    17-1185-cv
    Barrett v. City of Newburgh

                         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.

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Thurgood Marshall
    United States Courthouse, 40 Foley Square, in the City of
    New York, on the 21st day of December, two thousand
    seventeen.

    PRESENT: DENNIS JACOBS,
             REENA RAGGI,
             CHRISTOPHER F. DRONEY,
                             Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    Virginia D. Barrett,
             Plaintiff-Appellant,

                -v.-                                       17-1185-cv

    City of Newburgh, Joseph Burns, Robert
    Vasta,
             Defendants-Appellees,

    John Doe,
             Defendant.
    - - - - - - - - - - - - - - - - - - - -X
    FOR APPELLANT:              Michael H. Sussman, Sussman &
                                Associates, Goshen, New York.

    FOR APPELLEES:                      David L. Posner, McCabe & Mack
                                        LLP, Poughkeepsie, New York
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     Appeal from a judgment of the United States District
Court for the Southern District of New York (Román, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Virginia Barrett appeals from the judgment of the
United States District Court for the Southern District of
New York dismissing her excessive force claims against two
police officers and her Monell claim against the City of
Newburgh (“Newburgh”). We assume the parties’ familiarity
with the underlying facts, the procedural history, and the
issues presented for review.

     Barrett brought a 42 U.S.C. § 1983 claim against
several John Doe officers alleging they used excessive
force while handcuffing her during a search of her
boyfriend’s apartment on October 12, 2012, and alleging
that Newburgh violated Barrett’s substantive due process
rights under the Fourteenth Amendment by failing to train,
supervise, and discipline its officers to conduct proper
arrests. See Monell v. Dep’t of Soc. Servs. of the City of
N.Y., 436 U.S. 658 (1978).

     In a pre-motion letter, Barrett’s counsel conceded that
he had “inadvertently” pled a Fourteenth Amendment
violation rather than the proper Fourth Amendment
violation, and requested leave to submit an Amended
Complaint correcting the error. The district court granted
the request, but the First Amended Complaint (“FAC”)
retained the Fourteenth Amendment as the principal basis
for the City’s liability under Monell. J. App’x at 26.
The court subsequently dismissed Barrett’s claims against
Newburgh in March 2014, ruling that Barrett failed to state
a claim because the Fourth Amendment is the only source of
constitutional right to be free from excessive force in an
arrest or seizure. See Graham v. Connor, 490 U.S. 386, 395
(1989); 42 U.S.C. § 1983.

     After the district court dismissed her claims against
Newburgh, Barrett attempted to identify the two John Doe
officers referenced in the FAC. She was unsuccessful until
November 2015, when she received a copy of a police report
                             2
that specified officers Joseph Burns and Robert Vasta.
Barrett’s Second Amended Complaint (“SAC”), filed on
December 18, 2015, and replaced the John Does with the
names of the officers. The officer defendants entered an
appearance and moved to dismiss the SAC on the basis that
the three-year statute of limitations had expired on
October 12, 2015. The district court ruled that Barrett
could not relate back the amendments to her complaint to
add the names of the officers and granted the second motion
to dismiss.

     We review de novo the grant of a motion   to dismiss.
McCarthy v. Dun & Bradstreet Corp., 482 F.3d   184, 191 (2d
Cir. 2007). We address the dismissal of the    FAC’s Monell
claim and the SAC’s excessive force claim in   turn.

      1.  “In order to establish the liability of a
municipality in an action under § 1983 for unconstitutional
acts by its employees, a plaintiff must show that the
violation of his constitutional rights resulted from a
municipal custom or policy.” Powell v. Gardner, 891 F.2d
1039, 1045 (2d Cir. 1989). A properly pled Monell claim
establishes a “direct causal link between a municipal
policy or custom and the alleged constitutional
deprivation.” City of Canton v. Harris, 489 U.S. 378, 385
(1989).

     A “failure to train ... employees may constitute an
official policy or custom if the failure amounts to
‘deliberate indifference’ to the rights of those with whom
the city employees interact.” Wray v. City of New York,
490 F.3d 189, 195 (2d Cir. 2007). However, “Monell does
not provide a separate cause of action for the failure by
the government to train its employees; it extends liability
to a municipal organization where that organization’s
failure to train, or the policies or customs that it has
sanctioned, led to an independent constitutional
violation.” Segal v. City of New York, 459 F.3d 207, 219
(2d Cir. 2006) (emphasis in original). Barrett’s Monell
claim alleging a failure by the city to train and supervise
its force can survive only as an extension of her
underlying excessive force action against the police
officers.


