Monroe County Defendants did not respond to or oppose the motion to amend. On January 14, 2011, Magistrate Judge Feldman granted Plaintiff’ s motion to file a Second Amended Complaint. On that point, it is notew orthy that in connection w ith the motion to amend, none of the parties raised issues before Magistrate Judge Feldman pertaining to the stat ute of limitations, w hich had expired in July 2010. Accordingly, Magistrate Judge Feldman did not make a ruling either w ay as to the timeliness of the amended claim against “ Does 1-2.” During further discovery, Plaintiff attempted to learn the identity of the John Doe defendants. At deposition, Turner stated that he had been transported by French both before and after August 30, 2007. Turner further stated that some t ime after August 31, 2007, he told French, during a transport, that he had gotten into a fight w ith Plaintiff, and that French had responded w ith w ords to the effect that Plaintiff w as “ not popular” at the Monroe County Jail.7 Turner denies, though, that French ever said that Plaintiff w as an informant. Turner stated that he subjectively “ read betw een the lines” and interpreted French’ s comment, about Plaintiff being “ unpopular,” as 6 (...continued) assert that the substance of his “claim” remained the same, since his claim was what was contained in his pleadings. 7 See, Turner Dep. at 86 (“Q. Did anyone from Monroe County Sheriff’s Department ever say to you that Mr. Boyde was a snitch? A. I think they were talking about he was not popular. He was not popular in Monroe County Jail. I don’t remember them saying that. I’m sure they could have, but I don’t remember.”); see also, id. at pp. 24-25, 129-131. 7 suggesting that Plaintiff w as either an informant or a child molester/rapist. 8 How ever, Turner denies that French ever stated that Plaintiff w as an informer or snitch. At times during the deposition, Turner’ s testimony regarding the timing of French’ s “ unpopular” comment w as equivocal as to w hether it w as made before or after Plaintiff w as removed from t he jail on or about August 30, 2007. How ever, Turner’ s testimony w as unequivocal that the subject conversation w ith French occurred in response to him telling French about the fight w ith Plaintiff. Orleans County Jail inmate Joseph Sanderson testified at deposition that on or about July 31, 2007, he overheard Turner tell Plaintiff that a Monroe County Deputy had told him that Plaintiff w as an informant in a federal drug investigation. Moreover, documentary evidence indicates that in early August 2007, Plaintiff w rote a letter to officials at the Orleans County Jail, stating that Turner w as claiming that he had been told by a Monroe County Deputy that Plaintiff w as an informant. Consequently, t here is evidence that prior to August 31, 2007, Turner made such a statement to Plaintiff, though there is no admissible evidence that a deputy actually told Turner that Plaintiff w as an inf ormant. That is, there is evidence that Turner made such an accusat ion, but no evidence supporting Turner’ s accusation. How ever, assuming that a deputy in fact made such a statement to Turner, none of 8 “Normally when guards are speaking to tell you things, you got to read between the lines. They’re not going to come out and say it because its going to jeopardize them their jobs, what they have. So they’ll say things and you got to try to catch the little key words and read between the lines of what they’re saying. And by [French] saying, ‘He’s not very popular amongst the people at Monroe County Jail,’ just him saying ‘people’ and not saying ‘guards’ would lead me to believe that [he was a snitch], because there’s only two ways that you can be unpopular with other inmates, and that’s if you molest a child or rape a woman, or you snitch.” Turner Dep. pp. 87-88. Of course, Turner’s speculations on that point are not evidentiary proof in admissible form. Moreover, the record suggests that if Plaintiff was not popular at the Monroe County Jail, it was because he had assisted in an investigation of a Monroe County Deputy, which is why he was not housed at Monroe County jail in the first place. 8 the aforementioned evidence indicates the identity of the deputy. The only evidence of identity concerning French is Turner’ s testimony that French told him that Plaintiff w as unpopular at the Monroe County Jail. After obtaining the requested discovery, on January 16, 2012, Plaintiff, by his counsel, filed a motion [#141] for leave to file a Third Amended Complaint. The proposed Third Amended Complaint listed French as a defendant for the first time in this action. As part of that motion, Plaintiff indicated that the statute of limitations against French expired on July 31, 2010. Plaintiff argued, though, that his proposed amendment to add French as a defendant w ould “ relate back” to the original complaint. On that point , Plaint