Michael Johnson, Plaintiffv.The City of New York, Daniel A. Nigro, Michael Gala, Michael Curneen, Jake Lamonda, and John Joe or Jane Doe, Defendants
MEMORANDUM & ORDER Plaintiff Michael Johnson (“plaintiff”) commenced this action in November 2016 alleging violations of his constitutional and civil rights in connection with alleged workplace retaliation and disclosure of protected personal information, which resulted in derogatory media articles about plaintiff. On March 31, 2018, the court granted in part and denied in part motions to dismiss by defendants City of New York, Commissioner Daniel A. Nigro, Michael Gala, Michael Curneen (“Curneen”), and James Lemonda (“Lemonda”). See Johnson v. City of New York, No. 16-CV-6426(KAM)(VMS), 2018 WL 1597393, at *1 (E.D.N.Y. Mar. 31, 2018) (“Motion to Dismiss Order”). The court also granted plaintiff leave to replead certain claims, id. at *25, and plaintiff did so. (See Second Amended Complaint, ECF No. 87.)On May 12, 2018, plaintiff commenced a separate action in this district (the “Second Action”), which was assigned case number 18-CV-2842, and which is based on substantially the same occurrences as the instant action, against Paul Mannix (“Mannix”), Joseph Kearney (“Kearney”), and James McCarthy (“McCarthy”). (See Second Action Complaint, ECF/Second Action No. 1.)1Presently before the court is plaintiff’s motion to file a third amended complaint in this action, 16-CV-6426, naming Mannix, Kearney, and McCarthy as defendants. (“Motion to Amend,” ECF No. 108.) In support of his motion, plaintiff has submitted a memorandum of law (“Pl. Mem.,” ECF No. 109), which attaches various exhibits, including plaintiff’s proposed third amended complaint. (“Proposed TAC,” ECF No. 109-1.) Plaintiff has also submitted a reply memorandum. (ECF No. 110.) Defendants Mannix and Kearney oppose the motion, and have submitted an opposition memorandum. (“Opp.,” ECF No. 111.)For the reasons set forth below, the court GRANTS plaintiff’s Motion to Amend his complaint.BACKGROUNDI. General BackgroundThe court assumes familiarity with the factual allegations at issue in this action, as set forth in plaintiff’s first amended complaint and discussed in detail in the court’s March 31, 2018 order on certain defendants’ motions to dismiss. See Motion to Dismiss Order, 2018 WL 1597393, at *1-7.2 As relevant here, plaintiff alleges that following his participation in a class action lawsuit in this district (the “Class Action”), the Fire Department of the City of New York (“FDNY”) appointed plaintiff as a “priority hire” firefighter in compliance with the orders of the court in the Class Action. Id. at *2-4. Plaintiff further alleges that immediately upon his appointment he was subjected to humiliating, abusive, and exclusionary treatment by his colleagues and superiors. Id. at *4.The abusive treatment to which plaintiff alleges he was subjected reached a crescendo following plaintiff and his company’s response to a fire on April 2, 2015. Id. at *5. Plaintiff alleges that while he was at the scene of the fire, his oxygen gauge indicated that his air supply was running low, and he consequently went back to the fire truck to refill his oxygen tank. Id. When defendant Curneen, who was at the time the Captain of plaintiff’s Engine Company, learned that plaintiff had returned to the truck, he berated plaintiff for abandoning his post, expressing no concern regarding plaintiff’s oxygen tank. Id. On plaintiff’s next date on duty, Curneen, joined by others, continued berating plaintiff for “leaving his position,” and “abus[ed] plaintiff” until plaintiff left the station due to stomach pain. Id. (internal quotation marks omitted).Curneen characterized plaintiff’s stomach pain as “stress” and ordered plaintiff to undergo a psychiatric evaluation and undertake re-training at the FDNY Academy. Id. Under FDNY regulations, because of Curneen’s order to undergo a psychiatric evaluation, plaintiff was barred from returning from duty until he obtained a psychiatric clearance. Id. Plaintiff ultimately obtained clearance, and