Opinion
CV 04-3651 (JS) (ETB).
June 1, 2006
REPORT AND RECOMMENDATION
Before the Court is plaintiff's motion, pursuant to Federal Rule of Civil Procedure 15(a), to amend his complaint. Plaintiff does not seek to amend his complaint to include new causes of action. Rather, plaintiff seeks to add several individuals from the Suffolk County Attorney's Office and the Suffolk County Police Department to the action, in their individual and official capacities, while dropping the Suffolk County Police Department as a defendant. Plaintiff also seeks to amend his complaint to add the District Attorney of Suffolk County, to additionally sue exiting party defendants Christine Malafi and Richard Dormer in their individual capacities, to eliminate the claims for declarative and injunctive relief, and to increase the requested amount of monetary damages from $100,000 to $250,000. The motion is opposed the defendants. For the reasons explained herein, plaintiff's motion should be granted in part and denied in part.
BACKGROUND
Plaintiff, Stephen Sullivan (hereinafter "plaintiff" or "Sullivan"), commenced this action on August 24, 2004, alleging that the defendants deprived him of the rights, privileges, and immunities guaranteed by the Fourth, Eighth, and Fourteenth Amendments of the Constitution. (Pl.'s Compl. ¶ 1.) Plaintiff contends that on January 7, 2004, a member of the Suffolk County Police Department ("Police Department") stopped and arrested Carol Denicola ("Denicola"), plaintiff's ex-girlfriend, for operating a motor vehicle while intoxicated in violation of New York Vehicle Traffic Law § 1192(3). (Id. ¶ 19. See also New York Vehicle Traffic Law § 1192(3).) Pursuant to Section 270-26 of the Suffolk County Code, the Police Department seized the vehicle that Denicola was driving as an instrumentality of a crime. (Pl.'s Compl. ¶ 19.) Plaintiff is the owner of the seized vehicle, although the vehicle is registered in the name of Denicola. (Id. ¶ 3.) Plaintiff alleges that he was not a passenger in the vehicle when it was seized, and did not know about or consent to Denicola's operation of the vehicle. (Id. ¶¶ 12-17.) On January 20, 2004, Sullivan applied for the return of his vehicle pursuant to Suffolk County Code § 270-26.
Pursuant to the applicable provision of the Code in effect at the time of the seizure, the seizing agency was required to notify the registrant on file with the New York State Department of Motor Vehicles and "all titled owners" that "there is a right to a hearing to determine whether probable cause exists to believe that the property was used as an instrumentality of a crime. . . ." Suffolk County, N.Y., Code, § 270-26(B)(a) (as amended May 20, 2003). The Code directed the hearing officer to "review the documents supporting the arrest and any other relevant documents and take any testimony to determine whether there is probable cause. . . ." Id. The provision further stated that if "probable cause is established . . . the hearing officer shall authorize the continued retention of the property . . . pending a judicial determination of any civil forfeiture action. . . . Such ruling shall be subject to review pursuant to Article 78 of the New York Civil Practice Law Rules." Id. § 270-26(B)(b). The Code also provided that an action for forfeiture of the vehicle must be commenced within 120 days from the date of the seizure. Id. § 270-26(C).
Subsequent to the time period relevant to plaintiff's complaint, by resolution approved on May 3, 2004 and made effective May 17, 2004, Section 270-26 was amended to provide that after a seizure, a hearing will be promptly scheduled "before a neutral magistrate to determine whether probable cause existed for the defendant's warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County's interest during the proceeding. . . ." Suffolk County, N.Y., Code § 270-26 (as approved May 3, 2004).
On January 27, 2004, the plaintiff appeared at a post-seizure hearing before Suffolk County Police Department Hearing Officer John T. Hanley (hereinafter "Hanley"). (Pl.'s Compl. ¶¶ 23-24.) According to the certified hearing transcript, Hanley stated to Sullivan:
The purpose of this hearing is to determine if this automobile should be returned to the Petitioner, Stephen Sullivan, during the pendency of a civil forfeiture action that will be brought by the Claiming Authority.
It is my obligation to determine first, whether or not the Suffolk County Police Department had probable cause to arrest Carol DeNicolo and whether or not the Suffolk County Police Department had probable cause to seize a 1995 Nissan that she was operating at the time of the arrest.
The initial burden in this hearing will be borne by the County Attorney. The County Attorney will have to establish that one, there was probable cause to arrest Carol DeNicolo for driving while intoxicated on the date in question; two, that the County is likely to succeed on the merits of the forfeiture action; and three, that retention is necessary to preserve the vehicle from destruction or sale during the pendency of the proceeding.
The owner of the vehicle will have the opportunity, pursuant to Paragraphs E and H of Section 270-27 of the Suffolk County Code, of proving a lack of knowledge or lack of consent on behalf of said owner, sufficient to constitute defense to such forfeiture. All parties have the right to the assistance of counsel. Each side will be permitted to call witnesses on its own behalf.
* * * * *
You, Stephen Sullivan have the right through your attorney, to cross-examine any of the witnesses the County Attorney calls, to scrutinize and make comment about any of the documentary evidence that they make seek to offer and, in turn, you have the right to testify on your behalf. You may also be called as a witness because this is a civil proceeding. You can, in turn, call witnesses that you may want or offer any evidence, documents or records that you want to place into evidence.
