The attack took place while Byrd and his assailant were under the watch of Officer Hults. Hults was stationed at the "C post" in order to observe the recreation room. Hults left his post in order to relieve the correction officer stationed at the "A post" so that the officer could take a "personal" to go to the restroom. The recreation room is visible from the A post, but Hults was not watching Lower 3 through the windows of the booth.
Byrd filed a complaint pursuant to § 1983 based on this attack. This initial complaint named as defendants the Commissioner of the New York City Department of Correction, the Warden and Deputy Warden of Riker's Island, the Mayor of New York City, and "John Doe," a Correction Officer. The complaint was amended on December 15, 1993, ("First Amended Complaint"), to name the Commissioner, the Mayor, and "John Doe", a Correction Officer as defendants. On September 16, 1993, the parties stipulated to extend the defendants' time to answer the complaint until October 16, 1993. Corporation Counsel filed an answer on behalf of the Supervisory Defendants at that time.
In January of 1994, plaintiff's counsel began attempts to discover the name of the John Doe defendant officer. First she verbally requested disclosure of the officer's identity. Upon being informed that Corporation Counsel was unaware of the officer's name, plaintiff's counsel requested log books in order to discover who was on duty at the time the plaintiff was assaulted.
Corporation Counsel refused to make any disclosure or to turn over records until either Byrd agreed to bifurcate the trial or bifurcation was determined by motion to the Court. The Court issued an order of bifurcation on June 30, 1994. Discovery regarding municipal liability was stayed pending the outcome of the claims against the individual officer. Despite the resolution of the bifurcation issue, Corporation Counsel did not reveal the name of the individual officer, nor turn over log books, as had been requested by plaintiff's counsel.
On November 12, 1994, Byrd served Corporation Counsel with a Notice of Deposition for the "John Doe" Correction Officer to be held on December 6, 1994. The deposition did not take place. On January 3, 1995, plaintiff's counsel reminded Corporation Counsel of the need to conduct a deposition, and to learn the identity of the officer. Corporation Counsel promised to produce the correction officer in February. Finally, on January 12, 1995, Corporation Counsel revealed the officer's name and stated that Corporation Counsel would accept service on his behalf.
On February 27, 1995, plaintiff's counsel served Hults. On March 21, 1995, Hults served his answer upon plaintiff asserting only two defenses: failure to state a claim upon which relief can be granted and qualified immunity.
According to Hults, the statute of limitations defense is available because Byrd's Second Amended Complaint was filed and served after the statute of limitations had run. Hults contends that the Second Amended Complaint does not relate back to the original complaint because the requirements set forth in Fed. R. Civ. P. 15(c) are not met.
Hults also asserts that his motion to amend satisfies the requirements of Rule 15(a): the amendment has not been unduly delayed, will not prejudice the plaintiff, is not requested in bad faith, and, most significantly, is not futile. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962).
Because the Second Amended Complaint does in fact relate back to the original complaint, the statute of limitations defense is unavailable, such an amendment would be futile, and Hults' motion to amend is therefore denied.
a. Statute of Limitations for § 1983
There is no federal statute of limitations for section 1983 actions. Accordingly, a court must "borrow" the limitations period from the most appropriate or analogous state statue. Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). New York's three-year period for unspecified personal injury actions set forth in N.Y. Civ. Pract. L. & R. § 214(5) governs § 1983 actions in New York State. Owens v. Okure, 488 U.S. 235, 102 L. Ed. 2d 594, 109 S. Ct. 573 (1989), aff'g, 816 F.2d 45 (2d Cir.1987); Leon v. Murphy, 988 F.2d 303, 309 (2d Cir. 1993).
The date of accrual of a section 1983 claim, however, is governed by federal law. See Morse v. University of Vermont, 973 F.2d 122, 125 (2d Cir. 1992). Such claims accrue when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980).
Byrd's section 1983 claim accrued on October 4, 1991, the date he was attacked and injured. Accordingly, the limitations period on this claim expired on October 4, 1994. Hults was served with the Second Amended Complaint on February 27, 1995, four months after lapse of the limitations period.
b. Requirements for Amendment of Pleadings as Set Forth in Fed. R. Civ. P. 15(a)
Rule 15(a) provides that leave to amend a pleading "shall be freely given when justice so requires."