if f argued that his failure to name French previously w as a “ mistake,” since Plaintiff had previously “ imputed” French’ s conduct to Monroe County and the Monroe County Sheriff. Plaintiff claimed t hat relation back w as therefore appropriate pursuant to Soto v. Brooklyn Correctional Facility, 80 F.3d 34 (2d Cir. 1996) (“ Soto” ). Plaintiff also argued that French had the required “ notice” under Rule 15(c), because, as mentioned above, sometime after August 31, 2007 Plaintiff verbally accused French of telling Turner that Plaintiff w as an informant. Plaintiff did not argue that French had actual notice of this law suit. How ever, Plaintiff maintained that French w as put on constructive notice of this law suit, since Plaintiff had sued Monroe County and t he Monroe County Sheriff. In that regard, Plaintiff argued that either the County, or the Sheriff, or their attorney, should have know n that French w as the person w hom Plaintiff w as actually trying to sue, apparently based on Plaintiff’ s discovery demands. 9 French opposed Plaintiff’ s request to f ile a Third Amended Complaint. See, [#143]. French argued, in part, that the statute of limitations had expired, and that the proposed amendment w ould not relate back as against him pursuant to, inter alia, Barrow v. Wethersfield Police Dept., 66 F.3d 466 (2d Cir. 1996), w hich ruled that a failure to identify a John Doe defendant is not a “ mistake” w ithin the meaning of Rule 15(c). See, [#143-2] at pp. 4-9. How ever, on March 9, 2012, Magist rat e Judge Feldman granted Plaintiff’ s motion to file a Third Amended Complaint. In his summary Order [#146] granting that application, Magist rate Judge Feldman indicated that he w as granting the motion to amend for “ reasons [that he] set forth on the record” follow ing oral argument of the motion. The undersigned has listened to Magistrate Judge Feldman’ s untranscribed audio recording of that oral argument. In it, Magistrate Judge Feldman indicated, in pert inent part, that he believed that amendment w as appropriat e, and that the amendment w ould relate back as against French, pursuant to Soto, because Plaintiff’ s decision to sue Monroe County and the Monroe County Sheriff rather than French w as a “ classic mistake of law ,” since Plaintiff had at t empted to assert respondeat superior claims against Monroe County and the Monroe County Sheriff arising out of French’ s conduct. Magistrate Judge Feldman cautioned, though, that he w as making that ruling w ithout prejudice to French bringing a later dispositive motion on the question of relation back. In that regard, Magistrate Judge Feldman noted, for example, that further discovery might be needed to determine w hether French had actually received the required notice of this law suit under Rule 15(c). In any event, the Third Amended Complaint [#148] is now t he 10 operative complaint in this action. On June 29, 2012, French filed the subject motion to dismiss, or in the alternative, for summary judgment [#156]. French contends that the claim against him should be dismissed for the follow ing reasons: 1) it is time-barred and the amendment against him does not relate back; and 2) Plaintiff cannot prove that French told Turner that Plaintiff w as an informant. As to this latter point, French contends that Plaintiff’ s theory is based on hearsay and speculation since both French and Turner deny that French made such a statement. On April 17, 2013, counsel for the parties appeared before the undersigned for oral argument. At the close of oral argument, the Court granted counsel leave to file supplemental letter briefs, w hich w ere filed on April 24, 2013. DISCUSSION Rule 56 Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). “[T]he movant must make a prima facie showing that the standard for obtaining summary judgment has been satisfied.” 11 MOORE’S FEDERAL PRACTICE, § 56.11[1][a] (Matthew Bender 3d ed.). The underlying facts contained in affidavits, attached exhibits, and depositions, must be viewed in the light most favorable to the non-moving party. U.S. v. Diebold, Inc., 369 11 U.S. 654, 655 (1962). Summary judgment is appropriate only where, "after drawing all reasonable inferences in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party." Leon v. Murphy, 988 F.2d 303, 308 (2d Cir.1993). Statute of Limitations At the outset, the Court w ill consider French’ s arguments pertaining to the statute of limitations. On this point, Plaintif f suggests that the Court should not consider such arguments, since t hey are the same arguments that French raised unsuccessfully w hen he opposed Plaintiff’ s mot ion t o file a Third Amended Complaint s. See, Pl. Memo of Law [#158] at p. 2, 4. Plaintiff contends that Magistrate Judge Feldman rejected those arguments, and Plaintiff should therefore not be allow ed “ a second bite at the apple.” See, id. at p. 2 (“ [T]hat decision w as