Opinion
98-CV-0034E(Sc)
February 14, 2001
ATTORNEYS FOR THE PLAINTIFF: Anna Marie Richmond, Esq., P.O. Box 1215, Buffalo, N.Y. 14213; Gabriel Mills, White Deer, PA 17887.
ATTORNEYS FOR THE DEFENDANT: Lynn S. Edelman, Esq., Asst. United States Attorney, 138 Delaware Ave., Buffalo, N.Y. 14202; Andrew Eisenberg, Esq., Second County Attorney, 69 Delaware Avenue, Suite 300, Buffalo, N.Y. 14202; Kevin J. Keane, Esq., Office of Corporation Counsel, Department of Law, 1100 City Hall, Buffalo, N.Y. 14202.
MEMORANDUM and ORDER
Plaintiff filed this 42 U.S.C. § 1983 action pro se January 13, 1998 alleging that his civil rights had been violated when excessive force was used during his arrest January 26, 1996 causing him to sustain injuries for which he was subsequently denied medical care. The Complaint named Erie County, the City of Buffalo Police Department, the Erie County Sheriff's Department and the Erie County Holding Center as defendants. Judge Skretny dismissed the Complaint February 27, 1998 with leave to file an amended complaint because there was no allegation that the civil rights violations complained of were part of a municipal policy or custom and therefore the municipal defendants were not the proper defendants. Plaintiff accordingly filed an Amended Complaint June 1, 1998 naming Lt. J. Fenger, Det. D. Dill and Det. Hassett of the Buffalo Police Department and Special Agent Adams of the Federal Bureau of Investigation as defendants. Plaintiff was given leave to file a second amended complaint July 9, 1998 and John P. Gullo II, Esq. was assigned as counsel for the limited purpose of assisting him in doing so. Plaintiff filed a Second Amended Complaint September 18, 1998 wherein he added Lt. Brown of the Erie County Sheriff's Office, twelve John Does and one Jane Doe as defendants. On October 8, 1998 this Court directed plaintiff to identify the Doe defendants as soon as possible and then apply to amend the complaint to reflect such. On December 7, 1998 Anna Marie Richmond, Esq. was appointed as counsel for plaintiff. From December 9, 1998 until March 1, 1999 all proceedings in the case were stayed at the request of the United States Attorney, because defendant Adams had requested representation by the Department of Justice and the United States Attorney first had to determine whether Adams had been acting within the scope of his employment and whether it was in the interest of the United States to provide him with the requested representation. This Court on April 11, 2000 dismissed defendants Adams and John Doe #3 (a male F.B.I. Agent) from this case pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") for plaintiff's failure to state a claim against them. On May 31, 2000 plaintiff filed a motion for leave to file a third amended complaint adding twenty seven new named defendants in place of five of the John Does and the Jane Doe. Presently before this Court is plaintiff's motion for leave to serve and file such.
Plaintiff requests that these twenty-seven prospective defendants be joined and that the claims against them in the proposed complaint relate back to the original complaint for purposes of the statute of limitations. Defendants oppose plaintiff's motion on the ground that the period of limitations has expired and that the claims against the new defendants cannot relate back to the original complaint simply because the plaintiff did not then know the identities of the Doe defendants. In the proposed complaint plaintiff has still failed to identify John Does numbers 1, 2, 6, 7, 8 and 9. Plaintiff identifies either proposed defendant Seager or Bettinger as the Jane Doe, either proposed defendant Mayes or Drewniak as John Doe #4, proposed defendant Daniels, Curtin, Burgin or Ryan as John Doe #5 and proposed defendants Markiwicz, Milligan, Huffman, Cathcart, Webster, Geno, Carney, O'Neal or McLead as John Does #10-12. Only proposed defendants Billiter and Sikorski are conclusively identified as John Does #8 and #9, respectively, Proposed defendants Schulz, Baggott, Mulderig, Szpara, Riesz, Sisti, Kelly, Bigelow are not identified as any of the John Does.