(Transcript of January 27, 2004 Hearing ("Transcript"), at 7, referred to in Declaration of Christopher M. Gatto ("Gatto Decl."), Assistant County Attorney, as Document 30.)
The transcript of the hearing was submitted by defendants and referenced in defendants' counsel's affidavit. Plaintiff is undoubtedly familiar with the transcript, and has been on notice of its filing with the Court since July 15, 2005. The transcript may appropriately be considered on a motion to amend. See Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42 (2d Cir. 1991) (noting that in certain instances, where a defendant relies on public documents available to plaintiff that plaintiff chose not to attach to the complaint, and plaintiff has been put on notice of defendant's proffer of the documents, the court may review the extraneous documents because the risk that plaintiff may be surprised by the extraneous documents is minimized). See also,e.g., Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131-132 (2d Cir. 1993) (affirming district court's denial of motion to amend, noting that the record reviewed by the district court included affidavits and other documents attached to plaintiff's motion);State of New York v. Niagara Mohawk Power Corp., No. 02-CV-24S, 2003 WL 23356447, at *1 (W.D.N.Y. Dec. 31, 2003) (reviewing affidavits, exhibits, and memorandum of law from all parties in considering a motion to amend); Carter v. Artuz, 95 Civ. 2361, 95 Civ. 4785, 1998 WL 782022 (S.D.N.Y. November 6, 1998) (noting that in deciding a motion to amend, "the Court has considered plaintiff's motion papers with exhibits, the defendants' memorandum of law in opposition to the motion, and plaintiff's reply papers").
Lastly, the Court is authorized to take judicial notice of a sworn transcript with respect to the administrative hearing, even if it is not attached to the complaint or an affidavit. Thomas v. Westchester Cty Health Care Corp., 232 F. Supp. 2d 273, 276-77 (S.D.N.Y. 2002) (noting that the Court "may take judicial notice of the records of state administrative procedures, as these are public records") (citations omitted). See also Munno v. Town of Orangetown, 391 F. Supp. 2d 263, (S.D.N.Y. 2005) (same).
At the hearing, the Assistant County Attorney ("ACA") called a witness employed by the Suffolk County Police Department through whom the ACA introduced documents consisting of the arrest report, the felony complaint, the alcohol drug influence report, the refusal to submit to a chemical test report, and the N.Y.S. Criminal Justice Services Report showing a prior conviction of Denicola for driving-while-intoxicated on July 16, 2003, six months prior to her arrest which triggered the seizure of the 1995 Nissan. (Tr. at 7-11.) Sullivan declined the right to ask any questions of the witness. (Id. at 13.)
At the hearing, Sullivan testified that Denicola was his ex-girlfriend and the mother of his children. (Id.) He explained that, in 2003, when Denicola was "missing," he had filed an "unauthorized use of vehicle" report with respect to the vehicle Denicola was driving. (Id. at 13, 20.) Sullivan further testified that he knew about Denicola's substance abuse, alcohol, and mental health problems, and upon her return from missing status, he permitted her to keep the car provided that she registered the car in her name and insured it, which she did. (Id. at 13-14.) Sullivan testified that at the time of the arrest, Denicola was the registered owner of the vehicle, and plaintiff held title to it. (Id. at 15.) Sullivan was not living with Denicola at the time of her arrest and the seizure of the vehicle. (Id. at 16.) Sullivan, on cross-examination, acknowledged that he knew of the prior DWI arrest and Denicola's loss of her New York driver's license. (Id. at 18.) Sullivan stated that the 1995 Nissan was fully paid for and solely used by Denicola, and that he drove a 2002 Nissan. (Id.) During the hearing, Sullivan never requested that a subpoena issue for the testimony of the police officer that arrested Denicola, or for any other purpose. (See Tr.) Nor did Sullivan request that the vehicle be released upon the posting of a bond. (Id.)
On February 2, 2004, Captain Hanley denied plaintiff's application for return of the vehicle. (Pl.'s Compl ¶ 28.) However, on March 10, 2004, Sullivan was notified by letter that his vehicle would be released to him upon his execution of a release. (Declaration of Thomas J. Hillgardner, Plaintiff's Counsel ("Hillgardner Decl.") ¶ 12.) Sullivan never responded to the letter. (Gatto Decl. ¶ 8; Hillgardner Decl. ¶ 12.) Sullivan did not commence an Article 78 Proceeding. In late September 2004, plaintiff's vehicle was released to him. (Hillgardner Decl. ¶ 15; Gatto Decl. ¶ 10.)
Plaintiff filed his complaint on August 24, 2004, prior to recovery of his vehicle. (Pl.'s Compl.) In the original complaint, plaintiff contends that the defendants' actions constituted an unreasonable search and seizure, an excessive fine, and deprivation of property without due process of law, in violation of the Fourth, Eighth, and Fourteenth Amendments. (Pl.'s Compl. ¶ 34.) Specifically, plaintiff alleges that the defendants violated the law by, inter alia, failing to: (1) demonstrate a likelihood of success on the merits of the subsequent civil action or that the retention of the vehicle was necessary to preserve the vehicle from destruction, sale, or removal from the relevant jurisdiction; (2) commence a civil forfeiture action or proceeding within 120 days of the date of the seizure; and (3) assign a neutral magistrate to oversee the post-seizure deprivation hearing. (Id. ¶¶ 30-37.) In his original complaint, plaintiff sought declaratory relief, money damages in the amount of $100,000, and reasonable attorney's fees. (Id. at 10-11.)
