Patrick R. Smith v. Corrections Officer Gottlob

12-2683-cv
Patrick R. Smith v. Corrections Officer Gottlob
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 6th day of May, two thousand thirteen.
5
6 PRESENT: RICHARD C. WESLEY,
7 SUSAN L. CARNEY,
8 J. CLIFFORD WALLACE,*
9 Circuit Judges.
10
11
12
13 PATRICK R. SMITH,
14
15 Plaintiff-Appellant,
16
17 -v.- No. 12-2683-cv
18
19 CORRECTION OFFICER GOTTLOB
20
21 Defendant-Appellee.**
22
23
24
25 FOR APPELLANT: MICHAEL A. DEEM, Law Office of Michael A.
26 Deem, Ossining, NY.
27
*
The Honorable J. Clifford Wallace, of the United States
Court of Appeals for the Ninth Circuit, sitting by designation.
**
The Clerk of the Court is directed to amend the
caption to conform with the caption above.
1 FOR APPELLEE: JUSTIN R. ADIN, Assistant County
2 Attorney, for Robert F. Meehan,
3 Westchester County Attorney, White
4 Plains, NY.
5
6 Appeal from the United States District Court for the
7 Southern District of New York (Scheindlin, J.).
8
9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
10 AND DECREED that the orders are AFFIRMED.
11 Patrick Smith appeals from a judgment of the district
12 court denying him leave to file a Second Amended Complaint.
13 We assume the parties’ familiarity with the underlying facts
14 and history of the case, as well as the issues on appeal.
15 Although the notice of appeal did not specify the
16 orders appealed, we have jurisdiction in this case. See
17 SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 178 (2d
18 Cir. 2000) (“[A] notice of appeal from a final judgment
19 brings up for review all reviewable rulings which produced
20 the judgment.” (internal quotations omitted)).
21 Smith sought leave to add a claim pursuant to Monell v.
22 Department of Social Services of the City of New York, 436
23 U.S. 658 (1978). The district court did not abuse its
24 discretion in denying leave because the claim would cause
25 undue prejudice to Defendants. See McCarthy v. Dun &
26 Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
2
1 Morever, the claim would be futile. See Milanese v. Rust-
2 Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001). In the
3 absence of a viable claim that Westchester officials used
4 excessive force against Smith, Smith is unable to state a
5 claim based upon a municipal policy or custom endorsing the
6 use of excessive force.
7 The district court was also within its discretion in
8 denying Smith leave to amend the complaint to add
9 Corrections Officer Holmes as a defendant. The district
10 court did not err in distinguishing “John Doe” cases in
11 which plaintiffs broadcast their continued quest to identify
12 the party who allegedly wronged them. Although knowledge of
13 the lawsuit can be imputed to Holmes’s attorneys, they could
14 not reasonably have known that Smith intended to sue Holmes.
15 See Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989)
16 (“In order to support an argument that knowledge of the
17 pendency of a lawsuit may be imputed to a defendant or set
18 of defendants because they have the same attorney(s), there
19 must be some showing that the attorney(s) knew that the
20 additional defendants would be added to the existing
21 suit.”). Smith litigated vigorously against the initial
22 defendants, lost, and now seeks to try his luck against
3
1 someone new; the district court did not abuse its discretion
2 in denying him this opportunity. Smith v. Westchester Cty.
3 Dep’t of Corrections, 2012 WL 527222 at *6 (S.D.N.Y. Feb.
4 15, 2012).
5 We have considered all of Smith’s arguments and find
6 them to be without merit. For the reasons stated above, the
7 judgment of the district court is AFFIRMED.
8
9 FOR THE COURT:
10 Catherine O’Hagan Wolfe, Clerk
11
12
4