Opinion
6:13-CV-6461 EAW
09-13-2019
Jessie ENGLES, Plaintiff, v. Sgt. Jerry JONES, et al., Defendants.
Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiff. Bernard F. Sheehan, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
Donald W. O'Brien, Jr., Woods Oviatt Gilman LLP, Rochester, NY, for Plaintiff.
Bernard F. Sheehan, NYS Attorney General's Office Department of Law, Rochester, NY, for Defendant.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge
INTRODUCTION
Plaintiff Jessie Engles ("Plaintiff") commenced the instant action on August 16, 2013. (Dkt. 1). The operative pleading is the Third Amended Complaint (Dkt. 102), which asserts various claims under 42 U.S.C. § 1983 related to Plaintiff's incarceration at the Five Points Correctional Facility ("Five Points"). The Third Amended Complaint was filed pursuant to order of the Court following disposition of Defendants' motion for partial summary judgment. (Dkt. 101).
Plaintiff now moves for leave to file a Fourth Amended Complaint. (Dkt. 111). Plaintiff seeks to add Corrections Officer C. Bencal ("C.O. Bencal") as a party defendant and to assert an excessive use of force claim against her. (See Dkt. 111-1). Plaintiff further seeks to delete his due process claim, which he inadvertently retained in the Third Amended Complaint notwithstanding the Court having previously granted summary judgment in favor of Defendants on that claim. (See id. ).
For the reasons discussed below, the Court denies in part and grants in part Plaintiff's motion for leave to amend. In particular, Plaintiff is granted leave to remove his due process claim, but he may not add C.O. Bencal as a party defendant.
BACKGROUND
I. Factual Background
The factual background underlying this matter is set forth in detail in the Court's Decision and Order on Defendants' motion for partial summary judgment, entered on December 28, 2018. (Dkt. 101). The Court briefly summarizes only the facts that are relevant to the instant motion.
On August 16, 2010, while incarcerated at Five Points, Plaintiff claims he told defendant C.O. Harrison that if he was not provided with a pair of headphones, he was going to "wind up cutting up." (Id. at 3). Plaintiff allegedly later reiterated to defendant Sgt. Jones that he was "losing it" and that he was going to hurt himself if he was not given headphones. (Id. at 3-4). Plaintiff further claims to have repeated these warnings to non-defendant Lieutenant Lavack. (Id. at 4). Notwithstanding these repeated threats of self-harm, Plaintiff claims that C.O. Harrison came to Plaintiff's cell with the "shower cart" and gave Plaintiff a razor and a nail clipper. (Id. ). Plaintiff clipped the safety guard off the razor and used it to cut his wrist. (Id. ).
Plaintiff was transported for treatment of his wounds, and claims that while he was on the stretcher during transport and in the infirmary, defendants C.O. Cavalussi, C.O. Hardy, C.O. Farly, C.O. Parish, and C.O. Hill participated in an assault upon him. (Id. ). Plaintiff has further alleged that defendants Sgt. Morton and Sgt. Jones were present during the assault and failed to intervene. (Id. ).
Plaintiff testified at his deposition that C.O. Bencal (whom he referred to as "Banko") was present during portions of the assault that occurred in the infirmary, and he further stated the assault was motivated in part by C.O. Bencal having falsely claimed that Plaintiff spit on her. (See Dkt. 115-1 at 15-16). Plaintiff testified that C.O. Bencal watched the assault with "satisfaction" and that he asked her to please tell the other officers that he had not spit on her, but that she lied and said he had. (Id. at 22-23). It was immediately after this alleged comment from C.O. Bencal that Plaintiff claims defendant C.O. Hill deliberately broke his hand. (Id. at 23-24). However, prior to filing the instant motion, Plaintiff has never asserted or attempted to assert a claim against C.O. Bencal.