An initial conference was held before the undersigned on December 3, 2004, at which time discovery was scheduled to be completed by February 28, 2005. (Order by the undersigned, dated December 3, 2004.) By order dated April 7, 2005, discovery was extended at defendants' request to June 30, 2005, with "no further extensions." (Order by the undersigned, dated April 7, 2005.) On June 22, 2005, plaintiff's counsel received copies of a videotape of training sessions conducted by certain of the newly proposed defendants on March 3, 2003, which involved training hearing officers on how to hear and determine applications by owners seeking the return of vehicles seized pursuant to the Suffolk County Misdemeanor DWI Vehicle Forfeiture Law. Plaintiff provided copies of the tapes to the Court on July 13, 2005, and by letter dated July 25, 2005, requested a pre-motion conference for purposes of amending the complaint based on the content of the tapes. Following a pre-motion conference, plaintiff submitted his motion to amend and a proposed amended complaint on December 12, 2005. By order dated February 8, 2006, Judge Seybert referred the matter to the undersigned for determination. (Order by Judge Seybert, dated February 8, 2006.)
In his proposed amended complaint, plaintiff does not articulate any new causes of action. Plaintiff's proposed amended complaint does include several pages of newly alleged facts concerning the history of Suffolk County's DWI seizure and forfeiture program. Specifically, plaintiff alleges that the vehicles seized, stored, and sometimes forfeited under the County's DWI Seizure law generated significant proceeds for the County, and that when the program was being revised, defendants took advantage of the revision period to institute unconstitutional procedures. (Pl.'s Proposed Am. Compl. at 7-10.) Plaintiff's allegations stem from the Second Circuit Court of Appeals decision in Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), which set forth the standards by which post-seizure hearings must be conducted. After Krimstock, the New York Court of Appeals reviewed Nassau County's civil forfeiture statute in County of Nassau v. Canavan, and concluded therein that "due process requires that a prompt post-seizure retention hearing before a neutral magistrate be afforded, with adequate notice, to all defendants whose cars are seized and held for possible forfeiture." Canavan, 802 N.E.2d 616, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (N.Y. 2003). By resolution approved on May 3, 2004 and made effective May 17, 2004, Suffolk County legislators amended Section 270-26 of the Code to conform with the Canavan holding and include the requirement that post-seizure hearings be conducted before a neutral magistrate. Plaintiff alleges that, in the interim between the Krimstock andCanavan decisions and the amendment of the Suffolk County Code, the county attorney defendants and the police department defendants coordinated a system whereby members of the Suffolk County Police Department were trained to conduct post-deprivation hearings in such a manner so as to violate the claimants' due process rights. (Pl.'s Proposed Am. Compl. at 7-10.)
Although defendants suggest that plaintiff seeks to amend his complaint to add a conspiracy cause of action, plaintiff denies as much in his reply memorandum: "Plaintiffs [sic] do not allege conspiracy and need not prove a conspiracy. Plaintiff pleads that each of the defendants had a hand in the direct deprivation of plaintiff's car where they knew that the wrongful retention of some person's car must have been the inevitable result of the training they provided." (Memorandum of Law in Reply to Defendants' Opposition to Plaintiff's Motion for Leave to Amend the Complaint ("Pl.'s Reply Mem."), at 2 n. 2.)
Specifically, plaintiff alleges that four of the newly proposed defendants in particular were responsible for developing and drafting the procedures by which police officers would be appointed as hearing officers at post-seizure hearings. Sullivan's amended complaint alleges that supervisory defendants Gallagher (former Commissioner of the Suffolk County Police Department), and Robilotto (Chief of the Department of the Suffolk County Police Department), "drafted proposed new rules and procedures for the implementation of the plan to have members of the Suffolk County Police Department sit in judgment at hearings of claimants . . .," agreed to permit police captains to oversee the hearings, and informed police captains of this new responsibility. (Pl.'s Proposed Am. Compl. ¶¶ 35-37; see generally Pl.'s Proposed Am. Compl. at 8-10.) In paragraphs 30 through 40 of the proposed amended complaint, plaintiff alleges that proposed defendant Cimino (former Suffolk County Attorney) along with defendant Pack (Assistant County Attorney), helped devise the plan to have police officers conduct the post-deprivation hearings (Pl.'s Proposed Am. Compl. ¶¶ 31-32), and pitched the idea to the police department defendants (id. ¶¶ 33-34, ¶ 36, ¶ 40). Finally, in paragraphs 38, 40, and 81-84 of the proposed amended complaint, plaintiff alleges generally that in late February or early March 2003, proposed defendant Spota (Suffolk County District Attorney) "became involved in the plan to have police captains sit in judgment at hearings of claimants" and "proceeded with the plan to have [police officers] sit in judgment at said hearings in reckless disregard and with callous indifference to the due process rights of claimants. . . ." (Pl.'s Proposed Am. Compl. ¶ 38, ¶ 40.)