his re-training resulted in a finding that his abilities to perform as a firefighter were not deficient. Id.On the night of May 16, 2015, approximately three weeks after plaintiff’s return to duty, Curneen called plaintiff and told him that an article involving plaintiff would appear the next day in the New York Post. Id. The next day, the New York Post published an article with the headline “Firefighters Fear Colleague Who Routinely Flees Fires” (the “Article”) in its print and online editions. Id. The Article, which plaintiff has annexed to each complaint in this action (e.g., ECF No. 23-1), features a picture of plaintiff enlarged from an informal photograph of plaintiff’s Engine Company, as well as a photograph purportedly showing plaintiff outside a burning building. Motion to Dismiss Order, 2018 WL 1597393, at *5. According to the Article, the second of these photographs depicts plaintiff “at the curb next to an FDNY vehicle while fellow firefighters march up steps into a house engulfed in black smoke.” Id.The Article, citing “FDNY insiders” as its sources, also identifies plaintiff by name, refers to his status as a priority hire, and states that, according to sources, plaintiff “managed to evade the smoke and flames” on several occasions since his hiring. Id. It also states that “department members are afraid to openly complain or criticize plaintiff, who is Black” due to his status as a priority hire. Id. Further, the Article quotes FDNY “sources” who portray plaintiff as a safety risk and, based on disclosures about plaintiff’s medical and personnel file, reports that plaintiff “took several days of medical leave for stress” following the April 2, 2015 fire, and “several months’ medical leave after a fire in a six story apartment building in July of 2014.” Id.3According to plaintiff, the article resulted in his “full-throated media lynching” as an “Affirmative Action Firefighter,” in outlets including, but not limited to, The Daily Mail, frontpagemag.com, scallywagandvagabond.com, and breitbart.com. Id. at *6. These outlets also disparaged plaintiff, and internet postings based on the Article were met with racist comments and threats, including gossamer-thin suggestions that plaintiff should be killed. Id. The instant action followed.II. The Second Action and Motion to AmendPlaintiff initiated the Second Action, 18-CV-2842, by filing a complaint, naming Mannix, Kearney, McCarthy, and ten John Does as defendants, on May 12, 2018. (See Second Action Complaint, ECF/Second Action No. 1.) McCarthy answered the complaint on July 16, 2018 (ECF/Second Action No. 16), and Mannix and Kearney sought leave to move to dismiss in lieu of filing an answer. (See Mannix Pre-Motion Letter, ECF/Second Action No. 19; Kearney Pre-Motion Letter, ECF/Second Action No. 21.) At a pre-motion conference held on August 22, 2018 regarding Mannix and Kearney’s proposed motions to dismiss, the court asked plaintiff why he initiated a new action instead of moving to amend his complaint in the instant action. Plaintiff’s counsel indicated that the decision to initiate a new action was based on counsel’s view that a motion to amend might be opposed, and that the statute of limitations on plaintiff’s claims against Mannix, Kearney, and McCarthy might run prior to a ruling on a hypothetical motion to amend.The court suggested that plaintiff move to amend his complaint in the instant action, plaintiff agreed to do so, and the parties agreed that Mannix and Kearney’s requests for leave to file motions to dismiss would be withdrawn without prejudice to renewal, pending the outcome of plaintiff’s motion for leave to amend. (See August 22, 2018 Minute Entry in Second Action; August 22, 2018 Scheduling Order in Instant Action.) As contemplated by the court’s briefing schedule (see id.), plaintiff filed the Motion to Amend and supporting papers, including the Proposed TAC, on October 5, 2018.4As relevant to plaintiff’s motion, the Proposed TAC alleges that Mannix is an FDNY Deputy Battalion Chief, and Kearney is an FDNY firefighter. (Proposed TAC
