Patrick R. SMITH, Plaintiff-Appellant, v. Correction Officer GOTTLOB, Defendant-Appellee, 518 F. App'x 41

SUMMARY ORDER Patrick Smith appeals from a judgment of the 'district court denying him leave to file a Second Amended Complaint. We assume the parties’ familiarity with the underlying facts and history of the case, as well as the issues on appeal. Although the notice of appeal did not specify the orders appealed, we have jurisdiction in this case. See SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172, 178 (2d Cir.2000) (“[A] notice of appeal from a final judgment brings up for review all renewable rulings which produced the judgment.” (internal quotations omitted)).

Smith sought leave to add a claim pursuant to Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The district court did not abuse its discretion in denying leave because the claim would cause undue prejudice to Defendants. See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). Moreover, the claim would be futile. See Milanese v. Rush-Oleum Corp., 244 F.3d 104, 110 (2d Cir.2001).

In the absence of a viable claim that Westchester officials used excessive force against Smith, Smith is unable to state a claim based upon a municipal policy or custom endorsing the use of excessive force. The district court was also within its discretion in denying Smith leave to amend the complaint to add Corrections Officer Holmes as a defendant. The district court did not err in distinguishing “John Doe” cases in which plaintiffs broadcast their continued quest to identify the party who allegedly wronged them.

Although knowledge of the lawsuit can be imputed to Holmes’s attorneys, they could not reasonably have known that Smith intended to sue Holmes. See Gleason v. McBride, 869 F.2d 688, 693 (2d Cir.1989) (“In order to support an argument that knowledge of the pendency of a lawsuit may be imputed to a defendant or set of defendants because they have the same attorney(s), there must be some showing that the attorney(

s) knew that the additional defendants would be added to the existing suit.”). Smith litigated vigorously against the initial defendants, lost, and now seeks to try his luck against someone new; the district court did not abuse its discretion in denying him this opportunity. Smith v. Westchester Cty. Dep’t of Corrections, 2012 WL 527222 at *6 (S.D.N.Y. Feb. 15, 2012). We have considered all of Smith’s arguments and find them to be without merit. For the reasons stated above, the judgment of the district court is AFFIRMED.