RULING AND ORDER
Plaintiff, Ramon Lopez, a Connecticut inmate, brings thisaction primarily pursuant to 42 U.S.C. § 1983 against a number ofcorrectional officers at the Northern Correctional Institution("NCI") in Somers, Connecticut. Mr. Lopez claims that OfficerJames Smiley assaulted him on August 31, 2001 and again onSeptember 5, 2001, in violation of federal and state law. Mr.Lopez further asserts that the other defendants were presentduring the alleged September 5, 2001 assault and that they failedto intervene to protect him, again in violation of federal andstate law. Currently pending before the Court are Mr. Lopez'sMotion for Reconsideration [doc. #108] and Supplemental Motionfor Reconsideration [doc. #109], which pertain to Chief JudgeRobert N. Chatigny's Ruling and Order of October 5, 2004 [doc.#104]. Also pending is Mr. Lopez's Motion to Amend theSecond Amended Complaint [doc. #147], which raises many of the sameissues as the motions for reconsideration.
For the following reasons, Mr. Lopez's motions forreconsideration [docs. #108 & #109] are GRANTED, and Mr. Lopez'sMotion to Amend the Second Amended Complaint [doc. #147] isDENIED. I.
On January 31, 2005, this case was transferred to theundersigned from Chief Judge Chatigny. Chief Judge Chatigny'sRuling and Order of October 5, 2004 [doc. #104] (the "October 5Ruling") granted in part and denied in part Mr. Lopez's motion tomodify his amended complaint [doc. #68] and denied Mr. Lopez'smotion to substitute a party [doc. #83] as moot. Familiarity withthe October 5 Ruling and the underlying facts of this case ispresumed.
Over one month after issuance of the ruling, Mr. Lopez filed amotion for reconsideration [doc. #108] and a supplemental motionfor reconsideration [doc. #109] (on November 10, 2004 andNovember 15, 2004, respectively). The Court notes — as correctlyobserved by Defendants in their Memorandum in Response toPlaintiff's Motion for Reconsideration [doc. #114] at 1 — thatunder Local Rule 7(c)(1) of the District of Connecticut,"[m]otions for reconsideration shall be filed and served withinten (10) days of the filing of the decision or order from whichsuch relief is sought." D. Conn. L. Civ. R. 7(c)(1). Ordinarily,a failure to timely file a motion for reconsideration constitutessufficient grounds for denying the motion. However, in this case,the Court will exercise its discretion to address Mr. Lopez'suntimely motions for reconsideration, in view of the issuesraised in the motions and since Defendants do not claim anyprejudice from the delay. See, e.g., Kamasinski v. JudicialReview Council, 843 F. Supp. 811, 812 (D. Conn. 1994) (Cabranes,J.) ("The defendants make several arguments in opposition to theplaintiff's motion for reconsideration, claiming first that it isuntimely. The court, however, declines to deny the plaintiff'smotion in such summary fashion."); cf. Transaero, Inc. v. LaFuerza Aerea Boliviana, 99 F.3d 538, 541 (2d Cir. 1996) ("[A]district court is vested with the power to revisit its decisionsbefore the entry of final judgment and is free from theconstraints of Rule 60 in so doing. . . ."). II.
The standard for granting a motion for reconsideration isstrict. See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2dCir. 1995). "Such a motion generally will be denied unless themoving party can point to controlling decisions or data that thecourt overlooked — matters, in other words, that might reasonablybe expected to alter the conclusion reached by the court." Id.A "motion for reconsideration may not be used to plug gaps in anoriginal argument or to argue in the alternative once a decisionhas been made." Horsehead Resource Dev. Co., Inc. v. B.U.S.Envtl. Serv., Inc., 928 F. Supp. 287, 289 (S.D.N.Y. 1996)(internal citations and quotations omitted). Furthermore, a"motion to reconsider should not be granted where the movingparty seeks solely to relitigate an issue already decided."Shrader, 70 F.3d at 257.
Mr. Lopez seeks reconsideration on the following grounds: (1)the October 5 Ruling misconstrued the Connecticut Supreme Court'sholdings in Binette v. Sabo, 244 Conn. 23 (1998), and Martinv. Brady, 261 Conn. 372 (2002), and therefore Mr. Lopez shouldbe allowed to press his claims for money damages and declaratoryand injunctive relief based on violations of Article First, §§ 4,5, 7, 8, 9, 10 and 14 of the Connecticut Constitution, (2) theOctober 5 Ruling does not take into account the Second Circuit'srecent guidance in Ziemba v. Wezner, 366 F.3d 161 (2d Cir.2004), regarding estoppel and exhaustion of administrativeremedies under the Prison Litigation Reform Act ("PLRA"),42 U.S.C. § 1997e, and therefore Mr. Lopez should be allowed topress his claims related to the alleged August 31, 2001 incident;and (3) the October 5 Ruling failed to consider Mr. Lopez'srequest to amend his complaint to bring state common law batteryclaims involving both the alleged August 31, 2001 incident andthe alleged September 5, 2001 incident, and therefore Mr. Lopez should be allowed to press boththese claims.
