Opinion
C.A. No. 02-1453.
May 18, 2004
MEMORANDUM OPINION AND ORDER
Jamere Montgomery filed this civil rights action against the Chester Police Department, its former Commissioner Wendell Butler, and Officers Kuryan, Jones and Schram. Presently before the court are Montgomery's motion for summary judgment and Butler's motion to dismiss. For the reasons which follow, Montgomery's motion is denied and Butler's motion is granted.
Montgomery filed this action on May 10, 2002. Butler and Schram were not named in the original complaint. By order of October 2, 2002, Montgomery was granted leave to file an amended complaint. He did not actually file it of record, however, until March 28, 2003. The amendment added Butler and Schram as defendants. Service upon Butler was made on August 22, 2003; service was returned unexecuted as to Schram. The allegations of the complaint concern Montgomery's arrest by Chester police on March 16, 2001. As the amended complaint was filed beyond the applicable two-year limitation period and, under Fed.R.Civ.P. 15(c)(3), does not relate back to the original, vis-a-vis Butler, we grant his motion to dismiss.
Montgomery's motion for summary judgment is based upon issues of fact that are clearly in dispute. Under Fed.R.Civ.P. 56, the motion must be denied.
ORDER
The motion of Wendell Butler to dismiss the amended complaint of Jamere Montgomery is GRANTED. Wendell Butler is DISMISSED as a party defendant to this action.The motion of Jamere Montgomery for summary judgment is DENIED.
Trial of this case shall take place on Monday, August 2, 2004 in Courtroom 6B, United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania at 10:00 a.m.
IT IS SO ORDERED.