A party should be given leave to amend its complaint to add a new party when justice so requires. Blaskiewicz v. County of Suffolk, 29 F. Supp. 134, 137 (E.D.N.Y. 1998). "The party opposing such amendment has the burden of establishing that leave to amend would be prejudicial or futile." Ibid. "A motion to amend the complaint may be considered futile if the claims or parties sought to be added are barred by the relevant statute of limitations." Id. at 138. The statutory period for an action under 42 U.S.C. § 1983 when brought in federal court in New York is three years. Singleton v. City of New York, 632 F.2d 185, 189 (2d Cir. 1980), cert. den., 450 U.S. 920 (1981). A cause of action under section 1983 accrues when the plaintiff "knows or has reason to know of the injury which is the basis of his action." Id. at 191 (quoting Bireline v. Seagondollar, 567 F.2d 260, 263 (4th Cir. 1977), cert. den., 444 U.S. 842 (1979). "In cases applying the Singleton rule, the date of arrest has been used as the accrual date for any subsequent action under section 1983." Ormiston v. Nelson, 117 F.3d 69, 71 (2d Cir. 1997). Plaintiff's section 1983 claim therefore accrued when he was arrested January 26, 1996 and the statute limitations on such claim expired three years thereafter on January 26, 1999.
"It is a general principle of tort law that a tort victim who cannot identify the tortfeasor cannot bring suit." Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997). However, this rule is relaxed in actions brought by a pro se litigant, particularly when she or he is incarcerated and unable to complete an adequate pre-trial investigation. Ibid. In such cases, when the plaintiff is unaware of the defendant's or defendants' identity, it is unnecessary to name her or him or them until the plaintiff can achieve identification through discovery or with the assistance of the court. Ibid. (citing Maclin v. Paulson, 627 F.2d 83, 87 (7th Cir. 1980). "`John Doe' pleadings cannot be used to circumvent statutes of limitations, because replacing a `John Doe' with a named party in effect constitutes a change in the party sued. Such an amendment may only be accomplished when all of the specifications of Fed.R.Civ.P 15(c) are met." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir. 1993). A claim against a new party in an amended complaint relates back to the original complaint for purposes of the statute of limitations under FRCvP 15(c) only if the following requirements are satisfied — viz.,
Internal citations omitted.
"(1) the claim arises out of conduct set forth in the original complaint; (2) the party to be brought in received such notice that it will not be prejudiced in maintaining its defense; (3) that party has reason to know that, but for a mistake of identity, it would have been named in the original complaint; and (4) the second and third requirements have been satisfied within 120 days of the filing of the original complaint and the original complaint was filed within the limitations period." Kamm v. The City of New York, No. 96 CIV 4918 (JFK), 1997 WL 362448, at *3 (S.D.N.Y June 30, 1997).
While the new defendants must have notice of the claim within 120 days of the filing of the original complaint, such that they will not be prejudiced in maintaining a defense, such notice need not be formal. Blaskiewicz, at 138. "Under the doctrine of constructive notice `the court can impute knowledge of a lawsuit to a new defendant government official through his attorney, when the attorney also represented the officials originally sued, so long as there is some showing that the attorney knew that the additional defendants would be added to the existing suit.'" Id. at 139. In deciding whether the government attorney possessed the requisite knowledge, the question is whether the attorney knew or should have known. that the defendants would be named." Ibid.
Internal punctuation and quotations omitted.
Plaintiff satisfies the requirement that the claim against the prospective new defendants arise out of conduct set forth in the original Complaint because the claims against them in the proposed Third Amended Complaint are based on the same events set forth in the original Complaint. The requirement that the new defendants have had notice of the action within 120 days of the filing of the complaint such that they will not be prejudiced in maintaining a defense is also satisfied. The proposed new defendants are all employees of either the Buffalo Police Department or of the Erie County Sheriff's Office and are represented by the same attorneys as are the existing defendants and those attorneys knew that additional defendants would be named because the complaint listed thirteen Doe defendants identified as officers employed by either the City of Buffalo or the County of Erie. Therefore, the prospective new defendants had such constructive notice of this action within 120 days of the filing of the complaint that they would not be prejudiced in maintaining their defense.
Except for John Doe #3, identified as a Special Agent with the Federal Bureau of Investigation; however, he has already been dismissed from this action.
Plaintiff, however, does not satisfy the requirement that the proposed defendants knew or should have known within 120 days of the filing of the original Complaint that but for a mistake in identity the action would have been brought against them earlier.