The Court will address each ground for reconsideration in turn.
Mr. Lopez first asserts that the October 5 Ruling improperlyinterpreted Binette v. Sabo and Martin v. Brady, supra, asallowing Connecticut constitutional tort claims only when theyare asserted against state employees in their officialcapacities. According to the Connecticut Supreme Court, "for somecircumstances, [Binette] created a private cause of action forviolations of article first, §§ 7 and 9, of the Connecticutconstitution." ATC P'ship v. Town of Windham, 251 Conn. 597,602-03 (1999). The October 5 Ruling stated that a "Binettecause of action may be brought against a person in his officialcapacity only." Ruling and Order of October 5, 2004 [doc. #104]at 3 (citing Martin, 261 Conn. at 374). The October 5 Rulingthen denied Mr. Lopez's motion to add a Binette cause of actionbecause Mr. Lopez was suing Defendants in their individualcapacities, not in their official capacities. See Ruling andOrder of October 5, 2004 [doc. #104] at 3.
As Defendants concede, however, "the state of the law on thispoint is, at best, murky." Defs.' Mem. in Resp. [doc. #114] at 2.For example, in Martin, the Connecticut Supreme Court statedthat "at oral argument before this court the defendants concededthat, in the plaintiff's complaint, properly construed, he suedthem in their individual, rather than their official, capacities,and that, therefore, Binette v. Sabo, was inapplicable."Martin, 261 Conn. at 374 (internal citation omitted).1However, as Defendants acknowledge, the Supreme Court in Martin dismissed the case on the ground that the defendants in that casewere immune from suit under section 4-165 of the ConnecticutGeneral Statutes, which states in relevant part that "[n]o stateofficer or employee shall be personally liable for damage orinjury, not wanton, reckless or malicious, caused in thedischarge of his duties or within the scope of his employment."Conn. Gen. Stat. § 4-165 (emphasis added); see Defs.' Mem. inResp. [doc. #114] at 2. Furthermore, Defendants recognize thatunder Connecticut law, an action for money damages cannot bebrought against state defendants in their official capacities.Defs.' Mem. in Resp. [doc. #114] at 2; see Prigge v. Ragaglia,265 Conn. 338, 349 (2003) ("[T]he exception to the doctrine ofsovereign immunity for actions by state officers in excess oftheir statutory authority applies only to actions seekingdeclaratory or injunctive relief, not to actions for moneydamages. When a plaintiff brings an action for money damagesagainst the state, he must proceed through the office of theclaims commissioner pursuant to chapter 53 of the GeneralStatutes, §§ 4-141 through 4-165. Otherwise, the action must bedismissed for lack of subject matter jurisdiction under thedoctrine of sovereign immunity.") (citing Miller v. Egan,265 Conn. 301, 313 (2003)). Finally, as Defendants also concede, theConnecticut Supreme Court in State v. Brocuglio, 264 Conn. 778(2003), explicitly stated (albeit in dicta) that "a victim of anillegal entry properly may file a civil action seeking adeclaratory judgment, injunctive relief or, in certaincircumstances, damages against the officers in their official orindividual capacity." Id. at 790 (emphasis added); seeDefs.' Mem. in Resp. [doc. #114] at 2. In view of the foregoing,Defendants all but admit that there are "controlling decisions ordata that the court overlooked [in its October 5 Ruling] —matters, in other words, that might reasonably be expected toalter the conclusion reached by the court." Shrader,70 F.3d at 257. It is appropriate, therefore, for the Court to reconsider theOctober 5 Ruling in this regard. Upon reconsideration, the Courtconcludes that Mr. Lopez's request to amend his complaint to addclaims arising from Defendants' alleged violations of Mr. Lopez'srights under Article First, §§ 4, 5, 7, 8, 9, 10, and 14 of theConnecticut Constitution is not barred by the mere fact that Mr.Lopez sued Defendants in their individual, as opposed toofficial, capacities. See Martin, 261 Conn. at 374;Brocuglio, 264 Conn. at 790; Prigge, 265 Conn. at 349. Havingreconsidered the October 5 Ruling, however, the Court nonethelessdenies Mr. Lopez's request to amend his complaint to assert apanoply of Connecticut constitutional claims for money damages.The Court reaches this conclusion because it is clear that Mr.Lopez is seeking to extend the narrow holding of Binette v.Sabo, supra, well beyond the limits established by theConnecticut Supreme Court in that case, and any decision to sosubstantially extend Connecticut constitutional law in thismanner should be made in the first instance by the courts ofConnecticut, not a federal court.
