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August 20, 1984


The opinion of the court was delivered by: SOFAER



 Prisoners often file civil rights suits making implausible accusations that they were "framed" by prison guards or officials. This is one of those rare cases, however, in which a prisoner has succeeded in proving he was subjected to just such a violation of his constitutional rights.This case also provides a significant, albeit isolated, example of a prison leader whose protected activities account for the treatment he received in prison from malicious and indifferent officials.

 Plaintiffs Thomas and Madeleine Morrison brought this suit for monetary relief under 42 U.S.C. § 1983. Thomas Morrison alleges that on September 14, 1978, while he was a prisoner at the Green Haven Correctional Facility ("Green Haven"), some of the defendants "planted" contraband -- a vial of the fluorescent marking ink used to stamp the hands of visitors -- inside a battery recharger that his wife had brought to the prison for him. Following the "discovery" of the vial, Morrison was confined to segregated housing, transferred to Clinton Correctional Facility ("Clinton"), and confined in segregated housing there for an additional nine days without a hearing. Morrison claims that his segregation and transfer violated the due process clause; that the way in which he was treated while in segregation violated the Eighth Amendment's prohibition of cruel and unusual punishment; and that when he was transferred much of his property (including his legal papers) was confiscated and never returned. Morrison asserts that he suffered all these deprivations in retaliation for his jailhouse lawyering and persistent agitation for prison reforms.

 Madeleine Morrison alleges that, as a result of Deputy Superintendant Kennan's complaint to the State Police, she was falsely arrested and tried for promoting prison contraband. After two days of trial beforre a jury, all charges againsther were dismissed pursuant to C.P.L.R. § 170.55; on September 27, 1979, the court issued an order terminating the charges in her favor. Mrs. Morrison also claims she was cruelly and unusually punished by the manner in which her husband was treated, and by the premeditated maliciousness of her arrest.

 Plaintiffs filed their complaint on March 22, 1979; at that time, Mr. Morrison was still in prison, and they were without counsel. The original complaint named only Eugene S. Lefevre, Richard Hongisto, William Gard, Kevin McNiff, Arthur Leonardo, and J. E. Sullivan as defendants. On May 10, 1979, Mr. Morrison was released from prison. In response to plaintiffs' request for assigned counsel, the court appointed Dennis Lewitas, Esq., who accepted the case in early January 1980. Discovery proceeded slowly, in part because of counsel's other commitments, in part because of the nature of the charges made. On April 15, 1980, the plaintiffs were ordered to amend their complaint to conform it to the allegations made in their memorandum in opposition to defendants' motion to dismiss. Plaintiffs submitted an amended complaint on July 23, 1980, which added the following defendants, all of whom were employees of the New York State Department of Correctional Services: David Harris, Joseph Kennan, Daniel Senkowski, Frederick Royce, "John" Gilroy, and "John" Alston.

 Plaintiffs waived a jury, and when the trial began defendants' counsel moved to dismiss the case against most of the twelve defendants named. An exchange of views made clear that records in the defense's possession showed that plaintiffs had named some defendants who had nothing to do with their complaint but had failed to name others at least potentially implicated by the evidence.

 To avoid a miscarriage of justice, the court granted the plaintiffs' request for a continuance or alternatively a mistrial, on the express understanding that plaintiffs would be permitted further discovery and an opportunity to attempt to amend their complaint both to include defendants who the evidence suggested might have been involved in depriving them of their constitutional rights and to exclude those defendants who were not connected to their claims.

 Plaintiffs propounded interrogatories on March 10, 1982; the defendants responded on June 16, 1982. Through these interrogatories, and the discovery of duty roster lists, plaintiffs learned which officers of the six hundred working under Deputy Superintendant Kennan's control might have had contact with the package, including the officers who first discovered the vial of fluorescent ink, and the officer who charged Morrison with possession of marijuana, another item of contraband which Morrison claims was "planted."

 On October 7, 1982, plaintiffs filed a proposed amended complaint, dropping defendant Senkowski and adding fourteen defendants, all of whom were employees of the Department of Corrections at the time of the incident. The court accepted the second amended complaint, but deferred ruling on plaintiffs' request that the amendment be permitted to relate back to the time the original complaint was filed. Defense counsel objected to permitting the charges to relate back, arguing that the newly named defendants would be prejudiced by such a ruling, since the statute of limitations had run with respect to all of plaintiffs' claims before the second amended complaint was filed.

 Relation back of amendments is govered by Fed. R. Civ. P. 15(c), which allows the amendment to relate back to the date of the original pleading "[w]henever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. . . ." The claims the Morrisons raise in their second amended complaint meet this test: they allege roughly the same injuries as those alleged in their first amended complaint (which was filed within the applicable period of limitations); the only significant differences are that they explain precisely why the discovery of the vial of fluorescent liquid by itself deprived them of their constitutional rights and they name as defendants the officers actually responsible for the "plant."