On August 24, 2010, C.O. Bencal submitted a memorandum to a "Capt. Piccolo," stating that "[a]t no time did I assault or observe anyone assault inmate Engles on 08/6/10." (Dkt. 111-1 at 8). There is no evidence in the record before the Court that Plaintiff ever saw this memorandum or was aware of it prior to its production in this litigation.
After having been transported to outside facilities for medical treatment, Plaintiff was returned to Five Points and was charged with various rules violations related to the events of August 16, 2010. (Dkt. 101 at 6). A disciplinary hearing was conducted regarding these charges. (Id. ). During the course of the disciplinary hearing, on December 30, 2010, Plaintiff was given the opportunity to question nurse Norma Leone ("Nurse Leone"), who was involved in Plaintiff's care on August 16, 2010. (Dkt. 115-1 at 40). Plaintiff asked Nurse Leone if she saw anyone assault him during the incident, and she replied that she had seen someone punch Plaintiff in the back while he was on the stretcher in the infirmary. (Id. at 42). Plaintiff did not ask any follow up questions regarding the punching that Nurse Leone said she had witnessed, and in particular did not ask Nurse Leone who she had seen punch him. (Id. ).
On December 31, 2010, in connection with the Inspector General's Office's investigation into the use of force against Plaintiff, Nurse Leone gave a statement in which she reported that on August 16, 2010, she witnessed C.O. Bencal punching Plaintiff in the infirmary. (See Dkt. 119-3). Nurse Leone further indicated that C.O. Bencal had not caused any injury to Plaintiff and that Nurse Leone did not know if Plaintiff "even realized that he was punched." (Id. ). A copy of this statement was produced to Plaintiff in connection with this litigation in March 2017. (Id. at 3). Nurse Leone was deposed on August 30, 2017, and confirmed that she had witnessed C.O. Bencal striking Plaintiff in the infirmary on August 16, 2010. (Dkt. 111-1 at 20-22).
II. Procedural Background
Plaintiff, then proceeding pro se , commenced this action on August 16, 2013. (Dkt. 1). By leave of court, Plaintiff filed an Amended Complaint on June 17, 2014. (Dkt. 12). Defendants moved for dismissal or summary judgment as to the Amended Complaint (Dkt. 25; Dkt. 33); the Court granted in part and denied in part Defendants' motions on November 16, 2015, while also granting Plaintiff leave to file a second amended complaint as to certain claims (Dkt. 46).
Plaintiff initially commenced this action in the United States District Court for the Northern District of New York; the matter was transferred to this Court pursuant to 28 U.S.C. § 1406(a) on August 29, 2013. (Dkt. 6).
On January 11, 2016, the Court appointed counsel to represent Plaintiff. (Dkt. 57). Through counsel, Plaintiff filed the Second Amended Complaint on February 25, 2016. (Dkt. 60). The Second Amended Complaint contained the following causes of action: (1) excessive use of force and failure to intervene as to defendants Morton, Hill, Farly, Hardy, Parish, and Cavalussi; (2) "threats and intimidation" as to Sgt. Jones; (3) deliberate indifference/failure to provide proper medical care as to Nurse Sykes; (4) deprivation of Plaintiff's First Amendment right to practice his religion as to Sgt. Jones and various John Doe defendants; (5) denial of access to the Courts as to various John Doe defendants; and (6) denial of due process in connection with a disciplinary hearing as to A.C. Rasmus. (Id. at 10-13). None of the original, First Amended, or Second Amended Complaints included any claims against C.O. Bencal.
The Court referred the matter to United States Magistrate Judge Jonathan W. Feldman for supervision of all non-dispositive pretrial matters. (Dkt. 71; Dkt. 72). On May 11, 2016, Judge Feldman issued a Case Management Order setting a deadline of November 18, 2016, for motions to join parties or amend the pleadings. (Dkt. 76). Discovery in this matter is closed. (See Dkt. 85).