Binette created a narrow cause of action for money damagesunder the Article First, §§ 7 and 9 of the ConnecticutConstitution for illegal searches and seizures of private homesby police officers, a cause of action that is equivalent to thefederal Bivens action under the Fourth Amendment to theUnited States Constitution. See Binette, 244 Conn. at 47; see alsoBivens v. Six Unknown Named Agents of Federal Bureau ofNarcotics, 403 U.S. 388, 389 (1971) (A violation of a person'sFourth Amendment right to be free from unreasonable searches andseizures "by a federal agent acting under color of his authoritygives rise to a cause of action for damages consequent upon hisunconstitutional conduct."). In issuing that holding, theConnecticut Supreme Court "emphasize[d] that [its] decision torecognize a Bivens-type remedy in this case does not mean thata constitutional cause of action exists for every violation ofour state constitution." Binette, 244 Conn. at 47 (emphasisadded).
It remains to be seen, therefore, whether and to what extentConnecticut courts will build upon Binette, though this Courtis certain that by embracing Bivens, the Connecticut SupremeCourt did not intend broadly to sanction lawsuits for moneydamages under every provision of the Connecticut Constitution andin every circumstance. Cf. Hudson Valley Black Press v. IRS,___ F.3d ___, 2005 WL 1253410 (2d Cir. May 27, 2005) (refusing toextend Bivens to a private cause of action for damages underthe First Amendment); Dotson v. Griesa, 398 F.3d 156, 166 (2dCir. 2005) ("Because a Bivens action is a judicially createdremedy, however, courts proceed cautiously in extending suchimplied relief."). To the contrary, the Connecticut Supreme Courtexplained in Binette that [w]hether to recognize a cause of action for alleged violations of other state constitutional provisions in the future must be determined on a case-by-case basis. As in the present case, that determination will be based upon a multifactor analysis. The factors to be considered include: the nature of the constitutional provision at issue; the nature of the purported unconstitutional conduct; the nature of the harm; separation of powers considerations and the other factors articulated in Bivens and its progeny; the concerns expressed in Kelley Property Development, Inc. [v. Town of Lebanon, 226 Conn. 314 (1993)]; and any other pertinent factors brought to light by future litigation.Binette, 244 Conn. at 48.
In the teeth of this clear guidance in Binette, Mr. Lopezasks this Court to recognize a broad array of novel (and to thisCourt's reading, questionable) causes of action for money damagesbased on numerous provisions of the Connecticut Constitution, butwithout citing a single Connecticut case in the prison litigationcontext in which courts have undertaken the multifactor analysisdescribed in Binette and implied the causes of action Mr. Lopezseeks to pursue in this action.2 In fact, outside of the prison litigationcontext, the Connecticut Supreme Court has expressly rejectedmany of the state constitutional tort claims that Mr. Lopez seeksto assert in this action. See, e.g., ATC P'ship,251 Conn. at 612-17 (no private cause of action for damages under ArticleFirst § 8); Binette, 244 Conn. at 31-32 (no private cause ofaction for damages under Article First § 10). See also Ward v.Housatonic Area Reg'l Transit Dist., 154 F. Supp. 2d 339, 356(D. Conn. 2001) ("The court finds that there is no private causeof action for monetary damages under the equal protection and dueprocess provisions [Art. First, §§ 1, 8 and 20] of theConnecticut Constitution. In addition, the court could find noprecedent supporting a private cause of action under Article First, Section 2.") (citing KelleyProp. Dev., 226 Conn. at 339); Torres v. Armstrong, No.CV990427057S, 2001 WL 1178581, at *5-*7 (Conn.Super. Sept. 6,2001) (refusing to recognize prisoner plaintiff's claims formoney damages and injunctive relief brought directly under,inter alia, Article First, §§ 1, 4, 8, 9, 14 and 20 of theConnecticut constitution).