 To add the defendants named by the second amended complaint, Rule 15(c) has two additional requirements. First, the Morrisons must show that the new defendants "Ha[ve] received such notice of the institution of the action that [they] will not be prejudiced in maintaining [their] defense on the merits. . . ." Second, they must show that the defendants "knew or should have known that, but for a mistake concerning the identity of the proper part[ies], the action would have been brought against [them]." These latter requirements concern notice and prejudice: were the new defendants sufficiently aware of the action during the period before the statute of limitations had run that they will not be prejudiced by now having to defend themselves?

 In this case, these requirements have been met. When a group of state officials are represented by the same lawyers -- as all the defendants, old and new, in this case are -- a court is entitled to find that the new defendants received constructive notice that satisfies Rule 15(c). See Kirk v. Cronvich, 629 F.2d 404, 407-08 (5th Cir. 1980); Florence v. Krasucki, 533 F. Supp. 1047, 1054 (W.D.N.Y. 1982); Mitchell v. Hendricks, 68 F.R.D. 564, 567 (E.D. Pa. 1975); Ames v. Vavreck, 356 F. Supp. 931, 942 (D. Minn. 1973). Moreover, the Morrisons' failure to name several of the most culpable defendants in their timely complaints was caused by those defendants' attempts from the outset of this episode to suppress the true facts about what occurred. In seeking to retaliate against an active jailhouse lawyer like Thomas Morrison, they knew that if he discovered their actions he would probably sue them.The state also slowed plaintiffs' discovery of the names of the responsible officers by making a meritless motion to dismiss, while withholding from pro se plaintiffs the evidence they needed in order to know against whom their complaint should have been addressed.Nor was any defendant prejudiced by the passage of time, in the sense contemplated by Rule 15. As the findings below show, these defendants' contemporaneous written statements alone provide a sufficient basis for finding them liable. The language of Rule 15(c) and the interests of justice therefore strongly support granting plaintiffs' motion.

 Trial on the second amended complaint began on January 17, 1983. After the evidence had been presented, the charges against defendants Jones and Alston were dismissed without prejudice, and those against defendants Lefevre, Hongisto, McNiff, McGuire, Royce, Bissonette, Grey, Miller, Rafaniello, and Valdes were dismissed with prejudice. Because the evidence suggested that the Morrisons had been framed, and because the claims raised complex legal questions, the parties were permitted post-trial briefing.

 Based on the findings and conclusions that follow, Thomas Morrison has established that he was confined to the Special Housing Units at Green Haven and Clinton and transferred from Green Haven to Clinton in violation of the due process clause. Madeleine Morrison has established that she was arrested and prosecuted for promoting prison contraband in violation of the due process clause. The Morrisons' other claims, involving direct violations of their First and Eighth Amendment rights because of inadequate medical treatment, a "mail watch," and denial of visitation privileges were not proven. Finally, the plaintiffs' claim concerning the loss of personal property following the transfer is properly viewed as a pendent state law claim over which this court declines to exercise jurisdiction.



 On January 3, 1972, plaintiff Thomas Morrison, a fifty-one-year-old black man, was convicted of second-degree murder and given a sentence of twenty years to life. At his criminal trial, Morrison claimed that the victim, Walter Boyd, had burglarized his home and threatened his common-law wife and their child; that upon returning home and discovering what had happened, he and a friend, Edward Davis, set off to find Boyd; that both Morrison and Davis were armed; and that, when they found Boyd, Davis killed him. Both Davis and Morrison had been indicted, but by the time of trial Davis had fled the jurisdiction. Morrison was prosecuted under alternative theories: either he had fired the murder weapon (his statement that he had been armed was admitted at trial) or he had aided and abetted Davis. The jury returned a general verdict of guilty. See Plaintiffs' Exh. 53.

 Morrison was initially sent to the Ossining Correctional Facility, a high-security prison. Two years later he was transferred to Clinton, and thereafter to Green Haven, a somewhat less high-security environment where he spent five years. While at Green Haven, Morrison obtained the help of an attorney whose efforts ultimately led to his release. Edward Davis was eventually arrested, tried, and convicted for the murder. At Davis' trial, an FBI agent testified that Davis had admitted having fired the gun that killed Boyd. Morrison moved for a new trial on March 10, 1976, but his request was denied. The next year, Morrison learned that a ballistics report made a week after the killing, showing that the bullet that killed Boyd had not been fired from Morrison's gun, had not been given to Morrison's trial lawyer, despite the attorney's Brady motion. Morrison made another motion for a new trial, on March 30, 1977, but this motion was also denied.

