Elliott et al v. Police Department et al
ORDER granting in part and denying in part Plaintiffs' Motion for Leave To File Amended Complaint and To Add Parties (Doc. No. 49 ). Signed by Judge Alvin W. Thompson on 08/10/2012. (Giering, A)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SANDRA ELLIOTT, individually and as :
Administratrix of the estate of
Asher Tamara Glace,
CITY OF HARTFORD; DARYL ROBERTS,
individually and in his official
capacity as Chief of Police of the
City of Hartford Police Department; :
CHRISTOPHER MORANO, individually and :
in his official capacity as Chief
State’s Attorney of the State of
Connecticut; and KEVIN KANE,
individually and in his official
capacity as Chief State’s Attorney
of the State of Connecticut,
CASE NO. 3:09CV00948(AWT)
RULING ON PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
AND TO ADD PARTIES
The plaintiffs have moved for leave to file a third amended
The proposed third amended complaint seeks to add
five additional individuals as defendants: former Chief of Police
Patrick Harnett, Senior Assistant State's Attorney David Zagaya,
Assistant State's Attorney Richard Rubino, Detective Jerry Bilbo
and Detective Michael Sheldon.
On January 26, 2012, the
plaintiffs filed the proposed third amended complaint as an
attachment to the instant motion.
(See Doc. No. 49-1).
it is undisputed that the proposed third amended complaint was
filed outside the relevant limitations period1, the plaintiffs
contend that the amendments relate back pursuant to Fed. R. Civ.
P. 15(c)(1)(C) to the Second Amended Complaint filed on June 16,
For the following reasons, the motion is being granted in
part and denied in part.
Fed. R. Civ. P. 15(c)(1)(C) provides that:
An amendment to the pleading relates back to
the date of the original pleading when . . .
the amendment changes the party or the naming
of the party against whom a claim is asserted,
. . . if, . . . the party to be brought in by
amendment: (i) received such notice of the
action that it will not be prejudiced in
defending on the merits; and (ii) knew or
should have known that the action would have
been brought against it, but for a mistake
concerning the proper party's identity.
In Krupski v. Costa Crociere S.p.A., the Supreme Court held that
"Rule 15(c)(1)(C)(ii) asks what the prospective defendant knew or
should have known during the Rule 4(m) period, not what the
plaintiff knew or should have known at the time of filing her
130 S. Ct. 2485, 2493 (2010).
"[w]hen the original complaint and the plaintiff's conduct compel
the conclusion that the failure to name the prospective defendant
This claim accrued on June 16, 2007. Constitutional torts filed under
§ 1983 are governed in Connecticut by a three-year statute of limitations. Conn.
Gen. Stat. § 52-577; Lounsbury v. Jeffries, 25 F.3d 131, 134 (2d Cir. 1994).
Therefore, the period for amending the complaint expired on June 16, 2010.
in the original complaint was the result of a fully informed
decision as opposed to a mistake concerning the proper
defendant's identity, the requirements of Rule 15(c)(1)(C)(ii)
are not met."
Id. at 2496.
The City defendants argue that Harnett, Bilbo and Sheldon
"could have been sued in the original Complaint, . . . as they
all must have been known to the Plaintiff as early as 2005.
Plaintiffs chose not to name them as parties until now."
City of Hartford and Daryl Roberts' Objection to Mot. for Leave
To Amend Compl. (Doc. No. 51) at 2.)
Bilbo and Sheldon
In the proposed third amended complaint, the plaintiffs
allege that Bilbo and Sheldon were responsible for taking the
decedent's statement and for placing her name "in the personal
statement they took from her" and "in other documents that were
made available to the public." (Proposed Third Am. Compl. (Doc.
No. 49-1) ¶¶ 64-65.)
Although the Second Amended Complaint, which is the
operative complaint, alleges that "Ms. Glace provided Anthony
Thompson's name to the Hartford Police," it does not attribute
the interaction with Glace on behalf of the Hartford Police
Department to a named individual or individuals.
Compl. (Doc. No. 16) ¶ 13.)
Also, although the operative
complaint alleges that "[t]he Chief of Police for The Hartford
Police Department, Daryl Roberts designated by way of publication
that Ms. Glace was 'the chief witness in the upcoming trial of
Anthony Thompson' on the department's web page for the entire
world to see and access," this specific allegation is absent from
the proposed third amended complaint.
Assuming that Bilbo and Sheldon received sufficient notice
under Rule 15(c)(1)(C)(i), "the question under Rule
15(c)(1)(C)(ii) is what the prospective defendant reasonably
should have understood about the plaintiff's intent in filing the
original complaint against the first defendant."
S.Ct. at 2496.
