Perry v. Hodgson et al

Filing 76

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM AND ORDER granting 70 Plaintiff's Motion to Amend Complaint. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

RICO PERRY,
Plaintiff,
v.
KEVIN ROSE, et al.,
Defendants.

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CIVIL ACTION
NO. 10-10769-JGD

MEMORANDUM OF DECISION AND ORDER ON
PLAINTIFF’S MOTION FOR LEAVE TO AMEND COMPLAINT
September 6, 2012
DEIN, U.S.M.J.
I. INTRODUCTION
Plaintiff Rico Perry (“Perry”), an inmate at the Souza-Baranowski Correctional
Center in Shirley, Massachusetts, has brought this action alleging that he was assaulted
by correctional officers at the Bristol County House of Correction (“BCHC”) on June
8-9, 2007, and was subsequently deprived of adequate medical care for the injuries he
sustained as a result of the assault. In his original pro se complaint filed on April 28,
2010, Perry named as defendants various officials and employees of the BCHC, various
employees of the Norfolk County Jail, and five unnamed guards and two unnamed nurses
at the BCHC. By his complaint, Perry asserted claims against the defendants pursuant to
42 U.S.C. § 1983, alleging violations of his rights under the Eighth and Fourteenth
Amendments to the United States Constitution. In response to motions to dismiss filed by