 Davis' conviction was reversed on appeal during the spring of 1977 because his confession was found inadmissible.On remand, he pled guilty to manslaughter and received a conditional discharge. Morrison's pro bono attorney, Robert Boehm, discovered this disposition sometime early in 1978, and decided to petition for federal habeas corpus relief. Boehm Tr. at 7-8.* Boehm filed the petition in late fall 1978, and immediately began negotiating with the Kings County District Attorney's office. In January or February 1979, they reached an agreement that the case would be remanded to state court and that Morrison's sentence would be reduced to one of 8 1/3 to 25 years. Boehm Tr. at 8; T. Morrison Tr. I at 3-4. Pursuant to this agreement, Morrison was resentenced, and then released in May 1979.

 Throughout 1978 and early 1979, Boehm was in frequent contact with both Thomas and Madeleine Morrison. During that period, he and the Morrisons were optimistic that the collateral attacks on Morrison's conviction would soon be successful. Boehm Tr. at 13-14; see Plaintiffs' Exh. 54.


 Madeleine Morrison, who is now fifty-four years old, met Thomas Morrison in August 1974 while he was incarcerated at Green Haven. They were married in November 1977. M. Morrison Tr. at 5-6.She visited her husband at Green Haven two to three times a week, and regularly brought him packages.Id. at 6-7.She seems a solid and deeply religious woman. She has worked steadily for over twenty years in the Post Office, and holds a position as supervisor (GS-15). Other than the charge involved in this case, she has never had any trouble with the law.

 Thomas Morrison was in many respects a model prisoner. In his March 28, 1978 letter recommending clemency for Morrison, defendant David R. Harris, the Superintendent of Green Haven, characterized Morrison as "a very talented and serious individual. . . . generally mindful of facility policy and regulations and . . . a very cooperative individual." Defendants' Exh. W. Since his release in 1979, he has never been accused of violating his parole, and he has maintained a job as a bus driver. T. Morrison Tr. I at 4-5.

 Until his alleged smuggling attempt, Morrison had never been accused of any threatening conduct. The only offenses contained in his seven-year prison record were for possessing some unauthorized items in his cell. See Defendants' Response to Plaintiffs' Interrogatories Nos. 1 & 3 (which, if they were not made part of the record at trial, are now admitted). His prison record otherwise reflects the confidence placed in him by prisoners and prison administrators alike. At Ossining, Morrison helped to establish an external degree program run by the State University and was selected by the inmates of his block to serve on the first inmate liason committee. T. Morrison Tr. I at 6. Defendant Gard, at the time a captain at Ossining, worked with Morrison on the inmate liason committee. At trial, Gard testified that he "never considered him to be an escape hazard or a particularly dangerous inmate. He did not rise, in my consciousness, that way." Gard Tr. at 14.

 After serving two years at Ossining, Morristown transferred, first to Clinton and then, six monts later, to Green Haven. His first job there was in the accounting office. T. Morrison Tr. I at 14-15. He was given positions of increasing trust and confidence. From 1976 until the episode that gave rise to this suit he was the deputy superintendent's "runner." Id. at 30. As a "runner," or messenger, Morrison had virtually free access to the entire east side of Green Haven. Id. at 32-34.

 Morrison also won the confidence of other inmates. He helped initiate a self-study program, id. at 15-16, a support program for inmates' families, id. at 16-17, and a special program called "Project House of Tomorrow," to help inmates serving long terms, id. at 17-18. He also served three terms on the inmate liason committee. Id. at 17. Finally, Morrison established a small retail jewelry business through the hobby shop. The ten percent markup he added to the wholesale price of the goods was contributed to an inmate "slush fund"; Morrison himself made no profit from the venture. T. Morrison Tr. III at 62-63.

 While Morrison behaved properly in prison, he also caused a lot of trouble. He was an active litigant and jailhouse lawyer. He filed some 30 to 50 pro se actions challenging conditions within the prison and alleged misconduct by prison guards. T. Morrison Tr. I at 24-26. In addition, he frequently aided other inmates in their own cases. Id. at 24. He testified without contradiction that Article 78 petitions he filed on behalf of other inmates, relative to sentencing, resulted in eleven of them being released from Ossining. Id. Perhaps Morrison's most significant case was Douglas v. Ward, Civ. No. 77-2559, in which Morrison and three other Green Haven inmates succeeded in overturning the Correction Department's practice of neither paying interest on prisoners' savings accounts nor allowing prisoners to deposit their money in outside interest-bearing accounts. See Plaintiffs' Exhs. 32, 32A; T. Morrison Tr. I at 19-21.