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     Under Graham v. Connor, “all claims that law
enforcement officers have used excessive force—deadly or
not—in the course of an arrest, investigatory stop, or
other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard,
rather than under a ‘substantive due process’ approach.”
490 U.S. at 395 (emphasis in original). Because Barrett’s
excessive force claim “fits comfortably under the coverage
of the Fourth Amendment,” Barrett cannot proceed under
substantive due process doctrine. Russo v. City of
Bridgeport, 479 F.3d 196, 208-09 (2d Cir. 2007). The
district court properly dismissed the complaint for failure
to state a claim upon which relief can be granted.

     The district court also denied leave to amend, a
decision we review for abuse of discretion. Because
Barrett was already given leave to amend with the express
purpose of stating a claim under the Fourth Amendment and
failed to do so, we find no abuse of discretion in the
district court’s denial of a third chance. See Cresswell
v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).

     2.  Relation back permits an amended pleading to be
considered for statute of limitations purposes as though it
were filed on the date of the original complaint. See Fed.
R. Civ. P. 15(c). John Doe substitutions in a Section 1983
action “may only be accomplished when all of the
specifications of Fed. R. Civ. P. 15(c) are met.”
Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.
1993). Barrett’s December 2015 amendments to claims
arising out of an October 2012 incident would ordinarily be
time barred by New York’s three-year statute of limitations
for deprivation of civil rights actions. N.Y. C.P.L.R. §
214. Barrett contends that her second amended complaint
relates back because she meets the specifications of Rule
15(c)(1) subsections (A) and (C). See Hogan v. Fischer,
738 F.3d 509, 517 (2d Cir. 2013).

      As the district court concluded, Barrett failed to
satisfy Rule 15(c)(1)(C). “[L]ack of knowledge of a John
Doe defendant’s name does not constitute a mistake of
identity.” Doe v. New York, 97 F. Supp. 3d 5, 18 (E.D.N.Y.
2015) (citing Hogan, 738 F.3d at 518). Since Barrett
contends that she was unaware of Vasta and Burns’ names
                             4
until she filed her second amended complaint, she cannot
argue that failing to identify them was a “mistake” within
the meaning of Rule 15(c)(1)(C).

     An amendment that fails under Rule 15(c)(1)(C) may
nevertheless relate back under subsection (A) when “the law
that provides the applicable statute of limitations allows
relation back.” Fed. R. Civ. P. 15(c)(1)(A). Since
Section 1983 “derives its statute of limitations from state
law,” we look to section 1024 of the New York Civil
Practice Law and Rules (“CPLR”). Hogan, 738 F.3d at 518-19
(establishing that Rule 15(c)(1)(A) and CPLR 1024 provide
the proper instruction for Section 1983 claims against John
Doe defendants). A plaintiff “who is ignorant, in whole or
in part, of the name or identity of a person who may
properly be made a party” may proceed against that party by
designating a fictitious name (a “John Doe”) until they
become aware of that party’s identity. N.Y. C.P.L.R.
§ 1024.

     In order to take advantage of CPLR 1024, a plaintiff
who has substituted a named party for a “John Doe” must:
(1) “‘exercise due diligence, prior to the running of the
statute of limitations, to identify the defendant by
name;’” and (2) “describe the John Doe party ‘in such form
as will fairly apprise the party that [he] is the intended
defendant.’” Hogan, 738 F.3d at 519 (quoting Bumpus v.
N.Y.C. Transit Auth., 883 N.Y.S.2d 99, 104, 66 A.D.3d 26
(2d Dept. 2009)).

     Section 1024’s “due diligence” requirement is not
forgiving. The onus of identifying an officer defendant’s
name, or at least making a good faith effort, lies on the
plaintiff. Id. at 518-19. Due diligence is not exercised
by “last minute” or token discovery requests. See, e.g.,
Doe v. New York, 97 F. Supp. 3d at 19; JCG v. Ercole, 2014
WL 1630815, at *14 (S.D.N.Y. Apr. 24, 2014); Temple v. N.Y.
Cmty. Hosp. of Brooklyn, 89 A.D.3d 926, 927-28 (2d Dept.
2011). A plaintiff exercising due diligence will take
concrete and timely steps to ascertain an officer
defendants’ identity, for example by submitting multiple
discovery demands, requests under state or federal Freedom
of Information laws, or requests to the Attorney General’s
office. See Mabry v. N.Y.C. Dep’t of Corr., No. 05 Civ.
                             5
8133(JSR)(JCF), 2008 WL 619003, at *6 (S.D.N.Y. Mar. 7,
2008)(allowing relation back where plaintiff “aggressively
sought the identities of the defendants”); see also Hogan,
738 F.3d at 513, 519 (finding due diligence requirement met
on the basis of discovery requests); Ceara v. Deacon, 68 F.
Supp. 3d 402, 412 (S.D.N.Y. 2014) (finding due diligence
requirement met where a pro se plaintiff’s efforts included
pursuing the inspector general and the Attorney General,
and regularly notifying the Court of these efforts).