the named defendants, this court, on March 25, 2011, dismissed all claims against the
named defendants, except for the claim against Lieutenant Kevin Rose (“Rose”) of the
BCHC in his individual capacity.
Counsel was subsequently appointed to represent Perry and the parties engaged in
discovery. Based on that discovery, Perry, through counsel, has filed a Motion for Leave
to Amend Complaint (Docket No. 70). By this motion, Perry is seeking to substitute
Lieutenant Robert Shubert (“Shubert”), Officer Steven Assad (“Assad”), and Officer
Jeffrey Pipes (“Pipes”) (collectively, the “Bristol County Officers”) for the unknown
correctional officers who either allegedly participated directly in the assault or failed to
intervene, and Susie Roy and Claire Rocha for the previously unidentified nurses who
allegedly failed to provide him with adequate medical treatment. He is also seeking to
add five “John Doe” guards of the BCHC who were allegedly members of the SRT
Response Team at the time of the alleged incident. Finally, Perry is seeking to add
common law assault and battery claims against the defendants who allegedly participated
directly in the assault.
The Bristol County Officers oppose the proposed amendment alleging undue
delay, undue prejudice and futility both because the claims are allegedly time barred and
because the SRT Response Team was not involved in any incident. After careful
consideration of the oral and written arguments and review of the file, the Motion to
Amend (Docket No. 70) is ALLOWED. The plaintiff shall notify the court when service
is complete so that a new discovery schedule can be established.
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II. STATEMENT OF FACTS
Where, as here, a motion to amend is opposed on the grounds including futility,
the “proposed amendment ‘is gauged by reference to the liberal criteria of Federal Rule of
Civil Procedure 12(b)(6).’” Transwitch Corp. v. Galazar Networks, Inc., 377 F. Supp. 2d
284, 290 (D. Mass 2005) (quoting Hatch v. Dep’t for Children, Youth & Their Families,
274 F.3d 12, 19 (1st Cir. 2001)). “In such circumstances, ‘amendment is not deemed
futile as long as the proposed amended complaint sets forth a general scenario which, if
proven, would entitle the plaintiff to relief against the defendant on some cognizable
theory.’” Id. (quoting Hatch, 274 F.3d at 19). The court must accept as true all wellpleaded facts set forth in the proposed amended complaint, and give the plaintiff the
benefit of all reasonable inferences. See id. at 294; Cooperman v. Individual, Inc., 171
F.3d 43, 46 (1st Cir. 1999). Nevertheless, “a plaintiff’s obligation to provide the grounds
of his entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do[.]” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007) (internal
quotations and punctuation omitted). Applying this standard to the instant case, the
relevant facts are as follows.
The Alleged Assault
Plaintiff alleges that the assault giving rise to this case took place on June 8-9,
2007. (Proposed Am. Compl. (Docket No. 70-1) ¶ 16). On June 8, 2007, Perry was
transferred from the Norfolk County Correctional Center to the BCHC located in North
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Dartmouth, Massachusetts. (Id. ¶ 14). He claims that at the beginning of the 11:00 p.m.
to 7:00 a.m. shift on June 8-9, 2007, he was in a holding cell in the booking area of the
BCHC when he called for help after another inmate fainted. (Id. ¶¶ 16-17). Proposed
defendant Shubert allegedly came to the holding cell and told Perry to mind his own
business and, sarcastically, that Perry would have a “nice stay” at the BCHC. (Id. ¶ 18).
Subsequently, Shubert brought Perry down to a booking room, where defendant
Rose was seated. (Id. ¶ 19). Perry contends that Shubert grabbed his wrist and hand
roughly in order to take fingerprints. (Id. ¶ 20). Perry further claims that he pulled his
hand away and stated that he would prefer Rose to conduct the booking. (Id.). Following
this exchange, Shubert and Rose allegedly refused to complete the booking process and
began to drag Perry back towards the holding cell while putting “serious pressure” on his
arm. (Id. ¶ 21). This allegedly prompted Perry to pull his arm away and protest that they
were hurting his arm. (Id.).
Perry contends that Shubert and Rose reacted to his comment by throwing him to
the ground and punching and kicking him while repeatedly demanding Perry’s apology.
(Id.). Allegedly, proposed defendants Assad and Pipes then arrived at the scene. (Id.
¶ 22). According to Perry, Assad joined the assault by punching and kicking him, and
Pipes retrieved leg irons for the others to use in further restraining him. (Id.). Allegedly,
Shubert, Rose, Assad and Pipes finally backed away from Perry upon the arrival of five
other John Doe guards, whose names are currently unknown to Perry. (Id. ¶¶ 23-24).
Perry claims that the five John Doe guards, allegedly members of the SRT Response
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Team, handcuffed Perry’s hands behind his back and placed iron shackles on his legs
while continuing to punch and kick him. (Id.). The five John Doe guards allegedly
stopped their assault of Perry after seeing blood in Perry’s mouth. (Id. ¶ 26). Perry
claims that he suffered a broken jaw, injuries to his head and mouth, bruises all over his
body, and a missing tooth as a result of the assault. (Id. ¶ 27).
Immediately after the conclusion of the assault, Perry was taken to the special
management unit at the BCHC where proposed defendants Roy and Rocha were nurses
on duty. (Id. ¶¶ 28-29). Perry claims that these defendants denied his request to be
transferred to the BCHC infirmary or to an outside hospital. (Id. ¶ 29). Allegedly, Perry
was not transferred to the infirmary until approximately seventeen hours after the alleged
assault. (Id. ¶ 30). Perry was subsequently transferred to St. Luke’s Hospital and, later,
to Massachusetts General Hospital on an emergency basis, where he underwent surgery
on his jaw. (Id.). Perry claims that he continues to suffer physical, mental and emotional
distress as a result of the assault. (Id. ¶ 31).
Perry contends that he repeatedly informed the correctional officers at the BCHC
in the hours after the alleged assault that he intended to file a grievance for the assault.
(Id. ¶ 32). Both Perry and Perry’s former counsel requested grievance forms for that
purpose. (Id.). Allegedly, these requests for a grievance form were denied. (Id.). Perry
further contends that he sent a handwritten grievance to Thomas Hodgson, Sheriff of the
BCHC, on June 17, 2007 via the U.S. Postal Service and maintained another hand-written
copy in his personal files. (Id. ¶ 33).
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By letters dated February 24, 2010 and April 2, 2010, then-counsel representing
Perry requested all reports and other information related to the incident which would have
enabled Perry to identify all those allegedly involved in the incident. (Pl. Reply Mem.
(Docket No. 74) at Exs. A & B). By letters dated April 5, 2010, the Bristol County
Sheriff’s Office declined the requests stating that “the requested information cannot be
disclosed at the present time.” (Id. at Exs. C & D).
Additional factual details are described below to the extent they are relevant to this
court’s analysis.
Procedural History
On April 28, 2010, Perry filed a pro se complaint against the original defendants,
including defendant Rose and several other John and Jane Doe defendants, in the United
States District Court, District of Massachusetts, for violations of Perry’s rights under the
Eighth and Fourteenth Amendments to the Constitution arising from the alleged assault.
On March 25, 2011, this court granted the defendants’ Motions to Dismiss with respect to
the plaintiff’s claims against them, except for plaintiff’s excessive force claim against
defendant Rose in his individual capacity. (Docket No. 54). A stay of discovery was
then entered to allow time for counsel to be appointed. (Docket Entry dated 06/30/2011).
By order dated October 24, 2011, this Court appointed Counsel James D. Smeallie to
represent Perry under the United States District Court Plan for the Appointment of
Counsel for Indigent Parties in Certain Civil Cases. (Docket No. 61). On December 2,
2011, this court ordered discovery to be completed by July 31, 2012, and established
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January 31, 2012 as the deadline for any amended pleadings. (Docket No. 68). This
latter deadline was subsequently extended to February 15, 2012. (Docket Entry dated
01/27/2012).
On January 25, 2012, defendants Rose and the BCHC produced documents
responsive to a document request and subpoena. (Mot. (Docket No. 70) at ¶ 4). On
February 6, 2012, defendant Rose responded to Perry’s First Set of Interrogatories. (Id.)
On February 15, 2012, in accordance with the scheduling order as extended, Perry filed
his Motion to Amend Complaint on the basis of information disclosed in discovery
responses. (Docket No. 70). On March 19, 2012, defendant Rose and the proposed
Bristol County Officer defendants filed their Opposition to Plaintiff’s Motion for Leave
to Amend. (Docket No. 72). Perry filed a Reply Memorandum on April 5, 2012 (Docket
No. 74), and a hearing was held on April 10, 2012.
III. ANALYSIS
By his motion for leave to amend, Perry is seeking to substitute specific named
defendants for both John and Jane Doe defendants in the original complaint. The motion
is unopposed with respect to the two Jane Doe defendants — the BCHC nurses Roy and
Rocha. Therefore, the motion shall be allowed as to those parties. With respect to the
proposed claims against the BCHC guards Shubert, Assad, Pipes, and five additional John
Doe SRT Response Team members, the motion, although opposed, will be allowed for
the reasons detailed below.
A.

