Anderson v. City of Buffalo et al

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MAXWELL T. ANDERSON,
Plaintiff,
-v- 	23-CV-00820-JLS-HKS
CITY OF BUFFALO, COUNTY OF ERIE,
OFFICER JOHN DOES (1-3)
Defendants.
REPORT, RECOMMENDATION AND ORDER
This case was referred to the undersigned by the Hon. John L. Sinatra, in
accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon
dispositive motions. Dkt. #7.
Plaintiff Maxwell T. Anderson (“Plaintiff”) brings this civil rights action
pursuant to 42 U.S.C. ' 1983, alleging claims arising out of his arrest by the Buffalo police
and detention at the Erie County Holding Center. Dkt. #1.
Currently before this Court are plaintiff’s motion to amend the complaint,
Dkt. #17, and his motions for an extension of time to complete discovery, Dkt. ##22, 23.1
1 Although motions to amend a complaint are typically considered non-dispositive, where they are
decided on the grounds of futility courts in this district treat them as dispositive. Dolac v. County
of Erie, 17-CV-1214 (JLS), 2020 WL 2840071, at *1, n.2 (W.D.N.Y. June 1, 2020) (citations
omitted). Therefore, the Court makes its determinations here in the form of a Report and
Recommendation. Id.
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BACKGROUND
On August 14, 2022, plaintiff was celebrating a friend’s birthday at a bar in
downtown Buffalo. Dkt. #1, ¶¶ 12-13. Around 2:00 a.m., plaintiff left the bar and began
crossing the street behind a car that was partially blocking a crosswalk. Dkt. #1, ¶¶ 13-
14. The driver of the car was directed by police to reverse so as not to block an
intersection, and the car began backing towards plaintiff. Dkt. #1, ¶ 15.
When plaintiff realized that the driver was not going to stop, plaintiff
smacked the back of the car and yelled for the driver to watch where he was going. Dkt.
#1, ¶ 16. Plaintiff did not damage the car, and the driver did not acknowledge or interact
with plaintiff. Dkt. #1, ¶ 17.
Plaintiff continued to cross the street, passing a group of Buffalo police
officers who did not acknowledge or attempt to detain plaintiff. Dkt. #1, ¶ 18.
After walking another half block, plaintiff was tackled from behind, causing
him to hit his head on the ground and momentarily lose consciousness. Dkt. #1, ¶ 19.
When plaintiff regained awareness, he realized that his right hand was handcuffed, his
left hand was trapped underneath him, and he could not identify his assailant. Dkt. #1,
¶ 20.
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When plaintiff freed his left hand, he turned and saw that he was being held
down by a police officer. Dkt. #1, ¶ 21. Plaintiff ceased struggling and asked why he was
being arrested, but he received no response. Id.
The police officer searched plaintiff while he was still on the ground and
found a small bag of psilocybin mushrooms in plaintiff’s pocket. Dkt. #1, ¶ 22. The officer
then pulled plaintiff off the ground. Id. Plaintiff continued asking why he was being
arrested, but neither the first officer nor other officers who had joined him responded. Id.
Plaintiff was placed into a police car, and he continued to ask why he was
being arrested. Dkt.#1, ¶ 23. One officer said, “you know why,” which plaintiff assumed to
mean the incident with the car. Id.
Plaintiff alleges that he did not “fit” in the police car, and he was in pain
because the handcuffs were so tight. Dkt. #1, ¶ 24. He begged the police multiple times
to loosen the cuffs, and he alleges that he had marks on his wrists from the cuffs for over
two weeks. Id.
Plaintiff was taken to the Erie County Holding Center where he was booked
and fingerprinted. Dkt. #1, ¶ 25. He asked multiple times when he could have his phone
call and was told “you’ll get it when you get it.” Dkt. #1, ¶ 25. Plaintiff was then taken to a
cell where he was detained from approximately 3 a.m. until 9 a.m. without any medical
attention for his injuries. Id. His requests for a phone call were again ignored. Id.
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Around 7:30 a.m., plaintiff was told the phones were turned off and he
should already have gotten his call. Dkt. #1, ¶ 26. Plaintiff alleges that an officer called
his mother and told her that her son had been arrested because “he had gotten into a
little altercation on Chippewa.” Id. The officer told plaintiff’s mother that there was an
arraignment at 9:30 a.m., but he gave her no further information. Id.