     Barrett alleges that she was diligent, but the district
court found otherwise. Although Barrett’s case against the
city was dismissed in March 2014, it was a year later, in
March 2015, that she filed formal discovery demands on the
city’s counsel and requested police reports concerning her
injuries directly from the city. Receiving no response,
Barrett contacted the city’s counsel again regarding
discovery of the officer’s names in July 2015. When the
city and its outside counsel refused to provide the names
of the officers, she issued asubpoena duces tecum on the
Chief of Police roughly six weeks before the expiration of
her claims. Months later, Barrett was provided a copy of
the police report that allowed her to identify the
officers. At no time did Barrett update the court on the
progress of her search for the identity of the John Doe
officers.

     The district court concluded that these efforts failed
to satisfy the due diligence requirement of Section 1024.
While at the motion to dismiss stage we review the district
court’s legal conclusions de novo, the due diligence
determination is a question of fact that we may review for
clear error. See Rivas v. Fischer, 687 F.3d 514, 534-35
(2d Cir. 2012). “When reviewing for clear error, we may
reverse only if we are left with the definite and firm
conviction that a mistake has been committed ... and where
there are two permissible views of the evidence, the
factfinder’s choice between them cannot be clearly
erroneous.” United States v. Berschansky, 788 F.3d 102,
110 (2d Cir. 2015) (internal citations and quotation marks
omitted).

     Whether Barrett’s efforts satisfy the due diligence
requirement of § 1024 is a close question on which
                             6
reasonable fact-finders could disagree. On the one hand,
Barrett stresses that in the nine months before the statute
of limitations had run she pursued at least three avenues
to identify the officers. She therefore exceeded the
efforts expended in instances in which due diligence was
found to be clearly inadequate. See, e.g., Williams v.
United States, No. 07 Civ. 3018(RJS)(THK), at *13 (noting
plaintiff “appears to have expended no efforts at all to
identify the Individual Defendants”); Ceara v. Deacon, 2017
WL 363003, at *11 (S.D.N.Y. Jan. 23, 2017) (collecting
cases where the plaintiff could not document any concrete
efforts to seek information); Doe v. New York, 97 F. Supp.
3d at 20 (due diligence not exercised when plaintiff had
names available in medical records but asserted he was
“unable to read” them and did not reach out to the court
for assistance).

     However, for reasons not clear to the Court, Barrett
waited more than two years after the events took place to
begin to inquire into the names of the defendant Does.
Even if Barrett’s counsel was abiding by the district
court’s discovery procedures during the pendency of
Newburgh’s motion to dismiss, the first efforts to uncover
the names of the officers did not occur until nearly a year
after the dismissal of the FAC.

     A defendant’s “recalcitrance” in responding to
discovery requests is not a shield from liability. See
Duncan v. City of New York, No. 11-CV-3901 (ENV)(JO), 2014
WL 3530858, at *2 (E.D.N.Y. July 15, 2014) (plaintiff who
made “extensive efforts over many months” satisfied
diligence requirement despite served parties non-
compliance); Hogan, 738 F.3d at 519 (holding plaintiff
satisfied diligence requirement after he “diligently sought
to identify the John Doe defendants” and the “named
defendants ... failed to respond fully to Hogan’s
requests”). The city’s attorney likely knew the names of
the officers and should not have ignored Barrett’s requests
for six months. At the same time, Barrett’s delay was not
explained, and her discovery requests and subpoena were not
proper; more importantly, she did not protest to the court
until after the limitations period ran, and never filed a
formal FOIA request with the city. Cf. Temple, 89 A.D.3d
at 927-28.
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     We therefore cannot conclude that the district court
was clearly erroneous in finding that Barrett failed to
exercise due diligence pursuant to § 1024. See Rivas, 687
F.3d at 534-35. While it would be possible to reach a
different outcome, “where there are two permissible views
of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” United States v. Murphy, 703
F.3d 182, 188 (2d Cir. 2012). Since Barrett did not
satisfy the requirements for relation back under § 1024 and
Rule 15(c)(1)(A), her claim is barred by the three-year
statute of limitations.

     For the foregoing reasons, we hereby AFFIRM the
judgment of the district court.

                  FOR THE COURT:
                  CATHERINE O’HAGAN WOLFE, CLERK OF COURT




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