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