Morrison v. Lefevre, 79 Civ. 1508 (ADS).

• Decision Date: 20 August 1984
• Docket Number: No. 79 Civ. 1508 (ADS).,79 Civ. 1508 (ADS).
• Citation: 592 F. Supp. 1052
• Parties: Thomas MORRISON and Madeleine Morrison, Plaintiffs, v. Eugene S. LEFEVRE, Richard W. Hongisto, William Gard, J. Kevin McNiff, David R. Harris, Joseph P. Keenan, D.A. McGuire, J.E. Sullivan, Frederick Royce, Robert Gilroy, "John" Alston, Edward Daverso, Louis Panarello, Wilfred Flecha, Edward Boulanger, John Bissonette, C. Grey, J. Jones, B. Miller, "John" Rafaniello, "John" Valdes, and "John" Arizmedi, Defendants.
• Court: U.S. District Court — Southern District of New York

592 F. Supp. 1052

Thomas MORRISON and Madeleine Morrison, Plaintiffs, v. Eugene S. LEFEVRE, Richard W. Hongisto, William Gard, J. Kevin McNiff, David R. Harris, Joseph P. Keenan, D.A. McGuire, J.E. Sullivan, Frederick Royce, Robert Gilroy, "John" Alston, Edward Daverso, Louis Panarello, Wilfred Flecha, Edward Boulanger, John Bissonette, C. Grey, J. Jones, B. Miller, "John" Rafaniello, "John" Valdes, and "John" Arizmedi, Defendants.

No. 79 Civ. 1508 (ADS).

United States District Court, S.D. New York.

August 20, 1984.

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Lewitas & Yohonn, New York City, for plaintiffs; Dennis H. Lewitas, New York City, of counsel.

Robert Abrams, Atty. Gen. of New York, New York City, for defendants; Donald Sticklor, Barbara B. Butler, Ellen Bronzo, Asst. Attys. Gen., New York City, of counsel.

OPINION AND ORDER

SOFAER, District Judge:

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 Superintendent Keenan's complaint to the State Police, she was falsely arrested and tried for promoting prison contraband. After two days of trial before a jury, all charges against her were dismissed pursuant to C.P.L. § 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 Keenan, 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 Keenan'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 governed by Fed.R.Civ.P. 15(c), which allows the amendment to relate back to the date of the original pleading "whenever 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 "have 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 parties, 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 in the Special Housing Units at Green Haven and Clinton and transferred from Green Haven to Clinton in violation of the...