On May 16, 2018, Defendant filed a motion for partial summary judgment. (Dkt. 88). The Court issued a Decision and Order granting Defendants' partial summary judgment in part and denying it in part on December 28, 2018. (Dkt. 101). The Court further construed the motion as a request to amend Plaintiff's pleadings to assert a deliberate indifference claim against C.O. Harrison, and granted that request. (Id. ). Pursuant to the Court's order, Plaintiff filed the Third Amended Complaint on January 11, 2019. (Dkt. 102). Despite the Court having granted summary judgment to Defendants on Plaintiff's due process claim, Plaintiff inadvertently retained that claim in his Third Amended Complaint. (Id. ).
On January 31, 2019, Plaintiff's counsel emailed Defendants' counsel a proposed Fourth Amended Complaint adding C.O. Bencal as a party defendant. (Dkt. 111-1 at 3-4). Defendants' counsel replied on February 3, 2019, that he could not consent to the filing of the Fourth Amended Complaint, based on the statute of limitations and the failure to exhaust administrative remedies. (Id. at 4). Defendants' counsel further pointed out that the Third Amended Complaint had retained the due process claim. (Id. ).
On February 13, 2019, Plaintiff filed the instant motion for leave to amend, seeking to add an excessive use of force claim as to C.O. Bencal and to delete the due process claim. (Dkt. 111). Defendants filed responsive papers on March 7, 2019 (Dkt. 115), and Plaintiff filed a reply on March 14, 2019 (Dkt. 116). DISCUSSION
I. Standard of Review
"A district court has broad discretion in determining whether to grant leave to amend[.]" Gurary v. Winehouse , 235 F.3d 792, 801 (2d Cir. 2000). Two provisions of the Federal Rules of Civil Procedure guide the Court's analysis of a motion for leave to amend where the deadline for such motions, as set forth in a scheduling order, has expired. The first is Rule 15(a)(2), which provides that once the time for leave to amend as of right has expired, "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). The second is Rule 16(b)(4), which provides that a "schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4). "Where, as here, a scheduling order governs amendments to the complaint, ... the lenient standard under Rule 15(a), which provides leave to amend shall be freely given, must be balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified except upon a showing of good cause." Holmes v. Grubman , 568 F.3d 329, 334-35 (2d Cir. 2009) (quotations and citations omitted).
"In determining whether a movant has satisfied the ‘good cause’ standard under Rule 16(b), ‘the primary consideration is whether the moving party can demonstrate diligence.’ " Charter Commc'ns, Inc. v. Local Union No. 3, Int'l Bhd. of Elec. Workers, AFL-CIO , 338 F. Supp. 3d 242, 254 (S.D.N.Y. 2018) (quoting Kassner v. 2nd Avenue Delicatessen Inc. , 496 F.3d 229, 244 (2d Cir. 2007) ). However, diligence is "not ... the only consideration. The district court, in the exercise of its discretion under Rule 16(b), also may consider other relevant factors including, in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants." Kassner , 496 F.3d at 244.
Additionally, the Court should consider whether the proposed amendments are futile. See Ruffolo v. Oppenheimer & Co. , 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive ... it is not an abuse of discretion to deny leave to amend."). The Court may deny a motion for leave to amend as futile where the proposed amended claims are time-barred. See 421-A Tenants Ass'n, Inc. v. 125 Court St. LLC , 760 F. App'x 44, 51 (2d Cir. 2019) (affirming denial of motion for leave to amend where proposed amendments did not change the fact that claims were barred by the statute of limitations); Sokolski v. Trans Union Corp. , 178 F.R.D. 393, 397 (E.D.N.Y. 1998) ("A motion to amend the complaint may be considered futile if the claims sought to be added are barred by the relevant statute of limitations.").