correct on the law and should not be reconsidered or overruled now .” ). Of course, the Court ordinarily does not re-visit rulings by a Magistrate Judge to w hich the losing party did not file objections. Here, how ever, it is clear that Magistrate Judge Feldman granted Plaintiff’ s mot ion t o file a Third Amended Complaint w ithout prejudice to French renew ing his Rule 15(c) arguments before the undersigned, follow ing discovery. Magistrate Judge Feldman reiterated that point several times. Accordingly, the Court w ill reconsider the relation-back issue de novo. The applicable rule of law is FRCP 15(c)(1), w hich provides that an amendment w ill relate back w hen (A) the law that provides the applicable statute of limitations allow s relation back; 12 (B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in the original pleading; or (C) the amendment changes the party or the naming of the party against w hom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, w ithin the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment: (i) received such notice of the action that it w ill not be prejudiced in defending on the merits; and (ii) knew or should have know n that the act ion w ould have been brought against it, but for a mistake concerning the proper party' s identity. FRCP 15(c)(1) (West 2013). Since the Third Amended Complaint w as filed to add a party, not a claim, the amendment w ill not relate back unless it falls under either FRCP 15(c)(1)(A) or 15(c)(1)(C). The amendment does not relate back under 15(c)(1)(A) In the instant case, Rule 15(c)(1)(A) w ould allow the amendment to relate back if such amendment w ould relate back under the law of New York State, w hich is the state law that provides the applicable three-year statute of limitations. On that point, [t]he New York Court of Appeals has held that an amendment w ill generally relate back if (1) the new claim arises out of the same conduct, transaction, or occurrence set forth in the original complaint, (2) the new defendant is “ united in interest” w ith the existing defendants such that he w ould have not ice of the law suit and w ill not be prejudiced in his defense, and (3) the failure to name the proper party previously w as the result of an excusable mistake. Buran v. Coupal, 87 N.Y.2d 173, 178, 638 N.Y.S.2d 405, 408, 661 N.E.2d 978 (1995). 13 Dooley v. Columbia Presbyterian Med. Ctr., No. 06 Civ. 5644(JCF), 2009 WL 129941 at * 3, n. 8 (S.D.N.Y. Jan. 16, 2009). Here, even assuming arguendo that the amendment satisfies the first and third of those requirements, it does not satisfy the second, since French is not “ united in interest” w ith Monroe County or the Monroe County Sheriff. See, Trisvan v. County of Monroe, 26 A.D.3d 875, 809 N.Y.S.2d 369 (4 t h Dept. 2006) (Where plaintiff originally sued Monroe County and Monroe County Sheriff, her subsequent amendment, after the expiration of the limitations period, adding a Monroe County Sherif f’ s deputy as a defendant, did not relate back: “ Supreme Court properly denied the motion on the ground that plaintiff failed to establish that the deputies are united in interest w ith the County and the Sheriff, and thus plaintiff is not entitled to the benefit of the relation back doctrine) (collecting cases explaining w hy, as a matter of law , deputies are not united in interest w ith either the county or the sheriff w hom they serve). Accordingly, the amendment does not relate back under New York State law . 9 The amendment does not relate back under 15(c)(1)(C) As set forth above, under the Federal Rules of Civil Procedure, the subject amendment w ould relate back if “ the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out--or attempted to be set out--in 9 The Second Amended Complaint named “Does 1-2,” and New York State law, CPLR § § 203, 306-b and 1024, allows John Doe pleadings to toll the statute of limitations under certain circumstances. See, e.g., Huitzil v. Delta Intern. Machinery Corp., 09 Civ. 00451(JGK), 2011 WL 3251508 at *3 (S.D.N.Y. Jul. 26, 2011) (“[CPLR § 1024] authorizes the filing of complaints against “John Doe” defendants. The filing of a “John Doe” complaint can toll the applicable statute of limitations, provided the plaintiff shows that he made genuine efforts to ascertain the defendants' identities prior to the running of the statute of limitations.”) (citation and internal quotation marks omitted). However, those provisions are not applicable here, since the limitations period had already expired when Plaintiff filed the Second Amended Complaint. 