According to plaintiff's proposed amended complaint, proposed new defendants Pack (Assistant County Attorney), Kearon (District Attorney Division Chief), and Armet (County Police Department Legal Bureau Director) were responsible for developing the procedures for the hearings and the training for the captains. (Id. at ¶ 38.) Plaintiff further contends that Pack, Kearon and Armet conducted a training session on March 6, 2003, which included instructions that, if followed, might violate a claimants' due process rights. (Id. ¶ 39.) Specifically, plaintiff alleges that defendants Kearon, Pack, Armet, along with unknown individuals, trained the police captains to, inter alia: (1) believe that the County only needed to demonstrate probable cause for the arrest to prevail, rather than demonstrate that the County was likely to succeed on the merits of the civil forfeiture action or that retention of the vehicle was necessary to preserve the vehicle from destruction, sale or removal from the court's jurisdiction (Pl.'s Proposed Am. Compl. ¶¶ 64-65; Compl. ¶¶ 25-26); (2) deny a claimant his right to examine and/or cross-examine the arresting officer (Pl.'s Proposed Am. Compl ¶ 41); (2) deny a pro se claimant's request for a subpoena (id. ¶ 42); (3) deny a claimant's request for an adjournment if made for the first time at the hearing (id. ¶ 47); and (5) deny an "innocent owner" defense if claimant lived with the arrestee, did not file a stolen vehicle report, and knew the operator had a prior DWI conviction (id. ¶ 44). Several of these allegations are also included in plaintiff's original complaint, although in the original complaint the conduct is not ascribed to any individual defendant other than Captain Hanley, who oversaw plaintiff's hearing. (See Pl.'s Proposed Am. Compl. at 6-9.) All of plaintiff's newly-stated allegations, as set forth in the proposed amended complaint, concern the procedure by which post-deprivation hearings in Suffolk County were conducted. The allegations concerning the events leading up to the hearing, i.e., the arrest of Denicola and the seizure of plaintiff's vehicle, are not unique to plaintiff's proposed amended complaint and accordingly, will not be addressed herein.
Defendants oppose plaintiff's motion to amend, and argue that plaintiff has not alleged any facts to justify amendment at this late juncture, and that granting the motion at this stage of the litigation would unduly prejudice the defendants. (Defs.' Mem. of Law in Opp'n to Pl.'s Mot. to Amend the Compl. ("Defs.' Mem. in Opp'n"), at 2.) Defendants also argue that the proposed amendments should be denied because they are futile. (Id.)
DISCUSSION
I. Legal Standard: Motion to Amend
A. Federal Rule of Civil Procedure 15(a)
Pursuant to Federal Rule of Civil Procedure 15(a), leave to amend "shall be freely granted when justice so requires." Rule 15(a), Fed.R.Civ.P. "[A] court must accept the allegations contained in the [proposed amended] complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (citations omitted). The issue is whether the plaintiff is entitled to offer evidence in support of his claims, not whether the plaintiff will prevail in the action. Weisman v. LeLandais, 532 F.2d 308, 311 (2d Cir. 1976) (per curiam) ("Indeed, it may appear on the face of the pleading that a recovery is very remote and unlikely but that is not the test.") (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974)).
Amendment is generally permitted in the absence of a showing by the nonmovant of prejudice or bad faith. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d. Cir. 1993). In determining what constitutes "prejudice," the court should consider "whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepared for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Id. (citations omitted). The Second Circuit has further noted that "[o]ne of the most important considerations in determining whether amendment would be prejudicial is the degree to which it would delay the final disposition of the action." Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998), cert. denied, 525 U.S. 1041, 119 S. Ct. 592, 142 L. Ed. 2d 534 (1998) (citations omitted). While mere delay itself does not warrant denial of leave to amend, delay accompanied by bad faith or undue prejudice is a sufficient basis for such denial. Block, 988 F.2d at 350 (citing State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981)). The "longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice." Block, 988 F.2d at 350.
In addition, amendment of a claim is impermissible when the amendment will be futile. John Hancock Mutual Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citingFoman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962)). An amendment is futile when "it is beyond doubt that the plaintiff can prove no set of facts in support of his amended claims," Pangburn v. Culbertson, 200 F.3d 65, 70-71 (2d Cir. 1999) (internal quotation marks and citations omitted), or the proposed amended complaint fails to state a claim upon which relief can be granted. See Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). As a result, "[d]eterminations of futility are [generally] made under the same standards that govern Rule 12(b)(6) motions to dismiss." See Nettis v. Levitt, 241 F.3d 186, 194 n. 4 (2d Cir. 2001) (citing Ricciuti, 941 F.2d at 123). Thus, "[i]n evaluating futility, all well-pleaded allegations are accepted as true, and all inferences are drawn in favor of the pleader." Horvath v. Daniel, No. 04 CIV 9207, 2006 WL 950404, at * 1 (S.D.N.Y. April 7, 2006) (citing Savitsky v. Mazzella, No. 98 Civ. 9051, 2004 WL 2454120, at *3 (S.D.N.Y. Nov.1, 2004); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993)). "If there is no set of facts that, if proved, would constitute a valid and sufficient claim as amended, the court should deny leave to amend." Posr v. N.Y. State Court Officer, No. 96 CV 5200, 2006 WL 656985, at *19 (E.D.N.Y. March 13, 2006).