The Supreme Court has interpreted Rule 15 to permit such amendments only when: (1) the party seeking the amendment has not unduly delayed, (2) that party is not acting in bad faith or with a dilatory motive, (3) the opposing party will not be unduly prejudiced by the amendment, and (4) the amendment is not futile. Foman, 371 U.S. at 182; see Mackensworth v. S.S. Am. Merchant, 28 F.3d 246, 251 (2d Cir. 1994); Chan v. Reno, 916 F. Supp. 1289, 1302 (S.D.N.Y. 1996).
A motion to amend may be denied as futile if the amended pleading fails to state a claim or defense. See, e.g., S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979); Freeman v. Marine Midland Bank-New York, 494 F.2d 1334, 1338 (2d Cir. 1974); McNally v. Yarnall, 764 F. Supp. 853, 855 (S.D.N.Y. 1991).
Hults' motion to amend fails to meet the fourth requirement of Rule 15(a); it fails to set forth a viable defense. The statute of limitations defense which Hults seeks to add to his answer is not available, because Byrd's Second Amended Complaint satisfies the relation back requirements set forth in Rule 15(c).
c. Requirements for Relation Back as Set Forth in Fed. R. Civ. P. 15(c)
Rule 15(c), Fed. R. Civ. P., provides that an amendment changing the name of a defendant relates back to the original pleading if the claims against the new party arise out of the same conduct or occurrence set forth in the original pleading, and, within 120 days of filing the original complaint, the new defendant (1) had received such notice of the action that he will not be prejudiced in maintaining his defense on the merits, Fed. R. Civ. P. 15(c)(3)(A), and (2) knew or should have known that, but for a mistake concerning the identity of the proper party the action would have been brought against him, Fed. R. Civ. P. 15(c)(3)(B). See Soto v. Brooklyn Correctional Facility, 80 F.3d 34, 35 (2d Cir. 1996); Scott v. Coughlin, 944 F. Supp. 266, 270 (S.D.N.Y. 1996); Candelaria v. Coughlin, 1997 U.S. Dist. LEXIS 4513 at *15, 1997 WL 171256 *5 (S.D.N.Y. 1997).
According to Hults, Byrd's Second Amended Complaint does not relate back because Byrd's inability to discover Hults' name before the running of the limitations period is not a "mistake," as that term is defined in Barrow v. Wethersfield Police Department, 66 F.3d 466 (2d Cir. 1995), modified, 74 F.3d 1366 (2d Cir. 1995).
In Barrow, the Second Circuit held that the amended complaint could not relate back because the failure to provide the individual defendants' actual names did not constitute a "mistake" within the meaning in Rule 15(c)(3)(B). The Court held that a mistake in a defendant's identity occurs when it is the result of "misnomer or misidentification", or when a plaintiff omits the individual defendant altogether, in the erroneous belief that suing a government department will suffice. 66 F.3d at 469, as modified, 74 F.3d at 1366. The Court stated:
Rule 15(c) explicitly allows the relation back of an amendment due to a "mistake" concerning the identity of the parties (under certain circumstances), but the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake.
66 F.3d at 470, as modified, 74 F.3d at 1367.
The Barrow plaintiff had filed a complaint against the city police department, alleging that certain unidentified police officers used excessive force in effecting his arrest in violation of § 1983. The district court ordered the inmate to amend his complaint by adding the individual officers as defendants, and directed the plaintiff to "make every effort to obtain the names of police officers who participated" in his arrest. 66 F.3d at 467. The plaintiff added the individual defendants in an amended complaint filed after the deadline set by the court, but identified them only as "John Doe". The Police Department consequently refused to accept service of the amended complaint on behalf of the unknown officers. The plaintiff again amended his complaint to name the defendant officers, who were then served almost two years after the statute of limitations had run. The district court granted the defendant officers' motion to dismiss on statute of limitations grounds because the plaintiff "made no showing that the six individual defendants had even constructive knowledge of the claims against them within 120 days of the court's receipt of the initial complaint" as required by Rule 15(c). Id. at 467. As described above, the Second Circuit affirmed.
