OPINION AND ORDER
Pro se Plaintiff Rafael Ceara (“Plaintiff’) filed the instant Complaint pursuant to 42 U.S.C. § 1983 against New York State Department of Corrections and Community Supervision (“DOCCS”) Officer Joseph Deacon (“Defendant” or “Deacon”), alleging that Defendant subjected Plaintiff to excessive force when he pushed Plaintiff down several stairs, and then threatened Plaintiff to deter him from filing a grievance about the incident, in violation of his rights under the Eighth and Fourteenth Amendments of the United States Constitution. (See Am. Compl. (“Am. Compl.”) (Dkt. No. 7).) Before the Court is Defendant’s Motion to Dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Notice of Mot. to Dismiss (“Mot.”) (Dkt. No. 17).) This Motion asserts only that Plaintiffs Action is time-barred. For the following reasons, Defendant’s Motion is denied.
A. Factual Background
The following facts are drawn from Plaintiffs Amended Complaint and are taken as true for the purpose of resolving the instant Motion. On September 5, 2010 at approximately 11:21 a.m., Defendant “malieious[ly] and sadistically] used excessive force to push [Plaintiff, then an inmate at Downstate Correctional Facility in New York,] down several concrete stairs.” (Am. Compl. 2.) Other inmates witnessed the incident. (Id. at 3.) As a result of Defendant’s conduct, Plaintiffs knee was lacerated and he continues to suffer pain in his knee and back. (Id.)
Defendant and “other officers and sergeants” threatened Plaintiff to deter him from writing a grievance about the incident. (Id.) Plaintiff nonetheless filed a grievance about the incident and wrote to the superintendent and the state police, who “had the Inspector General investigate the matter ... [and] interview several other prisoner[ ] witnesses and [Plaintiff].” (Id. at 5.) After Plaintiff received an unfavorable response to his grievance, Plaintiff did not appeal the decision because he was not afforded an opportunity to do so. (Id. at 4.)
B. Procedural History
Plaintiff filed the original Complaint on August 22, 2013. (See Compl. (“Compl.”) (Dkt. No. 2).) The original Complaint named “Correctional Officer John Doe which [sic ] worked at Downstate Correctional] [F]ac[ility] on September] 5, 2010 on [sic] the 7[] a[.]m[.] [to] 3[] p[.]m[.] shift in D-Block, Complex 1” as the defendant. (Compl. 1.) Directly below the information provided about the Defendant, Plaintiff stated that he “wrote to [the] Inspector General for [the] full names and have had [sic] no respon[s]e.” (Id.) In parenthesis, Plaintiff noted “C[.]0. Deag-an, [h]e has old [sic] brother by same name.” (Id.) As “Defendant No. 1,” Plaintiff listed “John Doe (C[.]0. Deagan younger brother).” (Id.)
The Court issued an Order of Service pursuant to Valentin v. Dinkins,
Pursuant to a scheduling order entered after a pre-motion conference on June 16, 2014, (see Dkt. No. 15), Defendant filed the instant Motion to Dismiss, (see Mot.), and a memorandum of law in support of the Motion, (see Mem. of Law in Supp. of Def.’s Mot. to Dismiss (“Def.’s Mem.”) (Dkt. No. 18)); Plaintiff submitted a memorandum of law in opposition to the Motion, a grievance dated September 9, 2010, and a letter dated September 6, 2010, (see Mem. of Law in Supp. of Plaintiff from Def.’s Mot. to Dismiss (“Pl.’s Mem.”) (Dkt. No. 19)); and Defendant filed a reply, (see
II. Discussion
A. Standard of Review
The Supreme Court has held that although a complaint “does not need detailed factual allegations” to survive a motion to dismiss, “a plaintiffs obligation to provide the grounds of his [or her] entitlement] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly,
In considering Defendant’s Motion to Dismiss, the Court is required to consider as true the factual allegations contained in the Complaint. See Ruotolo v. City of New York,
B. Analysis
As noted, Defendant’s sole basis for seeking dismissal of the Action is that Plaintiffs Amended Complaint is time barred. Because •§ 1983 does not provide for a specific statute of limitations, courts apply the statute of limitations for personal injury actions under state law. See Hogan v. Fischer,
Here, Plaintiff alleges that Defendant pushed him down the stairs and threatened him on September 5, 2010. (Am. Compl. 2.) Accordingly, Plaintiff had until September 5, 2013 to file his suit. Although Plaintiff filed the original Complaint on August 22, 2013, two weeks before the expiration of the statute of limitations, he listed “Correctional Officer John Doe” as the defendant. Plaintiff did not identify Deacon by name until he filed the Amended Complaint on November 22, 2013. Defendant contends, therefore, that because “Deacon was not named as a defendant in this matter until after the three year statute of limitations expired, [the Amended Complaint] should be dismissed.” (Def.’s Mem. 1.)
Usually, “ ‘John Doe’ pleadings cannot be used to circumvent statutes of limitations because replacing a ‘John Doe’ with a named party in effect constitutes a change in the party sued.’ ” Hogan,
1. Plaintiff’s Claims are Untimely under Fed.R.Civ.P. 15(c)(1)(C).
“Rule 15(c)(1)(C) provides the federal standard for relation back.” Hogan,
(1) the claim must have arisen out of conduct set out in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and ... [4] the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and ... the original complaint [was] filed within the limitations period.