"Although courts generally examine the futility of an amendment under the Federal Rule of Civil Procedure 12(b)(6) standard," where, as in this case, a motion for leave to amend is filed "after the close of discovery and after decision on summary judgment," the Court may apply the standard applicable on a motion for summary judgment. Morritt v. Stryker Corp. , 973 F. Supp. 2d 177, 193 (E.D.N.Y. 2013) ; Summit Health Inc. v. APS Healthcare Bethesda, Inc. , 993 F. Supp. 2d 379, 403 (S.D.N.Y. 2014) ("Ordinarily, leave to amend may be denied on the basis of futility if the proposed claim would not withstand a Rule 12(b)(6) motion to dismiss. However, when the motion to amend is filed after the close of discovery and the relevant evidence is before the court, a summary judgment standard will be applied instead." (citation omitted)), aff'd sub nom. APEX Employee Wellness Servs., Inc. v. APS Healthcare Bethesda, Inc. , 725 F. App'x 4 (2d Cir. 2018). Here, discovery has closed, a motion for summary judgment has already been decided, and both parties have submitted and relied upon materials outside the pleadings in connection with the motion for leave to amend. The Court therefore finds it appropriate to apply the Rule 56(c) standard in assessing the adequacy of Plaintiff's proposed new claim.
II. Plaintiff's Request to Add C.O. Bencal as a Party Defendant
Plaintiff seeks to add C.O. Bencal as a party defendant and assert an excessive use of force claim against her based on her allegedly punching him in the infirmary on August 16, 2010. (See Dkt. 111-1). Defendants make the following arguments in opposition to this request: (1) Plaintiff's delay of nearly two years between learning of Nurse Leone's statement and seeking to assert a claim against C.O. Bencal is unexplained and prejudicial; and (2) Plaintiff's proposed amendment to add C.O. Bencal as a party defendant is futile, both because the claim is time-barred and because Plaintiff failed to exhaust his administrative remedies. (Dkt. 115). Plaintiff contends that his claims are not time-barred, because the statute of limitations was equitably tolled. (Dkt. 111-2 at 4-6). Plaintiff further argues that equitable tolling further excuses any failure to exhaust his administrative remedies, and that, in any event, while C.O. Bencal was not specifically named in the grievance filed by Plaintiff, that grievance contained sufficient information to satisfy the exhaustion requirement. (Dkt. 111-1 at 6-7; Dkt. 116 at 6). Finally, Plaintiff argues that no prejudice will result to C.O. Bencal as a result of the approximately two-year delay in seeking amendment after Plaintiff learned of Nurse Leone's statement, and that, "[i]f there has been any lack of diligence in seeking an amendment of the Complaint to add C.O. Bencal as a party defendant, blame can be placed at the feet of counsel, rather than the Plaintiff himself." (Dkt. 116 at 4-7). Plaintiff further argues that a "sanction short of denial of the motion" would be sufficient to remedy any prejudice, and Plaintiff's counsel states that he is "is amenable to the award of counsel fees for any transgression rather than the denial of what would otherwise have been a deserving motion to amend upon good cause showing but for the delay in bringing the motion following the discovery of C.O. Bencal's complicity." (Id. at 6).
For the reasons that follow, the Court agrees with Defendants that Plaintiff's proposed claim against C.O. Bencal is time-barred on its face, and that Plaintiff has not pleaded facts sufficient to warrant the application of equitable tolling. The Court further finds that Plaintiff has failed to establish good cause for the delay in seeking leave to amend after disclosure of Nurse Leone's statement in March of 2017.
Plaintiff has not argued that his proposed amendments relate back to the filing of the original Complaint pursuant to Federal Rule of Civil Procedure 15(c), nor does it appear that he could successfully make such an argument, because there is no evidence before the Court that C.O. Bencal was put on notice of this action during "the period provided by Rule 4(m) for serving the summons and complaint[.]" Fed. R. Civ. P. 15(c)(1)(C) ; see also Joseph v. Bute , No. 16CV2004PKCLB, 2019 WL 181302, at *4 (E.D.N.Y. Jan. 9, 2019) (explaining that "an amended complaint which adds a new party... will be deemed to relate back to the date of the original pleading" only if the new party received notice of the proceeding within 90 days of filing of the original complaint).