Thus, Mr. Lopez wants this federal court to recognize an entiresuite of novel Connecticut constitutional tort causes of actionfor state prisoners in the absence of any guidance from (and insome instances, in express defiance of) Connecticut decisionallaw. This Court will not entertain Mr. Lopez's request. Whenfaced with state law claims that "raise? novel and complexissues of state law," a district court, in its discretion, maydecline to exercise supplemental jurisdiction over such claims.According to the Second Circuit, "[a]lthough the doctrine ofpendent jurisdiction is one of flexibility and discretion, it isfundamental that `[n]eedless decisions of state law should beavoided both as a matter of comity and to promote justice betweenthe parties, by procuring for them a surer-footed reading ofapplicable law.'" Young v. New York City Transit Auth.,903 F.2d 146, 163-64 (2d Cir. 1990) (quoting United Mine Workers ofAmerica v. Gibbs, 383 U.S. 715, 726 (1966)). See also Sullivanv. Metro-North R.R. Co., 179 F. Supp. 2d 2, 6 (D. Conn. 2002)("Jurisdiction is also often declined to avoid construction of astate constitutional provision.") (citing Young,903 F.2d at 164). Furthermore, "[a] district court ought not `reach out for . . .issues, thereby depriving state courts of opportunities todevelop and apply state law.'" Young, 903 F.3d at 164 (quotingMayer v. Oil Field Systems Corp., 803 F.2d 749, 757 (2d Cir.1986)). See also Lajoie v. Conn. State Bd. of Labor Relations,871 F. Supp. 550, 554 (D. Conn. 1994) ("[I]t therefore appearsthat this hotly-disputed state law issue . . . is without stateprecedent or direction. For this court to decide such a novel and significant,but as yet unresolved, issue of state law would amount to no morethan a mere prediction of subsequent state law developments — `atentative answer which may be displaced tomorrow by a stateadjudication.'") (quoting R.R. Comm'n of Tex. v. Pullman Co.,312 U.S. 496, 500 (1941)).
Mr. Lopez's state constitutional claims are clearly novel, theyare complex, and they are not well developed under Connecticutlaw. In light of the Connecticut Supreme Court's explicitstatement in Binette that the Supreme Court did not intend tocreate a cause of action for money damages for every allegedviolation of the Connecticut state constitution, see Binette,244 Conn. at 47, and the fact that federalism and comity concernsstrongly suggest that recognition of new state constitutionaltorts should be determined on a case-by-case basis byConnecticut courts in the first instance, this Court willrefrain from exercising supplemental jurisdiction over all of Mr.Lopez's Connecticut constitutional claims (both those seekingmonetary damages and those seeking injunctive or declaratoryrelief). As the United States Supreme Court observed over twodecades ago in Pennhurst State Sch. & Hosp. v. Halderman,465 U.S. 89 (1984), [a] federal court's grant of relief against state officials on the basis of state law . . . does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.Id. at 106; see Smith v. Carrasco, 334 F. Supp. 2d 1094, 1099(N.D. Ind. 2004) ("[Plaintiff] is asserting state constitutionalclaims as they apply to convicted prisoners, on which there isapparently no state created precedent. Retaining this claim mayrequire the Court to embark on an interpretation of Indiana'sConstitution virtually unguided by state court precedent. As amatter of comity whether the acts in question violate Indiana'sConstitution are best left to the province of Indiana's statecourt judges. Pursuant to 28 U.S.C. § 1367(c)(1), this court willdecline to exercise supplemental jurisdiction over [Plaintiff's]Indiana constitutional claims, and will dismiss those claimswithout prejudice to his right to bring them in state court.")(internal quotations and citations omitted).
Accordingly, while the Court has reconsidered the October 5Ruling, the Court nonetheless denies Mr. Lopez's request to amendhis complaint to assert his state constitutional claims, withoutprejudice to his right to bring these claims in state court. In asupplementary brief, Mr. Lopez suggested that this Court certifythe question of whether Connecticut courts would recognize hisConnecticut constitutional claims for money damages. See Pl.'sThird Supplementary Rebuttal [doc. #95] at 1. Under Connecticut'sUniform Certification of Questions of Law Act, a district courtmay certify a question to the Connecticut Supreme Court where aquestion of Connecticut law is determinative of an issue in thepending litigation and there is no controlling precedent. SeeConn. Gen. Stat. § 51-199b; Israel v. State Farm Mut. Auto. Ins.Co., 239 F.3d 127, 135 (2d Cir. 2000) ("Connecticut law allowsfor the certification of questions of state law by the federalcourts directly to the Connecticut Supreme Court."). However, thedecision to certify a question of law to the Connecticut'shighest court is within this Court's discretion. See, e.g.,Minn. Mut. Life Ins. Co. v. Ricciardello, No. 3:96CV2387 (AHN),1998 WL 241216, at *2 (D. Conn. May 4, 1998); Hume v. HertzCorp., 628 F. Supp. 763, 767 (D. Conn. 1986). The Court declinesto exercise its discretion to certify these issues to theConnecticut Supreme Court in light of the fact that in this case,the better course is to allow these novel state constitutionalclaims to run their orderly course in the state courts bydeclining to exercise supplemental jurisdiction over them. Cf. BethphageLutheran Service, Inc. v. Weicker, 965 F.2d 1239, 1246-47 (2dCir. 1992) ("[W]e think [the certification] procedure is bestused for obtaining an authoritative state law ruling that affectsthe merits of a federal law suit, and should be used sparingly,if at all, merely to resolve a threshold issue that concerns onlywhether the suit must proceed in federal court. Rather thansubmit the challenge . . . directly to the Connecticut SupremeCourt, we think the sounder procedure is to . . . permit thelitigation to run its orderly course in the statecourts. . . .").