Before his arraignment, plaintiff was approached by an Erie County attorney
who asked him for his personal information. Dkt. #1, ¶ 27. Plaintiff told the attorney that
he needed medical attention and requested to see a doctor, which the attorney denied.
Id.
Plaintiff alleges that when he was taken from his cell to the arraignment, he
could not walk properly due to leg and ankle injuries. Dkt. #1, ¶ 28.
During the arraignment, plaintiff was told he was being charged with two
felonies, which were not explained, and he was not given a chance to speak to an
attorney. Dkt. #1, ¶ 29. He was also told that the driver of the car had filed for a restraining
order against him. Id. He was told to return on August 9, 2022 for sentencing. Id.
Following the arraignment, plaintiff’s mother took him directly to the hospital.
Dkt. #1, ¶ 30.
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Plaintiff alleges that, as a result of being tackled by the police officer, he
suffered scrapes to his knees and thighs; his toe was swollen for a week and he was later
diagnosed with trauma-induced arthritis in his toe; he suffered a concussion which
worsened into post-concussion syndrome due to lack of medical attention; he now
receives nerve block injections in his neck and back due to pain from the severe head
trauma; he suffered an eye injury and dislocation of his jaw; and previous shoulder, knee,
and ankle injuries from playing football were aggravated, preventing him from returning
to playing football in college. Dkt. #1, ¶¶ 32-36.
Plaintiff filed this action on August 11, 2023. Dkt. #1. Plaintiff named as
defendants the City of Buffalo, Erie County, and three John Doe police officers. Id.2 He
alleges claims under § 1983 for excessive force, municipal liability, and deliberate
indifference to his medical needs. Dkt. #1. He also alleges state law claims for battery
and false arrest/false imprisonment against the police officers and negligence against
Erie County. Id.3
On 	January 	22, 	2024, 	plaintiff 	received 	defendants’ 	Rule 	26(A)(1)
disclosures identifying the names of the police officers involved in his arrest. Dkt. #17-2,
¶ 8. On March 14, 2024, plaintiff received responses to discovery requests which provided
facts concerning the officers’ involvement in the arrest. Dkt. #17-2, ¶ 9.
2 The City of Buffalo and the police officers will be referred to collectively as the “Buffalo
defendants.”
3 In its answer, Erie County cross-claimed against the Buffalo defendants for contribution or
indemnification. Dkt. #6, ¶ 24.
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On March 27, 2024, plaintiff filed a motion for leave to amend his complaint
to substitute the names of the police officers originally identified as John Does. Dkt. #17.4
The Buffalo defendants opposed the motion, Dkt. # 19, and on May 3, 2024, plaintiff filed
a reply, attaching a revised proposed amended complaint. Dkt. #20.
Plaintiff has also filed two motions to extend the discovery deadlines, which
are unopposed. Dkt. ## 22, 23. The Court will reserve as to those motions, however, until
the presiding district judge has passed on this Report and Recommendation.
DISCUSSION AND ANALYSIS
Legal Standards
Federal Rule of Civil Procedure provides that the “court should freely give
leave [to amend] when justice so requires.” Fed. R. Civ. P. 15(a)(2). “Nevertheless, it is
within the sound discretion of the district court to grant or deny leave to amend.” Dolac,
2020 WL 2840071, at *2 (citation and internal quotation marks omitted).
“A district court has discretion to deny leave for good reason, including
futility, bad faith, undue delay, or undue prejudice to the opposing party.” Id. A proposed
amendment is futile if it “would fail to cure prior deficiencies or to state a claim under Rule
12(b)(6) of the Federal Rules of Civil Procedure.” Id.
4 The proposed amended complaint also seeks to add a negligence claim against the Buffalo
defendants. Dkt. #17-3, p. 14.
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Timeliness of Plaintiff’s State Law Claims5
The Buffalo defendants argue that plaintiff’s state law claims for battery,
negligence, and false arrest/false imprisonment are untimely as to the individual police
officers and that the claims in the proposed amended complaint do not relate back to the
original complaint. Dkt. #19, pp. 3-4.