Motion to Amend Standard of Review
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The decision whether to grant a motion for leave to amend falls within the trial
court’s discretion. Sheehan v. City of Gloucester, 321 F.3d 21, 26 (1st Cir. 2003).
“Leave to amend under Rule 15 is freely given when justice so requires absent an
adequate basis to deny amendment such as futility, bad faith, undue delay or a dilatory
motive.” Transwitch Corp, 377 F. Supp. 2d at 290 (quotations and citation omitted).
This court finds the proposed defendants’ claims of undue delay, undue prejudice and
futility unpersuasive.
1.

Undue Delay

“While courts may not deny an amendment solely because of delay and without
consideration of the prejudice to the opposing party . . . it is clear that ‘undue delay’ can
be a basis for denial[.]” Hayes v. N.E. Millwork Distribs., Inc., 602 F.2d 15, 19 (1st Cir.
1979) (citations omitted). However, in the instant case, the identity of the newly named
defendants was not known until they were identified in reports which were not produced,
despite earlier requests, until the deadline to amend pleadings had nearly expired. Prior
to bringing suit, Perry, through counsel, had sent letters to the BCHC on February 24,
2010 and April 2, 2010 requesting documents relating to the incident, but the requests
were denied. Subsequent delays in discovery were due to the pendency of the motions to
dismiss and a court ordered stay to enable counsel to be appointed. Although the
information was in the possession of the BCHC, it was not produced until January 25,
2012. The proposed amendment on February 15, 2012, within the schedule set by the
court, was timely.
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2.