Mr. Lopez's second ground for reconsideration is that theOctober 5 Ruling failed to follow the Second Circuit's recentguidance regarding exhaustion of administrative remedies underthe PLRA. The Court notes at the outset that the dispute overwhether Mr. Lopez exhausted his administrative remedies regardingthe alleged August 31, 2001 incident is well-tread ground in thiscase, having been addressed by Chief Judge Chatigny both in hisRuling and Order dated September 22, 2003 [doc. #39] and in hisOctober 5 Ruling [doc. #104]. Normally, therefore, there would beno basis for this Court to re-litigate this issue on a motion forreconsideration. See Shrader, 70 F.3d at 257. However, thelegal landscape in the Second Circuit surrounding the exhaustionrequirements under the PLRA has shifted quite considerably inrecent months, and there are controlling decisions which mightreasonably be expected to alter the conclusion reachedpreviously. See id. Therefore, the Court will reconsider theexhaustion issue.
"It is now well-settled in this circuit that exhaustion underthe PLRA is not jurisdictional, and that it is an affirmativedefense." Ziemba, 366 F.3d at 163 (citing Richardson v.Goord, 347 F.3d 431, 434 (2d Cir. 2003); Jenkins v. Haubert,179 F.3d 19, 28-29 (2d Cir. 1999)). The Second Circuit recently issued five consolidated opinions —Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004), Abney v.McGinnis, 380 F.3d 663 (2d Cir. 2004), Giano v. Goord,380 F.3d 670 (2d Cir. 2004), Hemphill v. State of New York,380 F.3d 680 (2d Cir. 2004), and Johnson v. Testman, 380 F.3d 691(2d Cir. 2004) — which address the nature and scope of the PLRA'sexhaustion requirement. These five cases together established athree-part inquiry which district courts should use to analyzewhether a prisoner plaintiff — such as Mr. Lopez — has counteredan affirmative defense of failure to exhaust availableadministrative remedies as required by the PLRA,42 U.S.C. § 1997e(a). As stated in Hemphill, [d]epending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact "available" to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether "special circumstances" have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.Hemphill, 380 F.3d at 686 (internal citations and quotationsomitted). See also Abney, 380 F.3d at 667 ("To be `available'under the PLRA, a remedy must afford `the possibility of somerelief for the action complained of.'") (quoting Booth v.Churner, 532 U.S. 731, 738 (2001)). Of particular relevance tothis case is whether Mr. Lopez "claim[s] that estoppel bars theState's assertion of the exhaustion-defense," Ziemba,366 F.3d at 163-64, and whether "special circumstances" have beenplausibly alleged that would justify Mr. Lopez's failure tocomply with the prison's administrative procedural requirements. Though the record on the estoppel issue is somewhat confused,both sides appear to recognize that under Ziemba, "deliberateobstruction [of] access to the grievance system, if proven, canbe a grounds for estoppel against the enforcement [of theexhaustion requirements] of the PLRA." Defs.' Mem. in Opp'n [doc.#149] at 6 (citing Ziemba, 366 F.3d at 163). See also Pl.'sSupplementary Rebuttal [doc. #93] at 4 ("[P]laintiff asserts thatpursuant to the opinion of [Ziemba] . . . the defendants[should] be estopped from asserting the allegation of failure toexhaust as a defense and a jurisdictional bar."); Pl.'s SecondSupplementary Rebuttal [doc. #94], at 2 ("Hence, the defendantsought to be estopped from asserting any alleged PLRA grievancedeficiency consistent with [Ziemba]."). Both sides also appearto agree that Mr. Lopez sufficiently pleaded his estoppel claimin one or more of the many pro se and counseled complaints andamended complaints that he has filed in this case. See, e.g.,Defs.' Supplement to Mem. in Opp'n [doc. #92] at 1("[P]laintiff's proposed allegation — that he filed a grievancewith Captain Faneuff concerning his assault and abuse on August31, 2001, and that the existence of that grievance was laterdenied — . . . [is] contained in the proposed Second AmendedComplaint, as modified, dated March 30, 2004 at [¶¶ 24 & 26].Defendants submit that these same allegations were, in substance,contained in plaintiff's First Amended Complaint dated August 1,2002 at [¶¶ 9, 19, 38, 66, 67, 69, and ¶ 4 of both the Seventhand Eighth causes of action].") (internal citations omitted);Pl.'s Supplementary Rebuttal [doc. #93] at 3 ("[T]he plaintiff'sproposed second amended complaint, filed on April 1, 2004,asserts that his grievance concerning the August 31, 2001 attackupon him was suppressed by one or more of the defendantsthereby doing him injury.") (emphasis in original).