"Rule 15(c) does not allow an amended complaint adding new defendants to relate back if the newly-added defendants were not named originally because the plaintiff did not know their identities. 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." Barrow v. Wethersfield Police Dept., 66 F.3d 466, 470 (2d Cir.), as modified, 74 F.3d 1366, 1367 (1996).
The undersigned, less than a month after the Second Amended Complaint naming the Doe defendants was filed, specifically instructed plaintiff to identify the Doe defendants and to file a motion for leave to file an amended complaint to reflect such; accordingly plaintiff knew that the Doe defendants had to be named and failure to do so cannot be characterized as a mistake. Barrow, at 469. "Essentially, [plaintiff's] claim is that now that the officers' identities are known., they should be substituted for the `John Doe' defendants. Doing so, however, would be in direct contravention of clear Second Circuit precedent." Doyle v. Coombe, 976 F. Supp. 183, 191 (W.D.N.Y. 1997). In addition, even had the plaintiff made a mistake in the defendants' identity as opposed to simply not knowing their identities, plaintiff would still fail to meet the requirements of FRCvP 15(c) for the Complaint to relate back. The requirement is not only that plaintiff have made a mistake regarding the identities of the defendants, but that the defendants must have also known that but for that mistake they would have been named. Kamm, at *3. Plaintiff named a total of twelve Doe defendants identified as officers of either the Buffalo Police Department or the Erie County Sheriff's Office; however in his proposed Third Amended Complaint, plaintiff names twenty-seven new defendants. It is therefore impossible — assuming that plaintiff had made a mistake in naming the defendants — for all twenty-seven of the prospective new defendants to have known that they were the intended defendant mistakenly named in the complaint. Inasmuch as plaintiff has failed to satisfy all of the requirements of FRCvP 15(c) the proposed Third Amended Complaint cannot relate back to the filing of the original complaint for purposes of the statute of limitations.
Plaintiff alternatively argues that the running of the period of limitations should be tolled. He states that he "filed his original complaint in this action, one year and 13 days prior to the expiration of the statue of limitation [ sic.]. The total delay in processing this matter attributable to the court is 19 months and 11 days. Had plaintiff not incurred these delays, he could have served his discovery requests, obtained the rosters and filed his amended complaint within the applicable statute of limitations period." Richmond Aff. ¶¶ 42-44. The delay plaintiff attributes to this Court is apparently the entire period from the time he filed his original Complaint until he filed his motion for leave to file a. third amended complaint. Although it is true that plaintiff filed his original Complaint "one year and 13 days prior to the expiration of the statute limitation." — Richmond Aff. ¶ 42 —" that complaint was facially invalid and was dismissed with prejudice by Judge Skretny because it did not state a cause action. Plaintiff did not file a valid complaint until June 1998, approximately two and one-half years into the three-year statute of limitations. Before the six months remaining under the statute of limitations had expired, the undersigned appointed Gullo as counsel to plaintiff to assist him in filing a second amended complaint. It is in this Second Amended Complaint, filed September 18, 1998, that plaintiff first named the Doe defendants. Plaintiff therefore had less than five months to identify the Doe defendants and was told of the need to do so by this Court October 8, 1998. Therefore and even assuming that the statute limitations should be tolled during the period that this Court's stay was in effect, the amendment is still not timely. Plaintiff filed his motion for leave to file a third amended complaint May 31, 2000 — over a year and four months after the statutory period of limitations had expired. Thus, even were the statute limitations tolled during the stay, it would still have expired over a year before plaintiff identified the Doe defendants. Allowing plaintiff to file a third amended complaint would be futile because the period of limitations — even if tolled for the period during which this Court's stay was in effect — had already expired before plaintiff filed his motion for leave to file a third amended complaint. Plaintiff has failed to meet the requirements for a relation back to the original complaint for purposes of the statute of limitations and, therefore, leave to file a third amended complaint will be denied.
Accordingly, it is hereby ORDERED that plaintiff's motion for leave to file a third amended complaint is denied and that the caption shall be amended to read
"GABRIEL MILLS, 04207-055, Plaintiff, -vs- LT. J. FENGER, individually and in his official capacity, DET. D. DILL, individually and in his official capacity, DET. HASSETT, individually and in his official capacity and LT. BROWN, individually and in his official capacity, Defendants."