Undue Prejudice

Under Fed. R. Civ. P. Rule 15(a), this court may deny an amendment on the
grounds of undue prejudice to defendants. Zenith Radio Corp. v. Hazeltine Research,
Inc., 401 U.S. 321, 330-31, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77 (1971); Stepanischen v.
Merch. Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir. 1983); see generally 6 C.
Wright, A. Miller & M. Kane, Federal Practice and Procedure § 1487 (1990). Defendants assert that they will be unduly prejudiced by allowance of the amendment. This
court disagrees.
The defendants contend that they will be prejudiced because the alleged incident
occurred more than five years ago and they had no notice of it, and because the plaintiff
has added new causes of action. However, both the new causes of action, which include
the state court claims of assault and battery and the claim that certain defendants failed to
stop the assault, and the pending claims, all arise out of a common nucleus of facts.
Regardless of the legal theories proffered, the events of June 8-9, 2007 and Perry’s
subsequent medical treatment, or lack thereof, will have to be explored. Since no trial
date has been set, the parties will have ample opportunity to engage in discovery. There
is no undue prejudice. See Picker Int’l, Inc. v. Leavitt, 128 F.R.D. 3, 7-9 (D. Mass. 1989)
(no undue prejudice where, inter alia, new claims are closely related to pending claims).
The fact that the incident occurred more than five years ago does not compel a
finding of undue prejudice. The proposed defendants allegedly were the parties involved
in the alleged assault and are employees of the BCHC, which has been aware of the
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plaintiff’s claims since well before suit was even filed. The only reason that the plaintiff
did not know of their identities earlier (and within the statute of limitations period) was
because the BCHC refused to disclose the information as stated in the BCHC’s letters of
April 5, 2010. Under such circumstances, the new defendants are deemed to have at least
constructive notice of the litigation. See Byrd v. Abate, 964 F. Supp. 140, 145-47
(S.D.N.Y. 1997) (corrections officer substituted for “John Doe” defendant had constructive notice of suit where he was represented by the same attorney as other defendants);
Archibald v. City of Hartford, 274 F.R.D. 371, 379-80 (D. Conn. 2011) (same); Daily v.
Monte, 26 F. Supp. 2d 984, 988 (E.D. Mich. 1998) (newly added prison officials and
guards had constructive notice of inmate’s action where they were named in incident
reports).
For all these reasons, the defendants will not be unduly prejudiced if the motion to
amend is allowed.
3.

Futility

The defendants’ principal argument is that the amendment would be futile because
the claims are barred by the statute of limitations and because the SRT Response Team
was not involved in the plaintiff’s booking. Futility constitutes an adequate basis to deny
a proposed amendment. Demars v. Gen. Dynamics Corp., 779 F.2d 95, 99 (1st Cir.
1985). In the instant case, however, the claims relate back to the date of the original
complaint and, therefore, are not time barred. In addition, the plaintiff has alleged
sufficient facts to state a claim against the SRT Response Team.
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a.

Relation Back

“Under the doctrine of relation back, an amended complaint can be treated, for
purposes of the statute of limitations, as having been filed on the date of the original
complaint.” Pessotti v. Eagle Mfg. Co., 946 F.2d 974, 975 (1st Cir. 1991). Pursuant to
Fed. R. Civ. P. 15(c)(1)(A), “[a]n amendment of a pleading relates back to the date of the
original pleading when (1) relation back is permitted by the law that provides the statute
of limitations applicable to the action.” Massachusetts law is “more liberal than the
federal law with respect to the principle of relation back” and permits new parties to be
added to an ongoing case even after the expiration of the limitations period. Conneely v.
Butterworth Jetting Sys., Inc., 219 F.R.D. 25, 26-27 (D. Mass. 2003); Wadsworth v.
Boston Gas Co., 352 Mass. 86, 89-90, 223 N.E.2d 807, 810-11 (1967).
The Amended Complaint purports to add state law claims to which the state statute
of limitations applies. In addition, it purports to add § 1983 claims to which the state
statute of limitations also applies. See Nieves v. McSweeney, 241 F.3d 46, 51 (1st Cir.
2001) (since “Section 1983 does not contain a built-in statute of limitations,” federal
courts in this Circuit “borrow” the three year statute of limitations for personal injury
actions found in Mass. Gen. Laws ch. 260, § 2A). Under such circumstances, the
Massachusetts relation back standard should apply.1 See Velez v. Alvarado, 145 F. Supp.
2d 146, 157-59 (D.P.R. 2001) (where Puerto Rico state statute of limitations applies to

1

It does not appear that the First Circuit has directly decided whether the state or federal
relation-back rules apply to § 1983 claims.