Therefore, the estoppel issues raised by Defendants' allegedsuppression of Mr. Lopez's grievance of the alleged August 31, 2001 incident are properlybefore this Court. According to Ziemba, consideration of aprisoner's estoppel claim "will require the court to look beyondthe pleadings and the documents attached to the pleadings," andthus this Court "must allow factual development and address theestoppel claim at the summary judgment stage." Ziemba,366 F.3d at 164. Further, in compliance with the Second Circuit'sconsolidated decisions in Ortiz, Abney, Giano, Hemphill, andJohnson, the Court will also allow for factual development ofwhether any special circumstances justify Mr. Lopez's failure tocomply with the administrative procedural requirements. SeeGiano, 380 F.3d at 676 ("[T]here are certain `specialcircumstances' in which, though administrative remedies may havebeen available and though the government may not have beenestopped from asserting the affirmative defense ofnon-exhaustion, the prisoner's failure to comply withadministrative procedural requirements may nevertheless have beenjustified."). This is not to say that Mr. Lopez will ultimatelybe able to present sufficient facts to survive a motion forsummary judgment regarding his attempts to grieve the August 31,2001 incident. Rather, at this stage and without a more fullydeveloped factual record, the Court cannot say that Mr. Lopez canprove no set of facts in support of his estoppel or specialcircumstances claims regarding the August 31, 2001incident.3 Thus, having reconsidered the October 5 Ruling, the Courtvacates its decision to dismiss Mr. Lopez's federalconstitutional claims under § 1983 based on the alleged August31, 2001 incident.
Mr. Lopez's third ground for reconsideration is that theOctober 5 Ruling overlooked his state law tort claim of batteryfor both the August 31, 2001 and the September 5, 2001 incidents.Upon closer inspection, Mr. Lopez is correct that hisSecond Amended Complaint [doc. #68] explicitly states a common law claimfor battery, see id. at ¶ 76, which was apparently overlookedin the October 5 Ruling. See generally Ruling and Order ofOctober 5, 2004 [doc. #104] at 4-5. Therefore, the Court willreconsider Mr. Lopez's state law battery claim.
Because Mr. Lopez has sufficiently pleaded a claim for batteryfor both the alleged incidents on August 31, 2001 and September5, 2001, and this tort claim is not barred by statutory immunityor the exhaustion requirements of the PLRA, the Court will allowMr. Lopez to pursue his state law battery claims for both theAugust 31, 2001 and September 5, 2001 incidents if he wishes topursue those state law claims in this Court. Furthermore, inlight of the fact that Mr. Lopez's § 1983 claims based on thealleged August 31, 2001 incident have returned to this case (atleast for now), the Court will also allow him to revive his statelaw tort claim of intentional infliction of emotional distress for the August 31,2001 incident if he wishes to pursue that claim in this Court.
Thus, Mr. Lopez has two viable state law tort claims —intentional infliction of emotional distress and battery — forboth the alleged August 31, 2001 incident and the allegedSeptember 5, 2001 incident. Nevertheless, in view of the factthat Mr. Lopez will now have to bring his Connecticutconstitutional tort claims in state court, the Court invites Mr.Lopez to consider whether it would be more sensible to pursue thestate common law tort claims in the same state court action.