Under New York law, intentional tort claims against a municipal employee—
including claims for false imprisonment, false arrest, and battery—“are subject to the one-
year-and-90-day statute of limitations in General Municipal Law § 50-i.” Garrett v. City of
Lackawanna, 1:23-CV-00377 EAW, 2024 WL 3616518, at *6 (W.D.N.Y. July 31, 2024)
(citation and internal quotation marks omitted). See also D’Angelo v. City of Lockport, 19-
CV-221-LJV-MJR, 2023 WL 6810274, at *5-6 (W.D.N.Y. Oct. 16, 2023) (discussing
conflicting caselaw but concluding that limitations period in § 50-i applied to tort claims
against city police officers).
The same statute of limitations applies to plaintiff’s negligence claims.
Liverpool v. City of New York, 20-cv-04629, 2023 WL 2746124, at *5 (S.D.N.Y. Mar. 31,
2023) (citation omitted).
The events at issue in this matter occurred on August 14, 2022. One year
and ninety days from that date was November 12, 2023, and plaintiff’s proposed amended
complaint was not filed until March 27, 2024. Dkt. #Dkt. #17-3.
5 The Buffalo defendants also aver that “Dominique Davis” and “Niko Davis” are the same person,
and that person uses the name “Niko.” Dkt. #19, ¶ 4.
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Thus, the state law claims against the John Doe defendants who plaintiff
now wishes to name are time-barred unless the proposed amendment relates back to the
original complaint, which was filed within the applicable limitations period. See Hogan v.
Fischer, 738 F.3d 509, 517 (2d Cir. 2013) (replacing a “John Doe” with a named party
constitutes a change in the party sued, and thus such substitution must satisfy all parts
of Rule 15(c)).
However, the Second Circuit “has interpreted the rule to preclude relation
back for amended complaints that add new defendants, where the newly added
defendants were not named originally because the plaintiff did not know their identities.”
Id. (citations omitted). That is, the failure to identify defendants’ names does not constitute
a “mistake” within Rule 15(c)(1)(C)(ii). Id.
Plaintiff fails to acknowledge this authority in his reply brief and simply
argues that he has satisfied the requirements of this rule. Dkt. #20.
Therefore, the proposed amendment should be denied on the grounds of
futility as to the individual police officers with respect to state law claims for battery,
negligence, and false arrest/false imprisonment.6
6 Plaintiff does not invoke Rule 15(c)(1)(A), which permits relation back when “the law that
provides the applicable statute of limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A).
“Unlike the Federal Rules of Civil Procedure, the New York Civil Practice Law and Rules (“CPLR”)
creates a special procedure for claims alleged against John Doe defendants.” Hogan, 738 F.3d
at 518. That rule, NYCPLR § 1024, has been interpreted “to permit John Doe substitutions nunc
pro tunc.” Joseph v. Bute, 16-CV-2004 (PKC) (LB), 2019 WL 181302, at *5 (E.D.N.Y. Jan. 9,
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Group Pleading
The Buffalo defendants concede that plaintiff’s proposed amendment to
name the individual police officers is timely as to his § 1983 claims. Dkt. #19, ¶ 8.
However, they argue that these claims nonetheless fail because plaintiff relies on
impermissible group pleading and therefore fails to state a claim. Dkt. #19, pp. 4-5.
It is well settled in the Second Circuit that “personal involvement of
defendants in alleged constitutional deprivations is a prerequisite to an award of damages
under § 1983.” Tracey v. City of Geneva, No. 6:17-cv-06567-MAT, 2018 WL 1509355, at
*3 (W.D.N.Y. Mar. 26, 2018) (quoting Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)).
A complaint that lumps all defendants together without making specific
individual factual allegations fails to state a § 1983 claim. Id.
In response to defendants’ argument, plaintiff attached to his reply brief a
revised proposed amended complaint. Dkt. #20-2.7 With respect to plaintiff’s excessive
force claim, this complaint indisputably uses impermissible group pleading.
Plaintiff again alleges that he was tackled and held down by “a police
officer,” Dkt. #20-2, ¶ 22, but he does not identify the police officer by name or description.
2019) (citation omitted). However, under NYCPLR § 1024, “a plaintiff must show that he or she
made timely efforts to identify the correct party before the statute of limitations expired.” Id (citation
and internal quotation marks omitted). There is nothing in the record of this case that speaks to
this issue and, again, plaintiff does not rely on this part of Rule 15.
7 The Court will thus treat this filing as the operative proposed amended complaint.
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In the ensuing paragraphs—which repeat his allegations that he was handcuffed too
tightly and not told why he was being arrested—he also does not identify any officers by
name. Dkt. #20-2, ¶¶ 23-26.