A. Plaintiff's Claim Against C.O. Bencal is Time-Barred
"For § 1983 actions arising in New York, the statute of limitations is three years." Eagleston v. Guido , 41 F.3d 865, 871 (2d Cir. 1994). "Federal law determines when a section 1983 cause of action accrues, and [the Second Circuit has] ruled that accrual occurs when the plaintiff knows or has reason to know of the injury which is the basis of his action." Pearl v. City of Long Beach , 296 F.3d 76, 80 (2d Cir. 2002) (citations and quotations omitted); see also Levy v. BASF Metals Ltd. , 917 F.3d 106, 108 (2d Cir. 2019) (explaining that, in determining when a claim accrues, the "relevant inquiry" is not whether a party has "discovered the identity of the defendants," but rather whether the party is aware of the injury). In this case, accepting Plaintiff's allegations as true, he knew he had been injured in the infirmary on August 16, 2010, when the assault allegedly occurred. No party has advocated for any other accrual date for Plaintiff's claim against C.O. Bencal.
Indeed, parties are allowed to assert claims against John and Jane Doe defendants precisely because they may know that they have been injured without being certain of the identity of the perpetrator.
Accordingly, on its face, Plaintiff's proposed excessive use of force claim against C.O. Bencal is barred by the three-year statute of limitations, inasmuch as it was not commenced on or before August 16, 2013. Plaintiff contends that the claim is nonetheless timely, because "the statute of limitations was equitably tolled as a result of C.O. Bencal's written denial that she assaulted the Plaintiff on August 16, 2010." (Dkt. 111-2 at 4).
"With respect to equitable tolling in Section 1983 actions, it is well-settled that federal courts should borrow the forum state's tolling rules. As the Second Circuit has explained, New York courts have adopted the same equitable tolling doctrine that exists under federal law." Ellis v. Wilkinson , 81 F. Supp. 3d 229, 235 (E.D.N.Y. 2015) (citations omitted). "Equitable tolling permits a plaintiff to avoid the bar of the statute of limitations if despite all due diligence he is unable to obtain vital information bearing on the existence of his claim." Valdez ex rel. Donely v. United States , 518 F.3d 173, 182 (2d Cir. 2008). "A litigant seeking equitable tolling bears the burden of establishing two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way." Victorial v. Burge , 477 F. Supp. 2d 652, 654 (S.D.N.Y. 2007) (quotation omitted); see also Boos v. Runyon , 201 F.3d 178, 185 (2d Cir. 2000) ("The burden of demonstrating the appropriateness of equitable tolling ... lies with the plaintiff.").
One circumstance that may justify equitable tolling is concealment of critical facts by a defendant. See Koch v. Christie's Intern. PLC , 699 F.3d 141, 157 (2d Cir. 2012) ; see also Veltri v. Bldg. Serv. 32B-J Pension Fund , 393 F.3d 318, 323 (2d Cir. 2004) ("Where defendant is responsible for concealing the existence of plaintiff's cause of action, this Court has held equitable tolling appropriate."). The Second Circuit has explained:
Where a plaintiff seeks to equitably toll a statute of limitations on the basis of fraudulent concealment, the plaintiff must establish that (1) the defendant wrongfully concealed material facts relating to defendant's wrongdoing; (2) the concealment prevented plaintiff's discovery of the nature of the claim within the limitations period; and (3) plaintiff exercised due diligence in pursuing the discovery of the claim during the period plaintiff seeks to have tolled.
Id. (quotations omitted).
In this case, even assessing the record in the light most favorable to Plaintiff, Plaintiff cannot satisfy his burden of demonstrating that the statute of limitations should be tolled. Accepting as true the assertion that C.O. Bencal struck Plaintiff and that she lied about her actions in her August 2010 memorandum to Captain Piccolo, there is no evidence before the Court from which a reasonable jury could conclude that (1) C.O. Bencal's false statements to Captain Piccolo prevented Plaintiff from discovering the nature of his claim within the limitations period or (2) that Plaintiff exercised due diligence in pursuing the discovery of the claim during the period he seeks to have tolled.