Mr. Lopez has recently filed yet another Motion to Amend theSecond Amended Complaint [doc. #147]. In part, this latest motionto amend seeks the same result as his motions for reconsideration— that is, Mr. Lopez wishes to add claims arising out of theAugust 31, 2001 incident. These claims were addressed at lengthin Part II.B, supra, and need not be addressed again here.Thus, Mr. Lopez's most recent motion to amend his complaint [doc.#147] is denied as moot insofar as it seeks to assert claims andadd Defendants related to the August 31, 2001 incident.
However, Mr. Lopez's latest Motion to Amend [doc. #147] alsoseeks to add additional defendants and claims related to a newfactual incident — an alleged incident of retaliation primarilystemming from a news report on January 29, 2005 regarding Mr.Lopez's conversations with Michael Ross (a former inmate onConnecticut's death row). See id. at ¶¶ 70-93. "Leave to amendshould be freely granted, but the district court has thediscretion to deny leave if there is a good reason for it, suchas futility, bad faith, undue delay, or undue prejudice to theopposing party." Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2dCir. 2002) (citing Foman v. Davis, 371 U.S. 178, 182 (1962);Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 138(2d Cir. 2000)).
In considering Mr. Lopez's latest request to expand thislawsuit, the Court is influenced by the following facts: (1)these new claims are unrelated to the nucleus of factssurrounding the alleged August 31, 2001 and September 5, 2001incidents and would only create confusion should this caseeventually reach trial; (2) beginning a new round of discovery onthese unrelated issues would unfairly prejudice Defendants; and(3) allowing these new claims would cause undue delay in theresolution of Mr. Lopez's original claims, which, frankly, havebeen delayed far too long as it is. Thus, the Court denies Mr.Lopez's motion to amend his complaint [doc. #147] to assertclaims stemming from the January 29, 2005 news report, withoutprejudice to Mr. Lopez's right to pursue these claims in aseparate action. See, e.g., Stiller v. Colangelo,221 F.R.D. 316, 317 (D. Conn. 2004) ("[I]f the court finds that the issuesraised by the amendment are remote from the other issues in thecase and might confuse or mislead the jury, leave to amend maywell be denied.") (internal quotations and citation omitted). Asthe district court noted in Amaker v. Haponik, 198 F.R.D. 386(S.D.N.Y. 2000), [t]o allow [prisoner-plaintiff] to amend or supplement his complaint at this point would require the defendants to devote substantial additional resources to discovery and trial preparation and significantly delay the resolution of [prisoner-plaintiff's] current claims. Thus, the [prisoner-plaintiff's] motion to amend his complaint is likely to cause undue delay and must be denied for that reason.Id. at 390 (citing Block v. First Blood Assocs.,988 F.2d 344, 350 (2d Cir. 1993); State Teachers Ret. Bd. v. FluorCorp., 654 F.2d 843, 856 (2d Cir. 1981)). IV.
In summary, the Court issues the following rulings and orders:
(1) Mr. Lopez's Motion for Reconsideration [doc. #108] andSupplemental Motion for Reconsideration [doc. #109] are GRANTED.Having reconsidered the October 5 Ruling [doc. #104], the Courtdenies Mr. Lopez's motion to amend his complaint to raise stateconstitutional tort claims. Mr. Lopez's federal constitutionalclaims under § 1983 and state tort claims of intentionalinfliction of emotional distress and battery regarding both theAugust 31, 2001, and September 5, 2001 incidents shall remain inthe case, without prejudice to Defendants' future filing of amotion for summary judgment on any or all of these claims.
(2) The Court DENIES Mr. Lopez's Motion to Amend theSecond Amended Complaint [doc. #147].
(3) The Court DENIES AS MOOT Mr. Lopez's unopposed motion forextension of time [doc. #136].
(4) The Court VACATES its Referral [doc. #133] of Defendants'Motion for Protective Order and Motion to Quash [doc. #130] toMagistrate Judge Donna F. Martinez.
The Court understands full well that its rulings affect thenature of the claims and the possible defendants, discovery, andoverall schedule in this case. Furthermore, to its dismay, theCourt notes that the record in this case is chaotic, in no smallpart due to Mr. Lopez's counsel's repeated filing of successivesupplemental "mini-briefs" — a practice that this Court will nottolerate in the future. In order to try to bring this unruly caseunder some semblance of control, the Court hereby schedules anin-court status conference for July 19, 2005, at 3:00 P.M. Atthis conference, the parties should be prepared to discuss thefiling of a new amended complaint that reflects the Court's ruling, and the adoption of a new scheduleto complete discovery (if necessary) and to expeditiously movethis case towards its ultimate resolution. Mr. Lopez's counselshould be prepared to discuss whether Mr. Lopez's state tortclaims would be better brought in state court alongside his stateconstitutional claims, in light of this Court's decision todecline to exercise supplemental jurisdiction over his stateconstitutional claims. Furthermore, both parties should beprepared to discuss the still-pending Defendants' Motion forProtective Order and to Quash Subpoenas [doc. #130] and Mr.Lopez's Sealed Motion [doc. #138]. In preparation for thisin-court status conference, the parties are hereby ordered tofile with the Court a joint written status report by no laterthan July 14, 2005, in which they shall: (1) report on the stateof discovery in this case, including whether additional discoverymay be needed in light of the Court's ruling, and on whichspecific, narrowly-drawn issues; and (2) propose a new schedulefor the timely resolution of this case.
