Opinion
04 Civ. 3174 (KMW) (RLE).
September 1, 2006
OPINION AND ORDER
I. INTRODUCTION
Pro se plaintiff, Elizabeth Thomas, brings this action against more than twenty defendants for alleged civil rights violations under 42 U.S.C. § 1983. Pending before the Court is Thomas's application 1) to serve a defendant with process; 2) to amend the Amended Complaint; and 3) for an order directing defendants to produce an affidavit concerning discovery records from the New York State Department of Corrections ("DOCS"). For the reasons which follow, Thomas's application is GRANTED, in part, and DENIED, in part.
II. DISCUSSION
1. Service of Process
Thomas seeks leave to serve defendant Irma N. Ortiz with process. Since this request is unopposed, and because Thomas named Ortiz as a defendant in the original complaint, this request is GRANTED. Thomas shall serve Ortiz by September 18, 2006.
2. Amendment to the Amended Complaint
According to the complaint, Thomas's claims against "John Doe" are based on his alleged denial of her request to downgrade to a medium security status on or about March 2001. Complaint ("Compl.") at ¶¶ 64-71. Thomas seeks to substitute a named party, the Senior Counselor Gishman of Bedford Hills Correctional Facility, for the "John Doe" defendant. Defendants oppose this application arguing that the substitution would constitute a futile amendment to the complaint because the statute of limitations has elapsed.
Section 1983 does not set forth a statute of limitations. Owens v. Okure, 488 U.S. 235, 239 (1989). In the Second Circuit, federal courts apply the statute of limitations applicable to personal injury actions under New York State law. Pearl v. City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). Under New York State law, Thomas has a three year from the time the cause of action accrues to file a complaint. New York State Civil Procedure Law Rules § 214(5). The statute of limitation elapsed in March 2004.
Moreover, "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." Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999) (internal quotations and citation omitted); Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993). Defendants argue that Thomas referred to Gishman in the complaint, but failed to name him as a defendant. Compl. at ¶ 67. Thomas's application to now name Gishman as a defendant and to charge him with liability is untimely. Moreover, it is unclear whether Gishman may replace the "John Doe" defendant because the complaint indicates that the "John Doe" defendant was a member of the DOCS Central Office, while Gishman is a counselor at the Bedford Hills Correctional Facility. Compare Compl. at ¶ 70 with Compl. at ¶ 67. Thomas's application for leave to substitute the John Doe defendant with a named party is hereby DENIED.
3. Affidavit Concerning Discovery Records
Thomas requests the entire personnel file of each defendant in discovery. After conferring with defendants, Thomas narrowed her discovery request to include only records responsive to Local Rule 33.2 concerning personnel-related disciplinary actions against defendants. Defendants maintain that records responsive to Local Rule 33.2 do not exist. Thomas asks the Court to direct defendants to produce a sworn affirmation setting forth that these records do not exist. This application is GRANTED. Defendants shall produce an affidavit setting forth that discovery records responsive to Local Rule 33.2 do not exist, and identify with specificity their search for these records.
III. CONCLUSION
For the foregoing reasons, Thomas's applications are GRANTED, in part, and DENIED, in part.
SO ORDERED.