The opinion of the court was delivered by: KEENAN
JOHN F. KEENAN, United States District Judge:
Plaintiff brings this action under 42 U.S.C. § 1983 for personal injuries allegedly sustained while an inmate at Ossining Correctional Center.
Defendant moves for an order pursuant to Federal Rules of Civil Procedure 12(b) dismissing the third amended complaint on grounds of failure to state a claim upon which relief can be granted, insufficiency of process and failure to commence the action against defendants Jackson, Smith, Danziger and Kaufman within the applicable statute of limitations period.
In opposition to defendants' motion, plaintiff claims that the Court granted plaintiff leave to amend the pleadings to name defendants, previously included in the caption as "unknown employees", in an order dated November 19, 1985. According to plaintiff, the complaint was subsequently amended and filed well within the allowable time provision. In addition, plaintiff argues, defendants were served within the three year time provision of the applicable statute of limitations governing federal civil rights actions. Thus, plaintiff concludes, the suit against all new defendants was not time barred by the statute of limitations.
For the reasons stated below, defendants' motion to dismiss the third amended complaint is denied.
Plaintiff alleges that on March 31, 1983 while incarcerated at Ossining Correctional Facility, he was forced to commit sexual acts by four other inmates. Subsequent to the attack, plaintiff filed a pro se complaint on May 5, 1983 pursuant to 42 U.S.C. § 1983 against defendant Thomas Coughlin, III, Commissioner of Department of Correctional Services and Wilson Walters (who was incorrectly identified as Superintendent of Ossining) alleging that the attack resulted from a failure of prison officials to protect him from other inmates. Plaintiff secured counsel of his own choosing. An amended complaint was filed by plaintiff's attorney on June 5, 1984 clarifying the jurisdictional basis and the causes of action and adding as defendants Superintendent James E. Sullivan and unknown individuals. On October 19, 1984, a second amended complaint was filed in order to delete the allegation in the complaint referring to plaintiff's requested placement in protective custody.
On May 23, 1985, plaintiff moved for leave to amend the caption to include correctional officers from Ossining and medical personnel from various correctional facilities. The motion was granted and a third amended complaint was filed on October 28, 1985 alleging that the medical personnel at the correctional facilities did not provide adequate medical or psychiatric care subsequent to the rape and assault. The complaint included charges against an Officer Peterson, who was on duty before the alleged incident, and a Sergeant Robert Jackson who was on duty afterwards, stating that they had actual or supervisory responsibility for maintaining security and orderliness in "A" Block, where plaintiff was incarcerated. As a result of their failure to act, the complaint alleges, plaintiff was forced to commit sexual acts by four inmates. In addition, Coughlin and Sullivan (who had been named in the previous amended complaints) are alleged to be responsible for implementing rules and policies of the Department; for ensuring security in the institution and safety for inmates therein; and for providing proper medical and psychiatric treatment for inmates. Superintendent Sullivan has the additional responsibility according to plaintiff of ensuring that all correctional officers and their employees are properly trained to carry out their duties.
In this case the Court must determine the appropriate state statute of limitations for claims enforceable under 42 U.S.C. § 1983 when a state has not one, but two, personal injury statute of limitations.
Plaintiff and defendants agree that under Wilson v. Garcia, 471 U.S. 261, 105 S. Ct. 1938, 85 L. Ed. 2d 254 (1985), § 1983 claims are characterized as personal injury actions for statute of limitation purposes. New York, however, has two personal injury statutes: the three year period prescribed by New York C.P.L.R. § 214(5) governing personal injury claims based on negligence or strict liability and the one year period prescribed by C.P.L.R. § 215(3) that governs claims based on intentional torts. Wilson did not distinguish between intentional and negligent misdeeds under § 1983 and is silent with reference to what statute of limitations to choose when a state has two limitation periods for personal injury claims.
Plaintiff urges the court to apply the three year period prescribed by C.P.L.R. § 214(5). Plaintiff cites Pauk v. Board of Trustees of C.U.N.Y., 654 F.2d 856 (2d Cir. 1981), a pre-Wilson decision where the Second Circuit borrowed for § 1983 actions the three year statute of limitations, the reasoning being to promote the broad remedial purpose of § 1983.
Two lines of cases have been developed post-Wilson in various circuits as to the applicable statute of limitations in states with two personal injury statutes. The Eleventh Circuit in Jones v. Preuit & Mauldin, 763 F.2d 1250, 1264 (11th Cir. 1985), cert. denied, 474 U.S. 1105, 106 S. Ct. 893, 88 L. Ed. 2d 926 (1986) held that the intentional tort statute of limitations applied to § 1983 claims. Accord Mulligan v. Hazard, 777 F.2d 340, 344 (6th Cir. 1985), cert. denied, 476 U.S. 1174, 106 S. Ct. 2902, 90 L. Ed. 2d 988 (1986). The First Circuit held to the contrary and applied Maine's general statute of limitations for personal injury actions in Small v. The Inhabitants of Belfast, No. 85-1861, slip. op. (1st Cir. June 27, 1986), cited in Rodriguez v. Chandler, No. 86 Civ. 9749 (EW), slip op. at 9 n.11 (S.D.N.Y. Aug. 12, 1986).
In Rodriguez v. Chandler, No. 86 Civ. 9749 (EW), slip op. (S.D.N.Y. Aug. 12, 1986), Judge Weinfeld noted the conflict between the circuits when two personal injury statutes were available for borrowing purposes. Judge Weinfeld applied the three year general statute of limitations for personal injuries, N.Y. C.P.L.R. § 214(5), in order to effectuate the broad remedial purpose of § 1983. Judge Weinfeld stated that, although the Second Circuit has not reconsidered the issue since Wilson,
its only dictum on the subject indicates that in light of Wilson it would apply the general injury limitations period which the district courts have also been applying. See Villante v. Dep't of Corrections, 786 F.2d 512, 520 n.2 (2d Cir. ...