IT IS SO ORDERED.
1. The Court presumes that this quoted language is the portionof Martin cited in the October 5 Ruling. See Ruling and Orderof October 5, 2004 [doc. #104] at 3.
2. Though his state constitutional claims for money damagesunder Article First, §§ 7 and 9 are brought under the sameconstitutional provisions as asserted in Binette, Mr. Lopezcould point to no Connecticut case that allowed a prisoner toseek monetary damages under Binette for alleged physical abuseswhile in prison. In fact, the only reported Connecticut statecourt decision concerning a prisoner's constitutional tort claimsagainst his guards narrowly construed Binette and declined torecognize a prisoner's damages action under Article First, § 9because of the availability of an alternative remedy crafted bythe state legislature. See Torres v. Armstrong, No.CV990427057S, 2001 WL 1178581, at *7 ("The plaintiff may bring aclaim for money damages against the state under General Statutes§§ 4-141 through 4-165b by filing his claims with the claimscommissioner. . . . This court, therefore, declines to recognize[a] damages action? under the Connecticut . . . constitution?under the circumstances of this case."). Cf. Washington v.Meachum, 238 Conn. 692, 719-20 (1996) ("The text ofarticle first, § 7, contains no indication that the framers of ourconstitution intended it to provide greater protection of inmateprivacy rights than the fourth amendment to the federalconstitution. The texts of the two provisions are virtuallyidentical. There is nothing in the text of article first, § 7,that warrants an expansive view of its protection when applied toprison inmates."). As for Mr. Lopez's free speech claims broughtunder Article First, §§ 4, 5 and 14, the Court notes that whilethe Connecticut Supreme Court has recognized a private cause ofaction seeking declaratory or injunctive relief under theseprovisions, see, e.g., Leydon v. Town of Greenwich,257 Conn. 318, 333-34 (2001); Ramos v. Vernon, 254 Conn. 799, 811-12(2000); State v. Linares, 232 Conn. 345, 379-387 (1995), Mr.Lopez has cited no case in which a Connecticut state courtrecognized a similar constitutional tort claim for money damages.But see Downing v. West Haven Bd. of Educ., 162 F. Supp. 2d 19,22 n. 2 & 30-32 (D. Conn. 2001) (in a case where plaintiffexplicitly sought only money damages, court implicitly recognizedplaintiff's cause of action under Article First, §§ 4, 5 and 14of the Connecticut Constitution for money damages, yet granteddefendants summary judgment on these claims on other grounds).
3. In this regard, the Court notes that attached to one of Mr.Lopez's many filings is an October 25, 2001 "Inmate Request Form"from Mr. Lopez to (former) Defendant Lieutenant Manley, sent twomonths after the alleged August 31, 2001 incident and at leasteight months before Mr. Lopez filed this lawsuit. See Pl.'sSecond Supplementary Rebuttal to Defs.' Objection to Pl.'s April1, 2004 Second Am. Compl. [doc. #94], at Addendum I. This InmateRequest Form, which had not been previously produced in therecord before the Court, is a written complaint from Mr. Lopez toLt. Manley, which states as follows: Dear Lt. Manley, I have a huge dilema [sic], Capt. Fanueff, Griev. Coor., and the majors, keep ignoring my letters and request on the whereabouts of the level 1 & level 2 grievances on C/O Smiley coming in my cell during 3rd shift and assaulting me and my celly on 8-31-01, and I was hoping you can help me get relief of phone sanctions, so I can call my family. Please help me!Id. (emphasis in original). On November 2, 2001, Lt. Manleyresponded to Mr. Lopez, saying: "I understand your dilema[sic], you have to write Warden Myers for relief of yoursanctions." Id. While by no means dispositive of the issue,this document highlights the need for further factual developmentregarding Mr. Lopez's attempts to exhaust his administrativeremedies regarding the August 31, 2001 incident.