B. Federal Rule of Civil Procedure 21
When a plaintiff seeks to amend a complaint to name additional defendants, Federal Rule of Civil Procedure 21 is implicated in addition to Federal Rule of Civil Procedure 15. Rafter v. Fleet Boston Financial Corp., No. 04 CIV 3341, 2006 WL 1071753, at *2 (S.D.N.Y. April 20, 2006). Rule 21 provides that "[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just." Rule 21, Fed.R.Civ.P. The standard that governs amendment under Rule 15 also applies to the addition and elimination of parties under Rule 21. Rafter, 2006 WL 1071753, at *2 (citing FTD Corp. v. Banker's Trust Co., 954 F. Supp. 106, 109 (S.D.N.Y. 1997)).
II. The Proposed Supervisory Defendants: Commissioner Gallagher, Chief Robilotto, County Attorney Cimino, and Suffolk County District Attorney Spota
Plaintiff seeks to amend his complaint to include Gallagher, Robilotto, Cimino, and Spota because they all allegedly has some involvement in devising and/or implementing the procedures by which police officers were assigned as hearing officers for post-deprivation hearings. Defendants argue that granting plaintiff's leave to amend would result in delay and undue prejudice to the defendants.
A court should evaluate a number of factors in determining whether a proposed amendment will result in undue prejudice to the opposing parties. These factors include: (1) the reasons for the delay in seeking the amendment; (2) whether plaintiff could have asserted the new claims at the time plaintiff filed the original complaint; (3) whether the opposing parties would be required to expend significant additional resources to conduct discovery, and whether discovery has already been completed; (4) the degree to which amendment would delay the final disposition of the action; and (5) the impact of granting leave on judicial economy. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993); Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998), cert. denied, 525 U.S. 10411, 119 S. Ct. 592, 142 L. Ed. 2d 534 (1998); In re "Agent Orange" Product Liability Litig., 220 F.R.D. 22, 25 (E.D.N.Y. 2004); Kanyi v. United States, No. 99 CV 5851, 2002 WL 1471648, at * 2 (E.D.N.Y. May 3, 2002). Here, upon consideration of these factors I recommend that plaintiff's motion be denied, for the reasons stated below.
Consideration of the first factor — the reason for delay in seeking the amendment — does not weigh in favor of or against either party, based on the circumstances presented here.
The second factor which the court considers is whether plaintiff could have asserted the new claims at the time plaintiff filed the original complaint. Plaintiff argues that he could not have included the proposed new defendants in the original complaint because, at the time the original complaint was filed, the plaintiff was not aware of the training video which underlies plaintiff's new allegations. However, none of the newly proposed supervisory defendants appear in the training video. Moreover, from the outset, plaintiff has alleged that it was the policy of "Suffolk County, the SCPD, the SCPD Commissioner, and Captain Hanley . . . to provide a post-deprivation hearing . . . before the SCPD Commissioner or his designee." (Pl.'s Compl. ¶ 30.) Despite the presence of this allegation in plaintiff's original complaint (an allegation which is also at the core of his proposed amended complaint), plaintiff elected not to name as defendants in his original complaint Mr. Gallagher or Mr. Robilotto, newly proposed defendants from the Suffolk County Police Department. Similarly, plaintiff named Ms. Malafi, the current Suffolk County Attorney, in his original complaint, but only now seeks to add as defendants former Suffolk County Attorney Mr. Cimino, as well as Suffolk County District Attorney Thomas Spota, alleging generally that they were involved with the policy to appoint police officers to oversee post-deprivation hearings. Again, plaintiff complained of the alleged policy in his original complaint, yet elected not to include these individuals as defendants at that time. Plaintiff's rationale for seeking to include these defendants now, namely, the contents of the training video, is insufficient to justify amendment of the complaint to add these defendants at this juncture. This is especially true given that nothing about the contents of the training video itself provides plaintiff with any more information about the alleged involvement of these defendants than plaintiff had prior to receipt of the training video. See Kanyi v. United States, No. 99 CV 5851, 2002 WL 1471648, at *3 (E.D.N.Y. May 3, 2002) (denying plaintiff's motion to amend, which was based on defendant's late production of documents, where there was "no reason that [plaintiff] could not have asserted that claim at the time he filed the original complaint"); Alpha Lyracom Space Commc'ns, Inc. v. Commc'ns Satellite Corp., No. 89 Civ. 5021, 1994 WL 256671, at * 1-3 (S.D.N.Y. June 7, 1994) (denying plaintiffs' motion to amend their complaint to include seventeen new defendants where plaintiffs had the names of the newly proposed defendants when the earlier complaint was filed). This factor weighs against plaintiff's requested relief.