 These activities made Morrison well known among both the prisoners and the administration. Some members of the administration treated Morrison's activities as a "joke." T. Morrison Tr. I at 18. Keenan viewed him as a "mild irritant," Keenan Tr. II at 34, a "troublemaker," and a "two-by-four jailhouse lawyer," T. Morrison Tr. III at 21. The other inmates viewed him with respect. T. Morrison Tr. I at 21. All knew him well, and he was far too intelligent to plan an escape by using fluorescent ink to pass through the locked gates. His successes in court also gave him substantial and credible hopes in September 1978 of soon being released legally.

 Defendants suggest that Morrison planned to escape in September 1978, because his request for conjugal visits had recently been rejected. This claim is untenable. Morrison's letter to Deputy Commissioner McNiff requesting conjugal visits illustrates the humor, perspective, and constructiveness of Thomas Morrison's approach to the rigors of prison life. After Morrison learned that inmates at Green Haven were unable to participate in the visitation program he wrote McNiff:

 Upon inquiries further, by my wife, she has learned, not only of the criteria, locale and procedures to the program, but that inmates were transferred from one facility to those nearby for the thirty (30) hours. When the visitations were concluded the inmate was returned to his designated facility - "quite elated if I might add, big grin on my face." Just such an opportunity and privilege is precisely what I am certain the "Doctor" would prescribe right about now (smile). I know your [sic ] grinning at this letter Mr. McNiff, but seriously sir; recently, after quite a bit of problem and hassle, as I wrote and told you earlier, I was married to my "first" childs mother - it's a long story, but my wifes unreal, like determination beyond your wildest imagination; anyway, we would appreciate the privileges of this programs activites to better improve and strengthen our relationship, though I doubt very much if it could ever be actually broken again if you were to meet my wife Mr. Mc Niff.

 We do not meet the criteria wherein it is alleged to be designed to provide "Young" adults with a means and vehicle to retain family ties because we are both of the same age, and consequently considered as matured adults. But, if I may be candid here, like listen. When a man ceases to look, or fail to contain new ideas, then he's ready for the rocking chair - I like to think that we bow to youth, with grace and deep regards for our own to such an extent that we should not be marked off the calendar of living, loving humanbeings becaue of our age. Could you aid us here in some way? Whatever consideration you can extend to me in this matter would be deeply appreciated.

 In writing you this request for the considerations you will notice that I have taken the concern in such a degree as to copy officials of this facility as well, (would'nt [sic ] wish to incur anymore ire than necessary, rigjt? [sic ].

 Defendants' Exh. X. The plaintiffs' testimony and Morrison's record at Green Haven show that they were not the kind of people to undertake a plot like the one of which they were accused.


 In July 1977, defendant Joseph Keenan was appointed Deputy Superintendent of Security at Green Haven. Shortly afterward, Morrison's relations with the prison administration began to deteriorate. Morrison's first real encounter with Keenan involved a proposed list of visitors for a Jay Cee field day event, a group of which Morrison was a director at Green Haven. Keenan reacted negatively to the list, stating "Oh, I see you're HMIC [Head Man in Charge]." T. Morrison Tr. I at 55. Keenan disapproved the list, and told Morrison that "he had heard a lot about me and, you know, he was going to keep a close eye on me and et cetera, et cetera." Id. at 56. Keenan also changed Morrison's job status, making him block porter instead of the Deputy Superintendent's runner, soon after Morrison's victory in the law suit against Keenan and others for refusing to deposit inmate funds in interest-bearing accounts. Id. at 51. In August 1978, a few weeks prior to the incident involving the fluorescent fluid, Keenan called Morrison into his office and ordered him to stop selling jewelry through the hobby shop. Morrison told Kennan that he had been given permission by the package-room officer to bring in and sell the jewelry, but Keenan told him that the administration would confiscate the jewelry until Morrison decided what to do with it. Id. at 40-41. At that meeting, Morrison testified, Keenan also made the following proposal:

 [H]e said, "You have a pretty good job here."

 I said, "Yes, sir."

 He said, "Do you want to keep your job?"

 I said, "Certainly I want to keep my job."

 He said, "You know a lot of things about this facility. You get around quite a bit. And there are things that we need to know in security that you could perhaps inform us about. What do you feel about that?"

 . . . .

 . . . I said, "I can't do nothing like that. I have to consider where I am and what happens to me when you are through with me and you throw me back to the inmates. . . . From then on my whole life is segregation and isolation."

 Id. at 41-42. Keenan did not deny suggesting that Morrison become an informer:

 Q. Did you ever tell Tom Morrison that there was a drug problem that was well known in the institution and that he of all people, as a runner . . ., would be in an excellent position to be able to help you in your investigation of that drug problem?

 A. Not to my knowledge.

 Q. Not to your recollection?

 A. Not to my recollection.

 Q. Do you ever recollect Tom Morrison saying under no circumstances would he be a party to ...

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