Under the section for the excessive force cause of action, plaintiff lumps all
named defendants together in each paragraph alleging the bases for the claim. Dkt. #20-
2, ¶¶ 40-52. Plaintiff also alleges that all named officers tackled him to the ground, Dkt.
#20-2, ¶ 45, but this is inconsistent with the prior allegation that he was tackled and held
down by a single, unidentified officer who was then joined by other officers. Dkt. #20-2,
¶ 23.
In short, plaintiff has not put any individual officer on notice of what actions
he or she is alleged to have taken in contravention of plaintiff’s right to be free from
excessive force. Tracey, 2018 WL 1509355, at *3. This is “precisely the type of group
pleading that the Second Circuit and this Court have held fails to comport with the
requirements of Rule 8.” Id.
Plaintiff’s revised claim for deliberate indifference presents a closer call.8
Under the section for this claim, plaintiff again lumps all officers together, but he also
8 The Court notes that plaintiff alleges deliberate indifference under the Eighth Amendment. But
assuming plaintiff was only a pretrial detainee at the time of these events, his claim for deliberate
indifference arises under the Due Process Clause of the Fourteenth Amendment rather than the
Cruel and Unusual Punishments Clause of the Eighth Amendment. Watt v. City of New York,
— F. Supp.3d —, 22-CV-6841 (AMD) (JAM), 2024 WL 3338267, at *9 (July 9, 2024) (citations
omitted).
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alleges that they were all present when he hit his head and blacked out for a brief period.
Dkt. #20-2, ¶ 66. He further alleges that they observed his confusion when he regained
consciousness; knew that this created a serious medical need to have him evaluated for
a concussion and head trauma; provided no medical care; and failed to inform the Erie
County Holding Center staff of his injury. Id.
Plaintiff’s allegations regarding his concussion sufficiently plead that he had
an objectively serious medical need. See Hamlett v. Everly, 21-cv-6663, 2024 WL
1892265, at *7 (S.D.N.Y. April 30, 2024). Whether plaintiff can satisfy the subjective prong
of this inquiry should be a subject for discovery.
Therefore, it will be recommended that the amendment as to the individual
police officers be denied as to the excessive force claim but granted as to the deliberate
indifference claim.
CONCLUSION
For the foregoing reasons, it is recommended that plaintiff’s motion to
amend his complaint, Dkt. #17, be granted in part and denied in part, as follows:
(1) The motion should be denied on the grounds of futility as to the individual
police officers with respect to state law claims for battery, negligence,
and false arrest/false imprisonment;
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(2) The motion should be denied on the grounds of futility as to plaintiff’s
excessive force claim against the individual police officers;
(3) The motion should be granted as to plaintiff’s deliberate indifference
claim against the individual police officers, whose names should be
substituted for the John Doe defendants; and
(4) Plaintiff should be ordered to file an amended complaint that reflects the
Court’s rulings.
Therefore, it is hereby ORDERED pursuant to 28 U.S.C. ' 636(b)(1) that:
This Report, Recommendation and Order be filed with the Clerk of the
Court.
ANY OBJECTIONS to this Report, Recommendation and Order must be
filed with the Clerk of this Court within fourteen (14) days after receipt of a copy of this
Report, Recommendation and Order in accordance with the above statute, Fed .R. Civ.
P. 72(b) and Local Rule 72(b).
The district judge will ordinarily refuse to consider de novo arguments, case
law and/or evidentiary material which could have been, but were not presented to the
magistrate judge in the first instance. See, e.g., Patterson-Leitch Co. v. Massachusetts
Mun. Wholesale Electric Co., 840 F.2d 985 (1st Cir. 1988).
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Failure to file objections within the specified time or to request an extension
of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S.
140, 106 S. Ct. 466, 88 L. Ed.2d 435 (1985); Wesolek v. Canadair Ltd., 838 F.2d 55 (2d
Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) of the Local Rules for
the Western District of New York, "written objections shall specifically identify the portions
of the proposed findings and recommendations to which objection is made and the basis
for such objection and shall be supported by legal authority." Failure to comply with the
provisions of Rule 72(b) may result in the District Judge's refusal to consider the objection.
The 	Clerk 	is 	hereby 	directed 	to 	send 	a 	copy 	of 	this 	Report,
Recommendation and Order to the attorneys for the parties.
SO ORDERED.
DATED: 	Buffalo, New York
August 20, 2024
s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge
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