In consideration of the third factor — whether the opposing parties would be required to expend significant additional resources to conduct discovery — it is significant to note that the deadline for completion of discovery was June 30, 2005. When a motion to amend is made after, rather than before, the completion of discovery, prejudice is more likely to occur. See Team Mgmt., Inc. v. Filmline Technologies, Inc., Civ. 92-647, 1994 WL 91871, at * 1 (D. Conn. Feb. 14, 1994) (citing Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985)). As defendants here argue, permitting the plaintiff to amend his complaint would require that discovery be re-opened. Depositions could be taken of the seven new government officials whom plaintiff seeks to sue individually, and each of the seven would be entitled to pursue all types of discovery including separate depositions and document production. The defendants will be required to make a large additional expenditure of time and expense at this stage of litigation. This factor also weighs against the plaintiff's request to amend. In re "Agent Orange" Product Liability Litig., 220 F.R.D. 22, 26 (E.D.N.Y. 2004) (denying plaintiffs' motion to amend because of, inter alia, "the large additional expenditures of time and effort that would be required by the court and parties"); Kanyi v. United States, No. 99 CV 5851, 2002 WL 1471648, at *2 (E.D.N.Y. May 3, 2002) (denying leave to amend where discovery would have to be reopened).
The fourth factor requires consideration of the degree to which amendment would delay the final disposition of the action. There can be no question that the inclusion of seven new defendants in this action, all of them government officials, would significantly delay the action and cause undue prejudice to the defendants. This factor also weighs against granting plaintiff's requested relief. See Alpha Lyracom Space Commc'ns, Inc. v. Commc'ns Satellite Corp., No. 89 Civ. 5021, 1994 WL 256671, at *1-3 (S.D.N.Y. June 7, 1994) (denying plaintiffs' motion to amend their complaint to include new defendants where permitting the amendment would delay the disposition of the case for years);Filmline Technologies, Inc., 1994 WL 91871, at *2 (denying plaintiff's proposed amendment to include a new defendant where new claims "pose too great a risk that the defendants will be required to expend significant additional resources to conduct further discovery and prepare for trial and that the resolution of this dispute will be substantially delayed").
Finally, in considering a plaintiff's motion to amend a complaint, courts have taken into consideration the impact on judicial economy caused by granting a leave to amend. In re "Agent Orange" Product Liability Litig., 220 F.R.D. at 25. This factor also weighs against granting plaintiff leave to amend his complaint. Plaintiff's original complaint contains all of the causes of action plaintiff seeks to allege in the case, and includes all of the defendants necessary to fairly adjudicate this case on the merits. Thus, denial of the motion to amend to include additional defendants does not prejudice the plaintiff's action. Id. at 26 (denying a motion to amend, noting that "[t]he original complaint does not prejudice plaintiffs by denying them necessary or desirable defendants and theories."). Specifically, plaintiff's original complaint names as defendants the County of Suffolk, the Suffolk County Police Department, the Commissioner of the Suffolk County Police Department, the Sheriff of Suffolk County, and the Suffolk County Attorney. An amendment to the complaint to include new defendants, all members of either the Suffolk County Police Department or the Suffolk County Attorney's Office, is not likely to be productive of a more favorable result to the plaintiff. Id. at 24 ("Leave need not be granted if the amendment 'is unlikely to be productive.'") (citing Ruffolo v. Oppenheimer Co., 987 F.2d 129, 131 (2d Cir. 1993)).
With regard to defendant Spota, plaintiff alleges that Spota "became involved in the plan to have police captains sit in judgment at hearings of claimants" and "proceeded with the plan to have [police officers] sit in judgment at said hearings in reckless disregard and with callous indifference to the due process rights of claimants. . . ." (Pl.'s Proposed Am. Compl. ¶ 38, ¶ 40.) This in fact is what the Suffolk County Code, in effect at the time of the seizure and hearing herein, required. Plaintiff's complaints are the sort of vague and conclusory allegations that courts have deemed insufficient as a basis of Section 1983 relief. Patterson v. Travis, No. 02 CV 6444, 2004 WL 2851803, at *4 (E.D.N.Y. Dec. 9, 2004) ("Examples of conclusory allegations are . . . statements that defendants created a policy that allegedly violates certain rights, without specific evidence of defendants' involvement in the creation of the policy."). Nothing exists in the record before the Court, including plaintiff's conclusory assertions, to suggest plaintiff's allegations are anything more than speculative. Rafter, 2006 WL 1071753, at *3 (denying plaintiff's motion to amend where inclusion of proposed defendant was based on speculation). See also Tricoles v. Bumpus, 2006 WL 767897, at *4 (E.D.N.Y. March 23, 2006) (observing that "a rule that would allow plaintiffs to sufficiently state a claim against a department head merely by making a conclusory statement that the allegedly unconstitutional action perpetrated by subordinates was the result of a policy instituted by the department head would allow plaintiffs to engage in fishing expeditions into the affairs of high-level government officials every time a member of their department is accused of committing a violation under § 1983"); LM Business Assocs. v. Ross, No. 04 CV 6142, 2004 WL 2609182, at *1, 4 (W.D.N.Y. Nov. 17, 2004) (denying plaintiff's motion to amend where the added allegations of personal involvement were conclusory, i.e., alleged only that the defendants "formulated, created or maintained [an unconstitutional] policy").
For all of the foregoing reasons, plaintiff's motion to amend his complaint to include defendants Gallagher, Robilotto, Cimino, and Spota should be denied.