Byrd's circumstances are distinguishable from those presented in Barrow. The Barrow plaintiff disregarded an explicit direction from the court to obtain the officers' identities. He failed to make any efforts to discover their names until well after the statute of limitations had run. In contrast, Byrd made a series of efforts to obtain the identity of the individual officer without prompting, and well before the end of the limitations period. Byrd's counsel requested the officer's name in January 1994, nine months prior to the end of the limitations period. Corporation Counsel stated that the name of the officer was not yet known. Byrd's counsel then requested the prison's log books in order to determine the name of the officer on duty when Byrd was attacked. Corporation Counsel refused to make any disclosure until the trial of the individual officer was bifurcated from trial of the Supervisory Defendants. That issue was resolved by Court order on June 30, 1994, four months before the end of the limitations period. However, Corporation Counsel failed to disclose the defendant officer's identity until January 12, 1995, almost three months after the limitations period had run.
The Barrow Court had ruled that "the failure to identify individual defendants when the plaintiff knows that such defendants must be named cannot be characterized as a mistake". Barrow, 66 F.3d at 470, as modified, 74 F.3d at 1367. In Byrd's case, it was the defense, rather than the plaintiff, who failed to identify the individual defendant despite Byrd's requests for that information. The identity of Hults was information uniquely within the knowledge of Corporation Counsel. Byrd, a mentally ill inmate who had been transferred to the prison housing area only 24 hours before the attack, did not have access to Hults' name. Byrd's counsel could obtain Hults' identity only from Corporation Counsel. Byrd's counsel requested that information prior to the end of the limitations period, but Corporation Counsel did not comply until after the limitations period had run. To hold that Rule 15(c) does not permit relation back in such circumstances would permit defense counsel to eliminate claims against any John Doe defendant merely by resisting discovery requests until the statute of limitations has ended.
ii. Notice, Lack of Prejudice and Knowledge
Byrd's situation is further distinguishable from Barrow, because, unlike the Barrow defendants, Hults had sufficient notice and knowledge that he would be named as a defendant in the action. The Barrow district court dismissed the plaintiff's claim on statute of limitations grounds because "[plaintiff] had made no showing that the six individual defendants had even constructive knowledge of the claims against them within 120 days of the court's receipt of the initial complaint." Barrow, 66 F.3d at 467 (citing Barrow, No. N-90-571 (JAC) (D.Conn. June 10, 1992)). Byrd, on the other hand, has shown that Hults had constructive notice and sufficient knowledge to meet the requirements of Rule 15(c).
Rule 15(c)(3) requires that within 120 days of filing the original complaint, the new defendant (A) had received such notice of the action that he will not be prejudiced in maintaining his defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.
Notice of the allegations against Hults may be imputed to him because both he and the Supervisory Defendants are represented by the same attorney. Notice of a lawsuit can be imputed to a new defendant state official through his attorney, when the attorney also represents the officials originally sued. Scott v. Coughlin, 944 F. Supp. 266, 270-71 (S.D.N.Y. 1996); see Hood v. City of New York, 739 F. Supp. 196, 199 (S.D.N.Y. 1990); Hodge v. Ruperto, 739 F. Supp. 873, 881 (S.D.N.Y. 1990).
In order to impute such notice to the new defendant through his attorney, however, the plaintiff must demonstrate that the attorney knew or should have known that the additional defendant would be added to the existing suit. See Gleason v. McBride, 869 F.2d 688, 693 (2d Cir. 1989); Hood, 739 F. Supp. at 199; Hodge, 739 F. Supp. at 881. In Byrd's case, the allegations against the "John Doe" defendant in the first complaint informed Corporation Counsel that the officer on duty during the incident would be a defendant in the suit.
As discussed above, Hults' identity was information uniquely accessible to Corporation Counsel. Whether or not counsel knew Hults' name within the 120 days after the complaint was filed, counsel was aware that it would have to obtain that information. Counsel certainly knew that Hults would have been named as a defendant well before the limitations period ended, but for plaintiff's inability to obtain this information from Counsel itself. See Scott, 944 F. Supp. at 271.
Finally, Hults will not be prejudiced in maintaining his defense on the merits. Corporation Counsel obtained bifurcation of the claims against Hults in June of 1994 in order to prepare his defense without distraction from the issue of municipal liability. Corporation Counsel has thus had every opportunity to prepare a vigorous defense. See Scott, 944 F. Supp. at 270-71.
For the reasons set forth above, Hults' motion to amend must be denied as futile. Because the statute of limitations defense is barred by the relation back of the Second Amended Complaint, Hults' amendment fails to set forth a viable defense. All motions will be returnable on September 3, 1997. If no summary judgment motion is forthcoming, pretrial orders will also be returnable on that date.
It is so ordered.
New York, N. Y.
May 14, 1997
ROBERT W. SWEET