In this case, Bilbo and Sheldon should not have
reasonably understood from the prior complaints and the
plaintiff's conduct that they were the intended defendants in
There is nothing in the prior complaints that
suggests that the plaintiffs sought to hold responsible anyone
from the City of Hartford other than the Chief of Police and the
While the Second Amended Complaint alleges that
members of the Hartford Police Department interacted with the
decedent (see ¶ 12), it does not allege that any member of the
Department other than Chief Roberts acted so as to incur any
liability to the plaintiffs.
It attributes wrongdoing only to
Chief Roberts, for his own acts, and to the City of Hartford, for
a policy, procedure, custom or policy.
Even in the supervisory
liability claim against Chief Roberts, the most the plaintiffs
allege against other officers is that they were not properly
trained and supervised.
Moreover, as the Chief of Police remains
a defendant in the proposed third amended complaint it is clear
that the plaintiffs did not mistakenly name Roberts instead of
Bilbo and Sheldon.
Therefore, the plaintiffs have failed to meet
their burden of showing that the proposed amendments relate back
to the operative complaint as to Bilbo and Sheldon.
As the plaintiffs' argument for relation back under Rule
15(c)(1)(C) lack merit, amending the complaint to add Bilbo and
Sheldon after the statute of limitations has run would be futile.
"Leave to amend may properly be denied if the amendment would be
futile," Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162,
185 (2d Cir. 2012), and so the court is denying the plaintiffs
leave to amend their complaint to add Bilbo and Sheldon as
In the proposed third amended complaint, the plaintiffs
allege that "[a]t all times relevant hereto, Defendant Patrick
Harnett was employed by Defendant City of Hartford as its Chief
of Police and acted under color of law."
Compl. ¶ 39.)
(Proposed Third Am.
The operative complaint alleges that "[a]t all
times relevant hereto, Defendant Daryl Roberts was employed by
Defendant City of Hartford as its Chief of Police and acted under
color of law."
(Second Am. Compl. ¶ 25.)
In this case, Harnett reasonably should have understood that
the plaintiffs intended to file their complaint against the
person employed as Chief of Police of the City of Hartford at the
relevant time or times, and no issue has been raised as to
whether the requirements of clause (C)(i) have been satisfied.
Therefore, the plaintiffs have met their burden of showing that
the proposed amendment relates back to the operative complaint
with respect to Harnett.
State Defendants: Zagaja and Rubino
The State defendants' only argument is that the statute of
limitations should not be tolled.
However, the issues presented
by Rule 15(c)(1)(C) with respect to the City defendants are also
present with respect to the proposed State defendants the
plaintiffs now seek to add.
The Second Amended Complaint named only Chief State's
Attorneys, not line prosecutors. However, in the proposed third
amended complaint, the plaintiffs allege that "Defendants Morano,
Zagaja and Rubino, were specifically mandated by law to conduct a
review into Ms. Glace's need for protective services, but they
failed to conduct any such reviews or investigations."
Third Am. Compl. ¶ 48.)
The operative complaint alleges that
"[a]t a minimum, Defendants Morano and Kane were specifically
mandated by law to conduct a review into Ms. Glaces' need for
protective services, but they failed to conduct any such reviews
(Second Am. Compl. ¶ 48. )
On May 17, 2010, the court held a status conference in this
During the status conference, the court asked plaintiffs'
counsel if he had considered adding additional prosecutors as
And you believe at some point
you're going to be able to add
a prosecutor if it comes to
absolutely, Your Honor.
And when do you plan on doing
. . .
I don't have a specific time
frame, your honor.
(Tr. Status Conference, May 17, 2010 (Doc. No. 65) ("5/17/10
As discussed below, the role of Zagaja and Rubino in the
Anthony Thompson prosecution was publicly available information.
Thus, while Zagaja and Rubino arguably should have known before
the statute of limitations ran that the plaintiffs intended to
bring an action against them, neither of them should have known
that an action would have been brought against him but for a
mistake concerning his identity.
Therefore, the plaintiffs have
failed to meet their burden of showing that the proposed
amendments relate back to the operative complaint as to these two
As amending the complaint to add Zagaja and Rubino after the
statute of limitations has run would be futile, the court is
denying the plaintiffs leave to amend their complaint to add
Zagaja and Rubino as defendants.
Exception to Mistake Requirement
Relying on Archibald v. Hartford, 274 F.R.D. 371 (D. Conn.
2011), the plaintiffs assert that the defendants' failure to
comply with their discovery requests prevented the plaintiffs
from learning the identity of the individuals that they now seek
to add as defendants.
The court in Archibald recognized an
"exception" to the "mistake" requirement in Rule 15(c)(1)(c)(ii)
that operates when "a plaintiff attempted to discover the
identity of the unknown defendant prior to the expiration of the
statute of limitations but did not receive an adequate response
to his discovery request."
Id. at 377.