III. Assistant County Attorney Pack, District Attorney Division Chief Kearon, and County Police Department Legal Bureau Director Armet
Plaintiff also seeks to amend his complaint to include as defendants Pack, Kearon and Armet, all of whom allegedly trained the police captains to conduct the post-deprivation hearings in an unconstitutional manner. The problem here is that plaintiff's litany of purported training inadequacies is not grounded in the facts stated in the administrative record. Thus, there is no nexus between the administrative record and the alleged constitutional deprivations. See Smith v. City of New York, 388 F. Supp. 2d 179, 188 (S.D.N.Y. 2005) (noting that plaintiffs' failure to demonstrate a nexus between alleged training inadequacies and alleged constitutional violations was fatal to their Monell claims). Simply stated, plaintiff fails to allege that Captain Hanley, the officer responsible for overseeing plaintiff's hearing, engaged in any of the allegedly unconstitutional conduct to which plaintiff's proposed amended allegations are directed. For example, plaintiff alleges in his proposed amended complaint that the police captains trained to serve as hearing officers were instructed to deny claimants the right to examine or cross-examine the arresting officer, to deny all requests for subpoenas made by claimants appearing pro se at the hearing, and to deny requests for adjournments made at the hearing for the first time. However, plaintiff does not allege that Captain Hanley engaged in any of this conduct. Moreover, any such claim is contradicted by the administrative record. Sullivan did not elect to exercise any of these rights at his hearing. (See Tr. at 13-22.) To the contrary, the plaintiff proceeded pro se at the hearing and acknowledged that he knew of his girlfriend's alcohol/drug problem and for that reason he required her to register the car in here name, as she did. (Id. at 13-14, 18-19.) He acknowledged that he was aware of her prior DWI arrest. (Id.) He waived his right to cross-examine the witness called by the ACA at the hearing. (Id. at 12-13.) Moreover, he never requested the issuance of a subpoena, and never requested an adjournment of the proceedings.
Thus, Sullivan has failed to show a connection between the allegedly illegal conduct of which he complains and what actually occurred at the administrative hearing. Such a deficiency is fatal to his claim. Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 45 L. Ed 2d 343 (1975) ("A federal court's jurisdiction therefore can be invoked only when the plaintiff himself has suffered 'some threatened or actual injury resulting from the putatively illegal action'. . . .") (citing Linda R.S. v. Richard D, 410 U.S. 614, 617, 93 S.Ct. 1146, 1148, 35 L. Ed. 2d 536 (1973)). The fact that the plaintiff may share the same vehicle loss as others whose due process rights may have been violated during their post-seizure hearings is an insufficient basis for stating a claim. Warth, 422 U.S. at 502. Accordingly, Sullivan's motion to amend his complaint to name Pack, Kearon, and Armet as defendants should be denied on the ground of futility.
In addition, although the allegations in plaintiff's original and proposed amended complaint focus on the county's alleged unconstitutional conduct in appointing police captains as hearing officers, at the time of the seizure and hearing concerning plaintiff's vehicle in January 2004, the Code expressly provided that the "Suffolk County Police Commissioner may designate the Deputy Commissioner or such other special hearing officers to conduct hearings in accordance with this subsection (B)." Suffolk County, N.Y., Code § 270-26(1)(B)(c) (as approved on May 20, 2003 and made effective June 5, 2003). It was not until a resolution approved on May 3, 2004 and made effective May 17, 2004 — following the New York Court of Appeals decision in County of Nassau v. Canavan, 802 N.E.2d 616, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (N.Y. 2003) — months after the seizure and hearing concerning plaintiff's vehicle, that the Code was amended to provide that the "Suffolk County Executive shall designate neutral magistrates to conduct hearings in accordance with this subsection (B)." Suffolk County, N.Y., Code § 270-26(B)(3) (as approved on May 3, 2004 and made effective May 17, 2004).
Moreover, although, plaintiff complains of Suffolk County's policy of appointing police captains as hearing officers for post-seizure hearings, the facts strongly suggest that Captain Hanley arrived at the result that any reasonable neutral hearing officer would have, upon consideration of the facts established at the administrative hearing. In any event, that is an issue that undoubtedly will be determined on a motion for summary judgment or at a trial.
For the foregoing reasons I recommend that amendment of plaintiff's complaint to include defendants Pack, Kearon, and Armet be denied for reasons of futility.
IV. Suffolk County Attorney Malafi and Police Commissioner Dormer
Plaintiff also seeks to amend the capacity in which he is suing defendants Christine Malafi ("Malafi"), Suffolk County Attorney, and Richard Dormer ("Dormer"), Suffolk County Police Commissioner. Plaintiff's original complaint named Malafi and Dormer as defendants in their official capacities. In his proposed amended complaint, plaintiff seeks to name Malafi and Dormer as defendants in their individual (or personal), as well as official, capacities.
