U.S. DISTRICT COURTSOUTHERN DISTRICT OF NEW YORKMagistrate Judge EllisI. INTRODUCTIONPlaintiff Jai David Ortiz a/k/a Jayson Torres (“Torres”) filed a complaint on December 15, 2003, pursuant to 42 U.S.C. §1983, alleging violation of his constitutional rights under the Fourth, Sixth, and Fourteenth Amendments. He named as defendants the City of New York (“City”), Detective Alfred Schille (“Schille”), and Detective Robert Suschinski (“Suschinski”). Before the Court is Torres’s motion for leave to file an amended complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to add the New York County District Attorney’s Office (“DA’s Office”), and Assistant District Attorney Dafna Yoran (“Yoran”). For the reasons that follow, plaintiff’s motion to amend is DENIED.II. BACKGROUNDOn August 25, 1999, Torres was arrested for a burglary at 123 Bowery Street in the in the County and State of New York. See Compl. App.,1 (“Criminal Ct. of the City of N.Y.”), at 1, Torres contends that Schille and Suschinsky entered his room without a warrant, seized him, and forced him out of the room. Compl. ¶4. In early September 1999, he was arrested for a different occurrence, and charged with robbery. Compl. App., (“Decision & Order”), at 1. Torres was indicted on both the burglary and the robbery arrests. Id. On February 13, 2001, Torres was convicted on the robbery indictment, and sentenced to ten years incarceration. Id. On April 4, 2001, the burglary indictment was dismissed. Id.Torres’s complaint, dated December 15, 2003, was received in the Pro Se Office on December 23, 2003, and docketed on February 17, 2004. He named as defendants the City, Schille, and Suschinsky, and seeks damages pursuant to 42 U.S.C. §1983 for deprivation of rights under the Fourth Amendment because the officers entered his room without a warrant, under the Fourteenth Amendment for false arrest, and under the Sixth Amendment for failing to tell him the reason for his arrest. See Compl. ¶4. On June 14, 2004, defendants filed their answer. On October 26, 2004, Torres filed the instant motion to add Yoran and the New York County District Attorney’s Office, her employer, as defendants. See Plaintiff’s Request to Court (“Pl. Req.”), Exh. 3 at 6. He contends that Yoran (1) gave advice to the police on the day he was arrested, (2) pressured a civilian witness to swear to false statements in a grand jury proceeding, (3) presented fraudulent charges to the grand jury, and (4) suppressed evidence to the grand jury. See id. at 9.Defendants maintain that Torres’s proposed amendment is futile because: (1) it is barred by the applicable statute of limitations; (2) it does not relate back to the date of the original pleading; and (3) the New York County District Attorney’s Office and Assistant District Attorney Yoran are entitled to absolute immunity from liability. See Defendants’ Response to Plaintiff’s Request to Amend His Complaint (‘Def.’s Resp.”), ¶¶9, 12.III. DISCUSSIONA. Statute of LimitationsLeave to amend “shall be given freely when justice so requires. “FED. R.Civ.P.15(a), Rule 15 permits amendment when: (1) the party seeking amendment has not unduly delayed; (2) the party seeking amendment is not acting in bad faith or with dilatory motive; (3) the amendment would not cause undue prejudice to the opposing party; and (4) the amendment is not futile. Forman v. Davis. 371 U.S. 178, 182 (1962).Defendants contend that Torres’s amendment is futile because the claims against Yoran are time-barred. Torres seeks to justify his delayed action by arguing that while he felt that his constitutional rights had been violated, he did not realize the degree of the violation until later. He argues that his malicious prosecution claim did not begin to accrue until Yoran filed to dismiss his indictment on April 4, 2001, and that he began discussing his claim with defendants counsel in August 2004. See Plaintiff’s Reply to Defendant’s November 12, 2004 Request (“Pl. Repl.”), at 3. Because the statute of limitations for §1983 claims is three years, see Morris v. NYC Police Dept., 2003 WL 943780., at *1 (2d Cir. Mar. 11, 2003), defendants argue that even if Torres is correct about April 2001 starting date, his claim expired in April 2004, and he did not file the instant action until October 26, 2004. See Def’s Resp., at 2. This Court agrees. Under federal law, claims begin to accrue when the plaintiff knows or has reason to know of the injury which is the basis of his action. For a claim of malicious prosecution, the time begins to run when the underlying criminal proceedings are conclusively terminated. Alvarez v. Doe. 2004 WL 1874972, at *3 (S.D.N.Y. Aug. 13, 2004). At least by April 4, 2001, Torres had reason to know of his claim. The statute of limitations, therefore, ran on this claim as of April 4, 2004. See Tapia-Ortiz v. Doe, 171 F.3d 150, 152 (2d Cir. 1999). Accordingly, Torres’s proposed amendment is untimely.B. Relation BackWhen the statute of limitations would otherwise bar an amendment, Rule 15(c) allows the claim if it “relates back” to the original complaint. See FED.R.CIV.P. 15(c)(3); Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996), Under Rule 15(c), a claim against a new defendant relates back to the original claim if: (1) the new claim arises out of the same conduct, transaction or occurrence set forth in the original pleading; (2) the new party has received notice of the action such that it will not be prejudiced in its defense; (3) the new party knows or should have known that, but for a mistake concerning the identity of the party, the action would have been brought against the party; and (4) the second and the third criteria must have been fulfilled within the 120 days of the filing of the original complaint. See FED.R.CIV.P. 15(c); Soto, 80 F. 3d at 35-36; Barrow v. Wethersfield Police Dep’t. 66 F.3d 466, 468-69 (2d Cir. 1995), modified on other grounds, 74 F.3d 1366 (2d Cir. 1995). A “mistake in identifying a defendant occurs for purposes of Rule 15(c) when it is the result of “misnomer or misidentification,” or when a plaintiff omits the individual defendant altogether thinking that suing a department will suffice. Barrow, 66 F.3d at 469. Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. Id. at 470.Torres contends that his claim relates back to the original complaint because Yoran’s name was mistakenly omitted out of confusion. See Pl. Repl., at 3. Defendants argue that Torres’s amended complaint does not relate back to the original complaint because Yoran will clearly be prejudiced by the delay since Torres did not notify her until October 26, 2004, well beyond the 120 day period allowed in Rule 15(c).Torres meets the first element for relating back, as the proposed amendment arises out of the same event alleged in the original complaint. Torres, however, has fatal problems as to the other elements. Yoran did not receive notice within 120 days, and had no reason to know that an action would be brought against her. Even if the Court credits Torres’s claim that he tried to consult with defendants’ counsel about amending his complaint in August 2004, this was already beyond the time limit. Furthermore, Yoran and the District Attorney’s Office were not misidentified or misnamed in the original complaint; they had not been identified by Torres. Therefore, Torres did not make a mistake within the meaning of Rule 15(c)(3), and did not meet the third requirement. Barrows. 66 F.3d at 469. Accordingly, Torres’s motion to amend does not relate back to his original complaint.C. Immunity from LiabilityEleventh Amendment immunity bars suits against a state official acting in his official capacity. See Alvarez v. Doe. 2004 WL 1874972, at *4. Because the District Attorney’s Office is acting as an official of the State of New York when it enforces the penal law, it is entitled to absolute immunity from suit under §1983, Baez v. Hennessey 853 F.2d 73, 77 (2d Cir. 1988). Furthermore, the doctrine of absolute prosecutorial immunity bars suits against a state prosecutor when her actions are “intimately associated with the judicial phase of the criminal process such as initiating a prosecution and presenting the case at trial.” Imbler v. Pachtman, 424 U.S. 409, 430-431 (1976). Moreover, prosecutors are entitled to immunity from suit under §1983 for alleged prosecutorial misconduct, including falsification of evidence and coercion of perjured testimony in connection with criminal prosecutions. Lee v. Williams, 617 F.2d 320, 322 (2d Cir. 1980); Dory v. Ryan. 25 F.3d 81, 83 (2d Cir. 1994). Prosecutors are also entitled to absolute immunity when the advice to the police concerns prosecutorial matters such as reviewing the available evidence, informing the police of its sufficiency, and drafting a criminal complaint Jenkins v. City of New York. 1999 WL 782509, at *13 (S.D.N.Y. Sept. 3, 1999).When prosecutors undertake conduct that is beyond the scope of their litigation-related duties and perform functions normally associated with a police investigation, they are still entitled to qualified immunity. Fox v. City of New York. 2004 WL 856299, at *11 (S.D.N.Y. Apr. 20, 2004), citing Buckley v. Fitzsimmons. 509 U.S. 259, 273 (1993). Giving advice to the police during the investigation phase is such an activity. Burns v. Reed. 500 U.S. 495-496 (1991).Torres alleges two claim against Yoran: 1) giving legal advice to the police on August 25, 1999, the date of his arrest; and 2) maliciously prosecuting him by presenting fraudulent charges and suppressing evidence in a grand jury proceeding. See PL’s Req., ¶14(a). Yoran claims that she merely performed her prosecutorial duties when she was present at the precinct on August 25, 1999, preparing some documents regarding the incident. Yoran contends that even if Torres could provide sufficient evidence to support his claims, as a matter of law, prosecutors are absolutely immune from §1983 liability because the alleged acts are intimately associated with the judicial phase of the criminal process. Yoran argues that actions such as initiating a prosecution, appearing before grand juries, and presenting the case at trial are part of her prosecutorial functions, and therefore, she is absolutely immune from Torres’s malicious prosecution claim. She argues further that she is at least entitled to qualified immunity for giving advice to the police.Besides the assertion, Torres does not describe the content of advice that Yoran allegedly gave the police on August 25, 1999, and therefore, is merely speculating that Yoran gave advice to the police regarding his arrest. In any case, because Torres was already arrested when he saw Yoran at the precinct, Yoran’s advice does not concern the decision to arrest Torres; and, it was not investigative. Yoran was performing a prosecutorial function and is entitled to absolute immunity.Accordingly, plaintiff’s request for leave to file an amended complaint against Yoran and DA’s Office is DENIED.1. Petitioner has attached as “Appendix 1″ to his complaint a series of documents related to his arrest, including statement by arresting officers, the state’s bill or particulars, and ruling by the trial court. References to this section are designated “App.” and the documents are further identified parenthetically.
