Opinion
CIVIL ACTION No. 03-02.
July 10, 2003.
MEMORANDUM AND ORDER
Plaintiff Ernestine Taylor brought suit pursuant to 42 U.S.C. § 1983 in this Court on May 9, 2002 alleging violations of her rights under the United States Constitution in connection with the forced, warrantless entry into her home of several law enforcement officers. Defendants in this case are: the District Attorney's Narcotics Enforcement Team ("DANET") of Berks County, Pennsylvania; John Doe Detectives of DANET; the City of Reading, Pennsylvania; John Doe Detectives of the Police Force of the City of Reading; William Heim, the Police Chief of the City of Reading; John Doe Detectives of the City of Reading; the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control; and John Doe Detectives of the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control. Presently before the Court are the Motion to Dismiss by Defendants County of Berks and DANET, and the Motion to Dismiss or, Alternatively, for a More Definite Statement by Defendants the City of Reading and William Heim. Also before the Court are Plaintiff s Motion for Enlargement of Time to Serve the Complaint, Plaintiff's Motion for Leave to Amend the Complaint, and Plaintiff's Motion to Vacate the Court's November 22, 2002 Order Dismissing the Complaint Without Prejudice.
I. FACTUAL BACKGROUND
The following facts are alleged in Plaintiff's Complaint. On May 6, 2000, Ms. Taylor was in her Reading, Pennsylvania residence when detectives, John Doe Defendants in this case, broke down Plaintiff's back door without warning and entered the residence with guns drawn. The detectives proceeded to search the residence, and numerous other employees of the city, county and state entered Plaintiff's home. Although the officers had obtained a search warrant, none was ever shown to Plaintiff. Moreover, the search warrant obtained by the officers could not have related to the residence occupied by Plaintiff, and no exigent circumstances were present.
Plaintiff commenced this action, first docketed as 02-2659, on May 3, 2002 by filing a Motion for Leave to Proceed In Forma Pauperis. On May 9, 2003, the Court granted the motion and ordered the United States Marshals Service (hereafter, "Marshals") to serve summons and Complaint on all defendants. Plaintiff sued, pursuant to 42 U.S.C. § 1983, for violations of her rights under the Fourth Amendment and the Due Process Clause of the Fourteenth Amendment. She named the individual defendants both in their individual and official capacities and sought monetary damages.
There is some dispute as to what then happened with respect to service of the Complaint. The record reflects that: (a) on May 9, 2002, four original summons were sent to the Marshals (b) on June 21, 2002 Plaintiff filed a Praecipe to Issue Alias Summons to the Plaintiff "so that she may serve the four named defendants" (c) the same day, four alias summonses issued as to Chief Heim, the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control, the County of Berks, and the City of Reading; (d) on September 11, 2002, the Marshals returned the four original summonses unexecuted, along with a note indicating that Plaintiff had failed to respond to three separate requests that she complete necessary forms; and (e) on October 21, 2002, and during early November, 2002, Plaintiff's counsel made service of the summons and complaint on detectives of DANET and returned the summonses executed as to Chief Heim, the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control, the City of Reading and the County of Berks. Shortly thereafter, Defendants filed motions to dismiss. On November 22, 2002, the Court dismissed the Complaint without prejudice, directed Plaintiff to "refile" her complaint and make service thereof within 30 days, and denied Defendants' motions as moot.
Plaintiff re-filed her Complaint on January 2, 2003, and provided the Marshals with four summonses as to the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control, the County of Berks, Chief Heim, and the City of Reading. The Court again granted Plaintiff's motion to proceed in forma pauperis, ordered the Marshals to make service of the Complaint and Summons, and directed the Clerk to assign the case a new docket number. On February 12, 2003, the City of Reading and Chief Heim waived service. Again, Defendants moved to dismiss. After Counsel for Plaintiff failed to timely file a response to these motions and violated her duty of candor to the Court, on May 15, 2003, the Court disqualified Plaintiff's counsel and ordered that a suitable replacement be found. Plaintiff engaged new counsel, who filed the motions and response presently before the Court.
II. DISCUSSION
Defendants move to dismiss the complaint on a number of grounds, including the contention that Plaintiff s claim is barred by the applicable statute of limitations. Plaintiff, as noted, has moved for more time to serve the complaint, leave to amend the complaint, and an order vacating the Court's November 22, 2002 Order dismissing the case without prejudice. Recognizing that the Court erred in its prior efforts to enable Plaintiff to properly file and serve a complaint in this action, I grant Plaintiff's motions in part and deny Defendants' motions as moot. Plaintiff's new counsel may undertake discovery and file and serve an amended complaint. Thereafter, of course, Defendants may again move to dismiss the amended complaint.