The Supreme Court, in an effort to clarify the distinction between "individual" and "official" capacity suits that "continues to confuse lawyers and confound lower courts," has explained the distinction as follows:
Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity . . . On the merits, to establish personal liability in a § 1983 action, it is enough to show that the official, acting under color of state law, caused the deprivation of a federal right. More is required in an official-capacity action, however, for a governmental entity is liable under Section 1983 only when the entity itself is a 'moving force' behind the deprivation; thus, in an official-capacity suit the entity's 'policy or custom' must have played a part in the violation of federal law.Kentucky v. Graham, 473 U.S. 159, 165-66, 105 S. Ct. 3099, 87 L. Ed.2d 114 (1985) (internal citations omitted). In acknowledgment of the confusion frequently associated with the capacity in which defendants in Section 1983 suits are named, the Second Circuit has held that "in order to avoid disadvantaging a party with a potentially viable claim solely on account of counsel's misconceptions, courts afford plaintiffs more leeway than usual with respect to the characterizations of their § 1983 claims against government officials." Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993).
Here, plaintiff alleges that the conduct of Malafi and Dorner, acting under color of state law, directly caused the deprivation of a federal right (see, e.g., Pl.'s Compl. ¶¶ 70-71, alleging that Dormer approved Captain Hanley's decision to deny Sullivan's application for the return of his vehicle, and that Malafi failed to commence a forfeiture action with 120 days of the seizure, as required by Suffolk County Code). Plaintiff also alleges that Malafi and Dorner acted pursuant to the unconstitutional policy allegedly governing the way seizures and forfeiture hearings are handled (see, e.g., id. ¶¶ 75-76).
The record here reflects that rather than initiating a forfeiture proceeding, the County instead decided to return the vehicle — within 60 days of the seizure.
Taking into consideration the Second Circuit's instruction that plaintiff be afforded some leeway with regard to the naming of government officials as defendants in Section 1983 cases, and in view of the fact that these defendants are already before the Court in the original complaint, I recommend that plaintiff's motion to amend his complaint to include Malafi and Dormer as defendants in their individual, as well official, capacities should be granted. See Jessamy v. City of New Rochelle, New York, 292 F. Supp. 2d 498, 508-509 (S.D.N.Y. 2003) (noting that a plaintiff's complaint must be viewed broadly in the context of a civil rights action and concluding that plaintiff's complaint, while not expressly naming defendants in their personal capacities, indicated an intention to sue the individual defendants in their personal capacities, and the nature of the allegations put defendants on adequate notice).
V. Proposed Increase in Amount of Money Damages Requested
"Courts have held that an amendment increasing the amount of claimed damages should generally be allowed, absent some demonstrable prejudice to the defendant," Cimino v. Glaze, 228 F.R.D. 169, 173 (W.D.N.Y. 2005) (citations omitted), and "[p]urely monetary increase of exemplary, or punitive damages, is not in itself considered prejudicial to the nonmoving party."Pesce v. General Motors Corp., 939 F. Supp. 160, 166 (N.D.N.Y. 1996).
Plaintiff here seeks to increase the amount of requested monetary damages from $100,000 to $250,000. The defendants do not address this proposed amendment in their brief. As it is clear that no prejudice exists to defendant beyond exposure to greater liability, plaintiff's motion to amend his complaint to increase his requested monetary damages from $100,000 to $250,000 should be granted. I further recommend that plaintiff's request to eliminate the original request for injunctive and declaratory relief should be granted.
VI. Proposed Addition of John Doe Defendants
A plaintiff's motion to amend a complaint to add or identify John Doe defendants is governed by Federal Rule of Civil Procedure 15. Talor v. Dzurenda, No. 04 CV 2071, 2006 WL 758633, at * 1 (D. Conn. March 24, 2006). "Underlying this rule is an assumption that the amended complaint will clarify or amplify the original cause of action." Id. (citing Klos v. Haskell, 835 F. Supp. 710, 715 n. 3 (W.D.N.Y. 1993), aff'd 48 F.3d 81 (2d Cir. 1995)).
The plaintiff here seeks to amend his complaint to include as defendants "John Doe," a member of the Legal Bureau of the Suffolk County Police Department who attended the training session for hearing officers on March 6, 2003, and "Jane Doe," a Suffolk County Attorney who also attended the training session. (Pl.'s Proposed Am. Compl. ¶¶ 16-17.) This proposed amendment should be denied for reasons set forth supra, recommending denial of plaintiff's motion to amend the complaint to include identified members of the Suffolk County Police Department and Suffolk County Attorney's office.
CONCLUSION
Plaintiff's motion to amend his complaint should be granted in part and denied in part. Plaintiff's motion to drop the Suffolk County Police Department as a defendant and to add Christine Malafi and Richard Dormer as defendants in their individual capacities should be granted. Plaintiff's motion to amend his complaint to withdraw his request for declaratory and injunctive relief, and his motion to increase the amount of requested monetary damages from $100,000 to $250,000, should also be granted. In all other respects plaintiff's motion should be denied.
OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Any objections to this Report and Recommendation must be filed with the Clerk of the Court with a copy to the undersigned within ten (10) days of the date of this report. Failure to file objections within ten (10) days will preclude further appellate review of the District Court's order. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), and 72(b); IUE AFF-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822 (1994); Frank v. Johnson, 968 F.2d 298 (2d Cir. 1992), cert. denied, 506 U.S. 1038 (1992); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curium).
SO ORDERED.