With respect to the first point, "[r]easonable reliance on a defendant's misrepresentations is a required element for invoking equitable tolling." De Sole v. Knoedler Gallery, LLC , 137 F. Supp. 3d 387, 426 (S.D.N.Y. 2015) (rejecting equitable tolling argument where the plaintiff had "not alleged that he saw the [allegedly misleading] letter, however, much less that he relied on it"). Here, Plaintiff has not alleged that he was ever aware of C.O. Bencal's memorandum to Captain Piccolo prior to it being produced in connection with this lawsuit (after the limitations period had already run), nor has he alleged that he reasonably relied upon it. Indeed, the Court is hard-pressed to see how Plaintiff could have reasonably relied upon the memorandum in question, which is wholly in opposition to his version of events. In other words, Plaintiff cannot now claim that he reasonably accepted C.O. Bencal's statement that she had not assaulted Plaintiff or seen anyone assault him when his own testimony is that C.O. Bencal watched him being viciously attacked and refused to intervene.
Plaintiff makes a conclusory argument that C.O. Bencal's denial was "presumably ... evidence considered in rejecting the Plaintiff's grievance." (Dkt. 111-2 at 4). This argument is wholly speculative, particularly in light of the fact that C.O. Bencal was not named in Plaintiff's grievance. Moreover, Plaintiff has not explained how the denial of his grievance purportedly prevented him from discovering his claim against C.O. Bencal—Plaintiff was not (and indeed did not, inasmuch as he filed the instant lawsuit) required to accept the outcome of his grievance.
Turning to the second point, a party relying upon equitable tolling is "required to demonstrate that his ignorance is not attributable to a lack of diligence on his part." Netzer v. Continuity Graphic Assocs., Inc. , 963 F. Supp. 1308, 1316 (S.D.N.Y. 1997). No reasonable fact-finder could conclude, on the record before the Court, that Plaintiff exercised reasonable diligence regarding his claims against C.O. Bencal between August 2010 and March 2017, the period he seeks to have tolled. The Court notes initially that despite knowing that C.O. Bencal was allegedly involved in the assault (that is, having purportedly watched the attack and refused to intervene when Plaintiff asked her to do so), Plaintiff never at any point prior to filing the instant motion asserted a claim against her. Had he done so, discovery regarding C.O. Bencal's conduct on August 16, 2010, would have commenced well before March 2017.
For purposes of the instant motion, the Court accepts as true Plaintiff's allegation that he does not remember C.O. Bencal punching him due to his mental state at the time of the alleged assault.
Plaintiff has attempted to explain his failure to include C.O. Bencal as a defendant in this case by claiming that he "named only the corrections officers [he] recalled having assaulted [him]." (Dkt. 116-1 at ¶ 6). However, this assertion is inconsistent with the record of this case, which shows that in his original Complaint (and all subsequent Amended Complaints), Plaintiff alleged that defendants Sgt. Morton and Sgt. Jones witnessed the assault and failed to intervene to stop it. (See Dkt. 1 at 6). In other words, Plaintiff has pursued failure to intervene claims since the outset of this matter, and has proffered no reason why he did not assert such a claim against C.O. Bencal. Had he done so, he would have had access to the full panoply of discovery devices with respect to her actions.
Moreover, it is undisputed that at his disciplinary hearing in December 2010, Plaintiff was allowed to pose questions to Nurse Leone, and Nurse Leone stated that she had witnessed someone punching Plaintiff on August 16, 2010. Plaintiff has not offered any explanation for his failure to pose any follow up questions to Nurse Leone, including his failure to ask her who she witnessed striking him. Had Plaintiff taken this simple step in December 2010, he would have been aware of his claim against C.O. Bencal well within the limitations period.