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§ 1983 action, state relation-back rules apply and permit addition of new parties who
could not be added under federal rules); Sigros v. Walt Disney World Co., 190 F. Supp.
2d 165, 168 (D. Mass. 2002) (where Massachusetts statute of limitations applies to
plaintiff’s federal ADA claims, “the liberal Massachusetts relation-back rule applies to
plaintiff’s ADA claims”). Mass. R. Civ. P. 15(c) provides that “[w]henever the claim or
defense asserted in amended pleading arose out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original pleading, the amendment (including
an amendment changing a party) relates back to the original pleading.” Mass. R. Civ. P.
15(c) (emphasis added). Since there is no question that the proposed amended complaint
in this case relates to the same incident as the original complaint, it relates back under
Massachusetts law and is timely. See One Beacon Ins. Co. v. Electrolux, 223 F.R.D. 21,
25 (D. Mass. 2004) (applying Massachusetts law, relation back appropriate where claims
arose out of the original occurrence, proposed defendants would not be prejudiced and
any delay was excused).
If Fed. R. Civ. P. 15(c)(1)(C) were deemed to apply to the § 1983 claim, the
analysis would be more complicated but, nevertheless, under the unique facts of this case,
the results would be the same. Rule 15(c)(1)(C) has three essential requirements:
First, the claim asserted against the newly-designated defendant must
satisfy the terms of Rule 15(c)(1)(B), which provides that the claim
must arise out of the conduct, transaction, or occurrence set out – or
attempted to be set out – in the original pleading. Second, within the
period provided by [Fed. R. Civ. P.] 4(m) for serving the summons
and complaint, the party to be brought in by amendment must have
received such notice of the action that it will not be prejudiced in
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defending on the merits. Third, it must appear that within the same
time frame the newly-designated defendant either knew or should
have known that the action would have been brought against it, but
for a mistake concerning the proper party’s identity.
Morel v. DaimlerChrysler AG, 565 F.3d 20, 26 (1st Cir. 2009) (internal quotation marks
and citations omitted).
As established earlier, plaintiff’s amendment satisfies the first element because the
claims asserted against the proposed defendants arise out of the conduct, transaction, or
occurrence set out – or attempted to be set out – in the original pleading. See id. With
respect to the second element, the proposed defendants had at least constructive
knowledge of the lawsuit because, among other reasons, they allegedly committed the
assault and share counsel with the original defendants. See Cholopy v. City of
Providence, 228 F.R.D. 412, 416-17 (D.R.I. 2005), and cases cited (“Plaintiff need not
show actual notice for purposes of Rule 15(c), as the Rule may be satisfied by a showing
of constructive notice” such as “if the original complaint alleges that the new defendant
committed the alleged acts and is an official of one of the original defendants” or if the
new defendant “retains the same attorney as an original defendant and that attorney
should have known that the new defendant would be added to the existing lawsuit” or “if
the original and newly named defendants share an identity of interests” because they “are
so closely related in business or other activities and their interests are sufficiently aligned
that it is fair to presume that the new defendant learned of the institution of the action
from the original defendants.”) (internal citations and quotations omitted).
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The third element is not as clear cut. In Cholopy, the court cited a number of
cases which have held that “amendments naming ‘John Doe’ defendants whose identity is
unknown at the time of filing do not relate back under Rule 15(c)(3)” because not
knowing the identity of a defendant is not the equivalent of a mistake in naming a specific
defendant. Cholopy, 228 F.R.D. at 417-18, and cases cited. There is, however, law to
the contrary. See Velez, 145 F. Supp. 2d at 156 (officers who allegedly participated in
inmate’s beating “reasonably should have known that but for a mistake in identity, they
would have been named in the original complaint”). This issue does not need to be
resolved in the instant case. Here, the plaintiff made an express attempt to learn the
identity of those involved in the incident within the limitations period, but was denied the
information by the BCHC. Under such circumstances, the amendment should be
allowed. Otherwise, it “would permit defense counsel to eliminate claims against any
John Doe defendant merely by resisting discovery requests until the statute of limitations
has ended.” Byrd, 964 F. Supp. at 146.
For all these reasons, the claims raised in the amended complaint are timely, and
the amendment is not futile.
b.

SRT Response Team

Finally, defendants argue that all claims based upon the alleged involvement of the
SRT Response Team are futile because there is no evidence that any such team had any
involvement with Perry on the night of the alleged incident. As detailed above, futility of
a proposed amendment “is gauged by reference to the liberal criteria of Federal Rule of
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Civil Procedure 12(b)(6).” Hatch, 274 F.3d at 19. In such circumstances, “amendment is
not deemed futile as long as the proposed amended complaint sets forth a general
scenario which, if proven, would entitle the plaintiff to relief against the defendant on
some cognizable theory.” Id. In the proposed amended complaint, plaintiff alleges that
the SRT Response Team handcuffed Perry’s hands and placed iron shackles on his legs
while assaulting him. Regardless of whether there is evidence to support this claim at the
summary judgment stage, plaintiff has alleged sufficient facts to allow him to proceed
with this claim.
IV. CONCLUSION
For the reasons described above, the “Motion of Plaintiff for Leave to Amend
Complaint” (Docket No. 70) is ALLOWED.

/ s / Judith Gail Dein
Judith Gail Dein
U.S. Magistrate Judge

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