14 the original pleading,” and if, w ithin 120 days of the filing of the action, French both “ received such notice of the action that [he] w ill not be prejudiced in defending on the merits” and “ knew or should have know n that t he action w ould have been brought against [him], but for a mistake concerning the proper party' s identity.” (emphasis added). Here, the Court need not decide w hether the first of those requirements is satisfied, since Plaint if f cannot show that the second and third requirements are satisfied. In that regard, the Complaint [#1] in this action w as filed on June 4, 2008. On September 15, 2008, the Court granted Plaintiff’ s application to proceed in forma pauperis and directed the Clerk of the Court to cause the U.S. Marshal to serve the defendants.10 “ Generally, w here a litigant applies for in forma pauperis [(“ IFP” )] status, w hich confers the automat ic right to service of process by U .S. Marshals, the 120–day time limit for service of process pursuant to Fed. R. Civ. Proc. 4(m) is tolled during the pendency of that motion.” Bastedo v. North Rose-Wolcott Cent. Sch. Dist., No. 10–CV–6162L, 2011 WL 2110812 at * 1 (W.D.N.Y. May 26, 2011) (citation omitted). Accordingly 120 days from the date of the Order granting Plaintiff’ s IFP motion w as January 13, 2009. As of that date, the operative pleading w as the Amended Complaint [#7] w hich did not contain any allegations against a Monroe County Sheriff’ s deputy, or any respondeat superior claims against Monroe County or the 10 The Marshal served Monroe County and the Monroe County Sheriff on October 27, 2008 and November 7, 2008, respectively. 15 Monroe County Sheriff.11 Plaintiff has not show n that French had any notice of “ the action” on or before January 13, 2009, and even if he had such notice, it w ould not have been apparent to him from the Amended Complaint that Plaintiff w as attempting to assert a claim against him. It is true that in June 2008, Plaintiff filed a “ motion for discovery,” seeking the names of Monroe County Sheriff’ s deputies w ho had transported Turner. How ever, that motion did not explain w hy Plaintiff w as seeking the information, and in any event the Sheriff’ s department had determined, long before the commencement of the action, that French w as correct in asserting that he w as not the deputy w ho had transported Turner on July 31, 2007.12 Furthermore, the notice required under Rule 15(c)(1)(C) is notice of “ the action,” meaning the claims that are actually pleaded or that have attempted to be pleaded, not the claims that the plaintiff might possibly plead at some later time. Even assuming arguendo that French w as bound by the County Attorney’ s know ledge, it is the content of the pleading, not discovery demands, that provides the required not ice under Rule 15(c). See, Bank Brussels Lambert v. Chase Manhattan Bank, N.A., 1999 WL 672302 at * 2 (S.D.N.Y. Aug. 27, 11 In opposition to French’s motion, Plaintiff argues that in his first two complaints, he “mistakenly sued Monroe County and Sheriff O’Flynn and attributed Deputy French’s conduct to those entities.” Pl. Memo [#158] at 8. That statement is clearly incorrect, since as already discussed those complaints do not even arguably attempt to assert vicarious liability against the County or the Sheriff for anyone else’s conduct. 12 Plaintiff argues that French should be deemed to have notice of this action because in or about September 2007, Plaintiff verbally accused French of having told Turner on July 31, 2007 that Plaintiff was a snitch. However, the Court disagrees since Plaintiff had no basis to make such allegation, except for the fact that French was, like many men, stocky and bald, and French denied the accusation. Also on that point, Plaintiff reportedly alleged that the deputy who allegedly told Turner that he was a snitch went by the name “Taylor,” and there is no indication that French was known by that name. See, Mancini Report, Monroe County Rule 26 Disclosures [#27]. More importantly, even if French had learned, over a year later, that Plaintiff had commenced a lawsuit arising out of his injury, a perusal of the Complaint undoubtedly would have assured French that Plaintiff was not attempting to assert any claim against him. 16 1999) (Rejecting Plaintiff’ s argument that defendant w as put on notice w ithin meaning of Rule 15(c) by discovery demands). Accordingly, at the relevant time under Rule 15(c)(1)(C), neither Monroe County, the Sheriff, the Count y At t orney 13 nor French w ould have had reason to think that French w ould be sued in this action but for a mistake concerning the proper party’ s identity. For all of the foregoing reasons, the Court finds that the amended claim against French did not relate back to the filing of this action, and is therefore untimely and must be dismissed. The Merits of Plaintiff’ s Claim Against French Even assuming that the claim against French w as timely, t he Court w ould nevertheless find that French is entitled to summary judgment on the merits. Plaintiff contends that French acted outrageously by telling Turner that Plaintiff w as a snitch, know ing that such an accusation w ould put Plaintiff in danger. Such facts, if proven, could support a Fourteenth Amendment claim.14 How ever, Plaintiff implicitly concedes that there is no admissible evidence to prove his theory that French 13 See, Green v. New York City Dept. of Corr., No. 93 Civ. 3360 SAS, 1997 WL 96548 at *3 (S.D.N.Y. Mar. 5, 1997) (“Under the doctrine of constructive notice the court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the officials originally sued, so long as there is some showing that the attorney knew [or should have known] that the additional defendants would be added to the existing suit.”) (citations omitted). Here, the record does not show that the Monroe County Attorney had such notice during the relevant period. 