Plaintiff has further provided no information regarding what, if anything, he did to investigate his claims between the date of the alleged assault and his commencement of this action in August 2013. On this record, Plaintiff cannot bear his burden of establishing that he acted with due diligence.
For all these reasons, the Court concludes that Plaintiff's proposed excessive use of force claim against C.O. Bencal is barred by the applicable statute of limitations, and that amendment to add this claim would therefore be futile. The Court denies Plaintiff's motion for leave to amend with respect to his request to add C.O. Bencal as a party defendant.
Having reached this conclusion, the Court need not and does not reach Defendants' further argument that Plaintiff failed to exhaust his administrative remedies as to this claim.
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B. Plaintiff has not Shown Good Cause
In addition to finding that Plaintiff's proposed claim against C.O. Bencal is time-barred, the Court further finds that Plaintiff has failed to demonstrate good cause to modify the Case Management Order and allow a late request to add a party, and that this further supports the denial of his motion.
"[T]o show good cause, a movant must demonstrate that it has been diligent." Perfect Pearl Co. v. Majestic Pearl & Stone, Inc. , 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012). Plaintiff cannot meet this standard here. First, as discussed above, Plaintiff cannot show that he exercised reasonable diligence in attempting to discover the facts related to C.O. Bencal's role in the alleged assault. See id. (explaining that the good cause standard is not met if "the proposed amendment rests on information that the party knew, or should have known, in advance of the deadline" (quotation omitted)).
Further, Plaintiff has offered no explanation for the approximately two-year delay between the production of Nurse Leone's statement and his request for leave to amend, apart from attorney oversight. "[A]ttorney neglect, carelessness, or oversight is not a sufficient basis for a court to amend a Scheduling Order pursuant to Rule 16(b)." Lamothe v. Town of Oyster Bay , No. 08-CV-2078 ADS AKT, 2011 WL 4974804, at *7 (E.D.N.Y. Oct. 19, 2011) (collecting cases).
The Court acknowledges Plaintiff's argument that no prejudice will result from granting his untimely motion for leave to amend. However, "the absence of prejudice alone does not constitute good cause under Rule 16." Gullo v. City of N.Y , 540 F. App'x 45, 47 (2d Cir. 2013) ; see also Smith v. Bradt , 329 F.R.D. 500, 505 (W.D.N.Y. 2019) (explaining a court cannot find "good cause" pursuant to Rule 16 solely because the non-moving party will not be prejudiced). As such, even accepting Plaintiff's contention that C.O. Bencal would not be prejudiced by being forced to defend against the proposed excessive use of force claim at this late juncture, the Court cannot find, on the record before it, that Rule 16's good cause requirement has been satisfied. This further supports the Court's conclusion that denial of Plaintiff's motion for leave to amend, as it relates to his proposed claim against C.O. Bencal, is warranted.
III. Plaintiff's Request to Delete his Due Process Claim
Plaintiff also seeks, in the proposed Fourth Amended Complaint, to delete his inadvertently retained due process claim. Defendants have made no argument in opposition to this aspect of Plaintiff's proposed amendment, and the Court finds that it will bring Plaintiff's pleadings into conformance with the Court's prior holdings. Moreover, Plaintiff has been diligent in seeking this amendment, having made his request shortly after it was brought to counsel's attention that the Third Amended Complaint had inadvertently retained the due process claim. Accordingly, the Court grants Plaintiff's request that he be permitted to amend solely with respect to his request to delete his due process claim.
CONCLUSION
For the foregoing reasons, the Court grants in part and denies in part Plaintiff's motion for leave to amend. (Dkt. 111). The Court denies the motion as to the request to add C.O. Bencal as a party defendant and to assert an excessive use of force claim against her. The Court grants the motion solely as to Plaintiff's request to delete the inadvertently retained due process claim. Plaintiff may file a Fourth Amended Complaint that comports with this Decision and Order by no later than September 27, 2019.
SO ORDERED.