In Archibald, an arrestee filed a § 1983 complaint against
the City of Hartford, the Chief of Police, two named police
detectives, and four unnamed police officers.
After the close of
the three-year limitations period, the plaintiff amended his
complaint to replace "John Doe 1" and "Jane Doe 1" with the names
of two additional police officers.
The two additional officers
moved to dismiss the amended complaint.
The court found that the
plaintiff had "'made a series of [timely] efforts to obtain the
identit[ies] of the individual officer[s] without prompting' from
the Court,' but was stymied by defense counsel."
Id. at 381
(quoting Byrd v. Abate, 964 F. Supp. 140, 145 (S.D.N.Y. 1997)).
In particular, the court found that the plaintiff's effort to
discover the identities of the police officers involved in his
arrest "was either completely rebuffed or substantially delayed
by defense counsel."
In light of defense counsel's
noncompliance, as well as the "diligent efforts" of plaintiff's
counsel to determine the identities of the unnamed officers, id.
at 382, the court denied the defendants' motion to dismiss.
court reasoned that this exception "recognizes that defendants
should not gain the benefit of a statute of limitations defense
if it was the defense, rather than the plaintiff, who failed to
identify the John Does and plaintiff's counsel requested that
information prior to the end of the limitations period, but
defendants' counsel did not comply until after the limitations
period had run."
Id. at 277 (internal quotations omitted).
Relying on Archibald, the plaintiffs here argue that their
lack of knowledge of the identities of individuals to be added as
defendants excuses the "mistake" requirement under Rule
15(c)(1)(C) because of the defendants' failure to comply with
certain discovery requests.
However, Archibald is inapposite
because in this case the lack of knowledge at the time the
operative complaint was filed resulted not from defense
misconduct but from the failure by plaintiffs' counsel to
properly investigate and present their claim.
First, plaintiffs' counsel has at no point explained
specifically how the defendants' noncompliance with his discovery
requests delayed or prevented him from receiving any information
as to the individuals he now seeks to add as defendants, as
opposed to other information he may have sought.
At the May 17,
2010 status conference in this case, the court asked how much
discovery had been done by the plaintiffs; plaintiffs' counsel
responded, "None, Your Honor."
(5/17/10 Tr. at 3).2
February 2, 2012, the court discussed the instant motion with
At that time plaintiffs' counsel did not identify any
information that caused him to seek to add these individuals as
defendants that was not available to him well before the statute
of limitations ran.
Second, the record here demonstrates that the defendants are
correct when they assert that "[a]ll of the information presented
by counsel in support of the Motion for Leave to Amend was public
At that status conference, the court also said to plaintiffs' counsel that
"it doesn't seem to me that you've given this case the attention it deserves or
the depth of analysis that it deserves and needs. It's not my job to help one
side or the other in a case, but I think you need to do a lot more work on this
case and very quickly." (Tr. Status Conference, May 17, 2010 (Doc. No. 65), 15).
information readily available to the plaintiff."
Objection to the Pl.'s Mot. To Amend the Compl. (Doc. No. 54),
Not only does the voluntary statement of Asher Glace, on HPD
Form 5, reflect that she gave that statement to Sheldon and
Bilbo, but the Affidavit of Sandra Elliott (Doc. No. 59-6)
reflects that she actually spoke to Bilbo in 2005 about whether
Glace was in any danger.
Also, as the proposed amendments
reflect, Zagaja and Rubino were the local prosecutors who handled
the case against Anthony Thompson, and, as shown in the
transcripts submitted by the plaintiffs, their role was a matter
of public record.
In addition, plaintiffs' counsel represented
that he attended the Anthony Thompson trial for three days and
that his client attended some portion of that trial as well.
(See Tr. Status Conference, Feb. 2, 2012 (Doc. No. 55), 21-22.)
Archibald's counsel made "diligent efforts to determine the
identities" of the parties he sought to add, Archibald, 274
F.R.D. at 382, and conducted such efforts "without prompting"
from the court, id. at 381.
Here, however, plaintiffs' counsel
failed to properly investigate and prepare the claim despite the
Therefore, the court finds no basis to apply the
"exception" articulated in Archibald.
See Venezia v. 12th and
Div. Props., LLC, 2010 WL 3122787, at *4 (M.D. Tenn. Aug. 6,
2010) ("This is not the type of 'mistaken identity' that Rule 15
is intended to address.
Instead, this is a purported lack of
knowledge regarding the involvement of additional parties which
additional investigation would have revealed.").
For the foregoing reasons, Plaintiffs' Motion for Leave To
File Amended Complaint and To Add Parties (Doc. No. 49) is hereby
GRANTED in part and DENIED in part.
The plaintiffs may file a
Third Amended Complaint that adds former Chief Patrick Harnett as
It is so ordered.
Dated this 10th day of August 2012, at Hartford,
Alvin W. Thompson
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?