
    William J. MURRAY, Plaintiff, v. Brian FISCHER, Official Capacity, Defendant.
    No. 08-CV-6383L.
    United States District Court, W.D. New York.
    Oct. 24, 2011.
    William J. Murray, Auburn, NY, pro se.
    J. Richard Benitez, NYS Attorney General’s Office, Emil J. Bove, Jr., Office of New York State Attorney General, Rochester, NY, for Defendant.
   DECISION AND ORDER

DAVID G. LARIMER, District Judge.

INTRODUCTION

This action under 42 U.S.C. § 1983 was brought by William A. Murray, pro se, against a number of employees of the New York State Department of Correctional Services (“DOCS”), and one employee of the Department of Civil Service, alleging that during plaintiffs employment with DOCS as a substance abuse counselor, defendants retaliated against him in various ways because of plaintiffs exercise of his rights under the First Amendment to the United States Constitution.

On May 31, 2011, the Court issued a Decision and Order in this case (Dkt. # 108) granting defendants’ motion to dismiss plaintiffs claims against all the defendants other than DOCS Commissioner Brian Fischer, on the ground that since plaintiff only sought prospective, equitable relief, such relief could be obtained by means of an order directed against defendant Fischer in his official capacity. Thus, the Court concluded, “the claims against the defendants other than Fischer are redundant.” Dkt. # 108 at 1.

In that decision, I also stated that plaintiff had not responded to the motion to dismiss. Id. Plaintiff, however, has now filed a motion for reconsideration and for leave to amend (Dkt. # 110), in which he states that he mailed to the Court his response to the motion to dismiss on February 27, 2011, well before the March 16 deadline for filing that response, and that plaintiff cannot explain why that response was not received by the Court. Plaintiff also seeks leave to amend his complaint to add claims for damages, and to reinstate his claims against all the defendants, in both their individual and official capacities.

Defendants oppose plaintiffs motion, on the grounds that plaintiffs motion to amend is untimely, and that the Court’s May 31 decision was correctly decided. Defendants’ attorney also states on information and belief that it does not appear that a copy of plaintiffs response to defendants’ motion to dismiss was ever received by defendants or their counsel. Dkt. # 112 ¶ 7.

DISCUSSION

Two general principles are of particular relevance here. One is that “a court is ordinarily obligated to afford a special solicitude to pro se litigants.” Tracy v. Freshwater, 623 F.3d 90, 101 (2d Cir.2010) (citing Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). Another is that “[t]he rule in our circuit is to allow a party to amend its complaint unless the nonmovant demonstrates prejudice or bad faith.” City of New York v. Group Health Inc., 649 F.3d 151, 157 (2d Cir.2011) (citing AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir.2010)).

With respect to both those principles, the Second Circuit explained in Tracy that “[t]he solicitude afforded to pro se litigants takes a variety of forms. It most often consists of liberal construction of pleadings, motion papers, and appellate briefs. It is not, however, limited to this specific procedural setting. Rather, it also embraces relaxation of the limitations on the amendment of pleadings.” 623 F.3d at 101.

In the case at bar, I am not convinced that, had the Court received plaintiffs response to defendants’ motion prior to my decision, I would have ruled differently. Plaintiffs response focused on the individual defendants’ personal involvement in the alleged constitutional violations, and on whether the principles enunciated in Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), apply to this case. Those matters have no direct bearing on the issues presented by defendants’ motion to dismiss, which concerned the proper defendants against whom to seek prospective equitable relief from an arm of the state. I therefore find it unnecessary to decide whether plaintiff has shown that he did in fact attempt to file, and timely serve, a copy of his opposition to defendants’ motion to dismiss, prior to this Court’s May 31 decision.

For the first time, however, plaintiff also seeks leave to amend his complaint to assert a claim for money damages. While such relief is not available from the state, or from state defendants sued in their official capacities, see Kentucky v. Graham, 473 U.S. 159, 166, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985); Brown v. New York State Dept. of Correctional Services, 583 F.Supp.2d 404, 411 (W.D.N.Y.2008), damages are generally available in § 1983 suits against state officials in their individual capacities. See Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997); New Windsor Volunteer Ambulance Corps, Inc. v. Meyers, 442 F.3d 101, 122 (2d Cir.2006).

As stated, leave to amend a complaint should generally be granted, absent a showing of bad faith or unfair prejudice to the nonmoving party, or where the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); SCS Communications, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir.2004); Johnson v. University of Rochester Med. Ctr., 686 F.Supp.2d 259, 270 (W.D.N.Y.2010), appeal dismissed, 642 F.3d 121 (2d Cir.2011). I see no such impediments to amendment here.

While it would have been preferable for plaintiff to have presented such a claim earlier in this litigation, I again am mindful of plaintiffs pro se status. As a pro se litigant, plaintiff may not have fully understood or been aware of the distinctions between offieial-and individual-capacity suits, and the types of relief available in such suits, prior to the issuance of this Court’s May 31 Decision and Order. In addition, the defendants in question have been named in this litigation almost from its inception, and reinstatement of plaintiffs claims against them, in their personal capacities, would not unduly prejudice the defendants. See Alexandre v. Town of Hempstead, 275 F.R.D. 94, 97 (E.D.N.Y.2011) (“Mere delay, ... absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend”) (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981)); DuFour-Dowell v. Cogger, 969 F.Supp. 1107, 1111 (N.D.Ill. 1997) (granting leave to amend § 1983 complaint to add county sheriff in his official and individual capacities, since claims against sheriff were based on facts that were already at issue in suit); Doe v. Columbia University in City of New York, 165 F.R.D. 394, 397 (S.D.N.Y.1996) (finding no error in magistrate judge’s decision to allow plaintiff to amend her complaint to add a claim against defendant for punitive damages).

As explained in the Court’s May 31 decision, however, plaintiffs claims for prospective equitable relief can effectively be prosecuted against defendant Fischer in his official capacity. Wfiiile plaintiffs claims against the other defendants will be reinstated, then, those defendants may only be sued in their individual capacities, for money damages. If plaintiff does succeed in obtaining equitable relief, in the form of an injunction or declaratory relief, those defendants will be subject to the resulting equitable decree of this Court, regardless of the capacity in which they were sued.

CONCLUSION

Plaintiffs motion for reconsideration and for leave to amend (Dkt. # 110) is granted in part and denied in part. Plaintiffs motion for leave to amend his complaint is granted. The Clerk of the Court is directed to file plaintiffs proposed amended complaint (Dkt. # 110 at 21-30) as plaintiffs amended complaint. Plaintiffs claims against all the defendants other than defendant Brian Fischer are hereby reinstated, insofar as the amended complaint seeks money damages. In all other respects, plaintiffs motion is denied.

IT IS SO ORDERED. 
      
      . Plaintiffs original complaint named only New York State and DOCS as defendants. In November 2008, the Court dismissed those claims without prejudice, on the ground that they were barred by the Eleventh Amendment, and granted plaintiff leave to replead his claims against the relevant state officers. Dkt. # 8. Plaintiff’s amended complaint, seeking prospective equitable relief against defendants in their official capacities, was filed in December 2008. Dkt. # 9.
     