         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




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