Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

HOOD v. CITY OF NEW YORK

June 19, 1990

WELLESLEY HOOD, PLAINTIFF,
v.
CITY OF NEW YORK, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William C. Conner, District Judge:

OPINION AND ORDER

Plaintiff Wellesley Hood brings this action pursuant to 42 U.S.C. § 1983 alleging deprivations of his eighth and fourteenth amendments rights. This action is currently before the Court on the motion of certain defendants to dismiss the amended complaint as barred by the statute of limitations and failing to meet the relation-back requirements of Rule 15(c), Fed.R.Civ.P. For the reasons stated below, defendants' motion is denied.

BACKGROUND

On October 7, 1986, plaintiff commenced this pro se action while he was an inmate at the Downstate Correctional Facility by filing a complaint pursuant to 42 U.S.C. § 1983 alleging that correction officers Alvin Whitfield and Henry Mack assaulted him in the Bellevue Hospital Prison Ward on January 8, 1986. Plaintiff named as defendants the City of New York ("City"), Mack and Whitfield.

Counsel was appointed for plaintiff on July 26, 1989. On January 17, 1990, plaintiff filed an amended complaint in which he added a claim asserting liability on an illegal pattern or practice theory under Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) against the City, and against two added defendants, Jacqueline McMickens, then-Commissioner of the New York City Department of Correction, and George Cruz, then-Commanding Officer of Bellevue Hospital Prison Ward. Plaintiff served McMickens and Cruz with the amended complaint in February 1990 and March 1990 respectively.

RELATION-BACK DOCTRINE

In New York, the statute of limitations applicable to a section 1983 action is three years. See Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 580-82, 102 L.Ed.2d 594 (1989); Pauk v. Board of Trustees, 654 F.2d 856 (2d Cir. 1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). Since the allegedly unconstitutional acts took place on January 8, 1986, the limitations period expired by January 8, 1989. Plaintiff's amended complaint, filed January 17, 1990, was therefore filed approximately one year after the limitations period had run.

Under Fed.R.Civ.P. 15(c), a claim or defense asserted in an amended pleading relates back to the original pleading if it arose out of the same conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. If this condition is met, under Fed.R.Civ.P. 15(c), an amendment adding a defendant to a complaint relates back to the original pleading date if the new defendant (1) has received such notice of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake in identity,*fn1 the action should have been brought against him. See Chimapan v. V.A. Hosp. at Montrose, 894 F.2d 557 (2d Cir. 1990). In order to apply the doctrine of relation back under Rule 15(c), the party to be added must have received notice of the action before the statute of limitations has run. Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986).

I. Cruz and McMickens

The added defendants Cruz and McMickens claim that plaintiff's amended complaint is time barred against them because plaintiff did not place them on notice of the action within the statute of limitations period, thereby causing them to be prejudiced in maintaining their defense. Cruz and McMickens further claim that even if they had notice of the action, they did not know that they should have been added as defendants in the action.

It is undisputed that Cruz and McMickens did not receive actual notice of this action before the statute of limitations expired. Plaintiff claims that because the Corporation Counsel has discretion to represent City and City agency employees in cases relating to their job-related actions and the responsibility to represent the City and City agencies, they received sufficient notice. This Court must therefore determine whether Cruz and McMickens can be charged with constructive notice of the action based on the knowledge of the Corporation Counsel.

Contrary to defendants' assertion, it is not required that Cruz and McMickens have actual notice of the action within the limitations period. A number of courts have held that "knowledge of a lawsuit can be imputed to a new defendant state official through his attorney, when the attorney also represented the officials originally sued." See Du Pree v. Walters, 116 F.R.D. 31, 34 (S.D.N.Y. 1987); Morrison v. LeFevre, 592 F. Supp. 1052, 1057-58 (S.D.N.Y. 1984); Davis v. Krauss, 93 F.R.D. 580 (E.D.N.Y. 1982). In Williams v. Ward, 553 F. Supp. 1024 (W.D.N.Y. 1983), for example, the district court held that the addition of the Commissioner of the Department of Correctional Services as a defendant, after the statute of limitations had run, related back to the original pro se complaint filed against two prison doctors and the superintendent of the prison because of the Attorney General's knowledge of the lawsuit.

The recent case of Gleason v. McBride, 869 F.2d 688 (2d Cir. 1989), however, requires an additional showing before an attorney's knowledge can be imputed to the new defendant. In Gleason, the Second Circuit Court stated, "[i]n 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 defendant would be added to the existing suit." Id. at 693. In determining whether such a showing had been made, the court framed the relevant inquiry as whether the attorneys "knew or should have known" that the additional defendants would be added within the statute of limitations. Id. The Gleason test makes the second requirement of Rule 15(c), that the defendant knew or should have known that the action should have been brought against him, a requirement for finding that the defendant can be charged with constructive knowledge of the lawsuit based on the knowledge of the attorney.

While the Assistant Corporation Counsel assigned to this case has submitted an affidavit stating that prior to January 8, 1989, he had no knowledge that any additional defendants would be added to the suit,*fn2 this Court determines that the Corporation Counsel should have known that the additional defendants would be added to the lawsuit. Plaintiff's original pro se complaint was made by filling out a standard prisoner's complaint form. Plaintiff named the City as a defendant in addition to naming the officers who allegedly ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.