Hogan,
2. Plaintiffs Claims are Timely under Fed.R.Civ.P. 15(c)(1)(A).
An amended pleading relates back pursuant to Fed.R.Civ.P. 15(c)(1)(A) when “the law that provides the applicable statute of limitations allows relation back.” Fed.R.Civ.P. 15(c)(1)(A). In applying Rule 15(c)(1)(A), courts are “to look at the entire body of limitations law that provides the applicable statute of limitations.” Hogan,
A party who is ignorant, in whole or in part, of the name or identity of a person who may properly be made a party, may proceed against such person as an unknown party by designating so much ofhis name and identity as is known. • If the name or remainder of the name becomes known all subsequent proceedings shall be taken under the true name and all prior proceedings shall be deemed amended accordingly.
N.Y. C.P.L.R. § 1024. As the Second Circuit has recently held, CPLR § 1024 is in fact more forgiving in relating back complaints in the John Doe context. See Hogan,
As an initial matter, a plaintiff may not designate a party’ as “John Doe” under § 1024 if he has actual knowledge of the party’s identity. See Deutsche Bank Nat. Trust Co. v. Turner,
Under CPLR § 1024, a plaintiff may substitute a named party for a John Doe party nunc pro tunc if the plaintiff meets two requirements. Hogan,
Here, as mentioned, Plaintiff noted in his original Complaint that he “wrote to [the] Inspector General for [the] fall names and ... had no respon[s]e.” (Compl. 1.) In his opposition papers, Plaintiff again explained that in the original Complaint he “named defendant as John Doe due [sic ] that [P]laintiff wrote to Inspector General Todd Thomas and received no response.” (Pl.’s Mem. 1.) Accordingly, this is not a case where “[n]oth•ing before the [c]ourt indicates that [Plaintiff] took any steps to ascertain [Defendant’s] identitfy].” Vasconcellos,
Defendant contends that Plaintiff cannot show the due diligence that CPLR § 1024 requires because “[P]laintiff knew in substantial part ... [Defendant’s identity at the time of the incident but did not identify him within the next three years.” (Def.’s Reply 3 n. 1.) To support this assertion, Defendant relies on a grievance that Plaintiff attached to his opposition papers. The grievance is dated September 9, 2010, four days after the alleged incident occurred, and names “C[.]0. Deagan” as the officer that pushed Plaintiff down the stairs. (See Pl.’s Mem. unnumbered attachment 1.) Plaintiff also attached a letter to his opposition papers to “ADA Perez Sup-erint[e]nd[e]nt” dated September 6, 2010, one day after the alleged incident occurred. In the letter, Plaintiff writes that he was “push[ed] and hit in [the] back by Officer Deagan,” and “C.Ó. Deagan” threatened him after he returned from the nurse. (See id. 3, 5.)
The Court is skeptical of Defendant’s invitation to rely on the grievance and letter to draw an inference against Plaintiff at the motion to dismiss stage. Courts have held that it may be appropriate to consider materials outside of the Complaint in the pro se context, see Alsaifullah,
Assuming, arguendo, that it is appropriate to consider the grievance and the letter, the Court rejects Defendant’s conclusion that in light of these documents “it seems that [the due diligence] standard could not be satisfied.” (Def.’s Reply 3 n. 1.) Rather, the documents may be read to support Plaintiffs statement in his original Complaint that he did not know Deacon’s “full name[].” (Compl. 1) (emphasis added). Indeed, Plaintiff refers to Defendant in the grievance and the letter as “Deag-an” and in the original Complaint as “C[.]0. Deagan [sic] younger brother.” Rather than conclusively establish that Plaintiff did not exercise due diligence in identifying Defendant, the documents suggest that Plaintiff did not know Defendant’s full name, and therefore, at the very least, there is an “issue of fact as to whether [Plaintiff] exercised due diligence in attempting to identify and serve [Defendant].” Lepore,
Plaintiff also satisfies the second requirement of § 1024. As an initial matter, the Court notes that Defendant has not addressed whether the original Complaint sufficiently notified him that he was the intended defendant. See Vallade v. Fischer, No. 12-CV-231,
Officer John Doe (C.O. Deagan) went to [Plaintiffs] cell (cell 8) in D-Block because they had called medication and [Plaintiffs] cell was not unlocked for [him] to go, [sic ] [h]e started hitting and pushing [Plaintiff] down the inside stair and kicking [Plaintiffs] boots as to cause [Plaintiff] to fall, other inmates were present inside ... watching t.v. [sic ] ... when he preceded [sic ] to hit and push [Plaintiff] using excessive force all the way outside the Housing Block he pushed [Plaintiff] with more force down the stair in front of D-Block.
(Compl. 3.) This provided sufficient information about Defendant. See Maurro,
III. Conclusion
In light of the foregoing analysis, the Court denies Defendant’s Motion to Dismiss. The Clerk of Court is respectfully requested to terminate the pending Motion. (Dkt. No. 17.)
SO ORDERED.
Notes
. In Valentin v. Dinkins, the Second Circuit held that a pro se litigant is entitled to assistance from the district court in identifying a defendant.
. Pursuant to New York Civil Practice Law and Rules ("CPLR”) § 306-b, once a John Doe complaint is filed, a plaintiff must serve it on the correct defendant "within one hundred twenty days after the commencement' of the action.” N.Y. C.P.L.R. § 306-b. See Vasconcellos v. City of New York, No. 12-CV-8445,