14 On that point, “courts have recognized that being labeled a ‘snitch’ in the prison environment can indeed pose a threat to an inmate's health and safety in violation of the Eighth Amendment, [and] in general prison officials will [be held responsible if the inmate is injured.]” Abney v. Jopp, 655 F.Supp.2d 231, 233 (W.D.N.Y. 2009) (citation and internal quotation marks omitted). Moreover, “[c]onstitutional claims by pretrial detainees must instead be analyzed under the Due Process Clause of the Fourteenth Amendment, which, in practice, involves the same test as that used to analyze claims by convicted inmates under the Eighth Amendment.” Mayo v. County of Albany, 357 Fed.Appx. 339, 341, 2009 WL 4854022 at *1 (2d Cir. Dec. 17, 2009). On the other hand, the Court does not believe that merely stating that an inmate was “unpopular” would support such a claim. 17 specifically told Turner that Plaintiff w as an informant, since, in his papers, he states merely that Turner “ w as led to believe by Deputy French that Plaintiff w as, in fact, a ‘ snitch.’ ” Pl. Memo of Law [#158] at p. 5 (emphasis added). On that point, Plaintiff contends, though w ithout any supporting evidence, that French “ led Turner to believe” that Plaintiff w as a snitch, after Turner specifically asked French w hether Plaintiff w as a snitch. How ever, according to Turner, he merely told French that he had been in a fight w ith Plaintiff, and French responded w ith w ords “ to the effect that” Plaintiff w as “ not popular” at the Monroe County Jail. It is clear from all of the foregoing that Plaintiff lacks sufficient evidentiary proof in admissible form to support his claim. Plaintiff has no firsthand know ledge of anything that French may have told Turner, and no admissible evidence that French told Turner that Plaintiff w as a snitch.15 Plaintiff also has no evidentiary proof in admissible form that French w as the deputy w ho transported Turner on July 31, 2007, since Turner never told Plaintiff the deputy’ s name. At most, Plaintiff suspects that it w as French, because Turner claimed to have spoken to a “ bald, stocky w hit e deputy.” Plaintiff nevertheless contends that based on the entire record, and particularly Turner’ s deposition, a reasonable jury could find that French told Turner that Plaintiff w as a snitch. How ever, the Court disagrees, and finds that any such conclusion by a jury w ould be based on speculation, and not on reasonable inferences 15 Plaintiff argues that Turner testified that he asked French whether Plaintiff was a snitch. See, Pl. Supplemental Submission [#163] at p. 1, citing to Turner Deposition at pp. 42 and 86-87. However, Turner stated that he did not recall asking French whether Plaintiff was a snitch. See, Turner Dep. at pp. 42-43, 86-87. 18 draw n from the admissible evidence. 16 CONCLUSION French’ s summary judgment motion [#156] is granted. The Clerk is directed to enter judgment for French and to terminate him as a party to this action. SO ORDERED. Dated: Rochester, New York May 8, 2013 ENTER: /s/ Charles J. Siragusa CHARLES J. SIRAGUSA United States District Judge 16 Plaintiff’s theory is that the deputy who transported Turner on July 31, 2007 told Turner that Plaintiff was an informant in a federal drug investigation in order to have Plaintiff assassinated. See footnote 3 above. Plaintiff has no evidence that French transported Turner on that date. Plaintiff has evidence that on some undetermined date, French told Turner that Plaintiff was “unpopular” at the Monroe County jail, which was true because Plaintiff had cooperated against a deputy who worked at the jail, and did not want to be housed there. Plaintiff also has evidence that Turner and other inmates suspected that Plaintiff was a snitch because he was housed in Orleans County even though he did not have charges pending against him in that county. Plaintiff even has evidence that Turner may have asked some jail employee or deputy whether Plaintiff was a snitch. However, the Court does not believe that these disparate facts, or the entire record, support a reasonable inference that French told Turner on July 31, 2007 that Plaintiff was a snitch in a federal drug investigation. 19
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