A. Vacation of Order Dismissing Complaint
Section 1983 does not provide a statute of limitations. "The general rule is that when a federal statute provides no limitations for suits, the court must look to the state statute of limitations for analogous types of actions." Beauty Time, Inc. v. Vu Skin Sys., Inc., 118 F.3d 140 (3d Cir. 1997); Wilson v. Garcia, 471 U.S. 261, 276-80 (1985) (in § 1983 actions, federal courts apply the state statute of limitations governing actions for personal injury). Pennsylvania applies a two-year statute of limitations to § 1983 claims. See Nelson v. County of Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995), cert. denied, 516 U.S. 1173 (1996). Here, the incident giving rise to Plaintiff's claims occurred May 6, 2000, giving Plaintiff until May 6, 2002 to file suit. Thus, Defendants argue, the Court's dismissal of Plaintiff's complaint without prejudice on November 22, 2002, six months after the statute of limitations had expired, barred Plaintiff from refiling. Plaintiff contends that the Court's order of November 22, 2002 dismissing the original complaint and expressly directing Plaintiff to re-file her complaint and make service thereof was not a "final order" and thus the statute of limitations did not expire. While, as a general matter, an order dismissing a complaint without prejudice is not a final and appealable order, it becomes such once the statute of limitations has run and the plaintiff no longer can amend the complaint. Newark Branch, NAACP v. Harrison, 907 F.2d 1408, 1416 (3d Cir. 1990). The proper course of action for courts wishing to permit plaintiffs to re-file the complaint after the statute of limitations period has lapsed, therefore, is to grant an extension of time for service. Petrucelli v. Bohringer Ratzinger, GMBH, 46 F.3d 1298, 1304 n. 6 (3d Cir. 1995).
As Plaintiff correctly avers, the Court's purpose in issuing the November 22, 2002 Order was to have the Complaint served by the Marshals on all Defendants without prejudicing the cause of action by dismissing the case beyond the statute of limitations. Rather than dismissing the complaint, as I did, therefore, I will vacate the November, 2002 Order so that Plaintiff may proceed with this action. Federal Rule of Civil Procedure 60(b)(1) provides that "on motion and upon such terms as are just," the court may relieve a party from a final order for "mistake." The decision to grant or deny relief pursuant to Rule 60(b) lies in the "sound discretion of the trial court guided by accepted legal principles applied in light of all the relevant circumstances." Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981). Given the circumstances present in this case, I vacate the Court's Order of November 22, 2002.
Unfortunately, as is set forth below, the actions of Plaintiff's former counsel will prevent her from proceeding against individual detectives and officers.
B. Leave to File Amended Complaint
Plaintiff has indicated that the amended complaint will "include more specific facts, the identities of Defendants and Defendants' agents, employees and servants relating to actions taken in the scope of their employment as well as all protocols regarding the service of search warrants." (Pl.'s Mem. of Law of May 23, 2003.) Plaintiff's Complaint names "John Doe" Detectives of DANET, Detectives of the City of Reading, and Detectives of the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control. Accordingly, Defendants contend that Pennsylvania state law prohibiting the filing of an amended complaint that brings a new party into the suit bars Plaintiff from filing the amended complaint as described.
Notwithstanding Pennsylvania law, federal law governs whether Plaintiff may file an amended complaint in this case once the statute of limitations has expired. See Trautman v. Lagalski, 28 F. Supp.2d 327, 329 (W.D. Pa. 1998) (citing Simmons v. S. Cent. Skyworker's, Inc., 936 F.2d 268, 270 (6th Cir. 1991)) (holding that federal law governs "relation back" issue). Amendments replacing John Doe with a party's real name after the statute of limitations has run are permitted as long as the requirements of Federal Rule of Civil Procedure 15(c) are satisfied. Trautman, 28 F. Supp.2d at 330 (holding that plaintiff, under Rule 15(c) could file an amended complaint correcting caption to include actual name of "John Doe" police officer after statute of limitations had run in § 1983 action) (citing Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977) (rule 15(c) requirements satisfied even though plaintiff initially listed "John Doe" as a defendant); Nelson v. County of Allegheny, 60 F.3d 1010, 1014, n. 6 (3d Cir. 1995) (noting that Varlack held that replacement of a "John Doe" caption with party's real name amounted to "changing a party," warranting application of Rule 15(c))). Federal Rule of Civil Procedure 15(c) permits a party to amend its pleading by leave of court "and leave shall be freely given when justice so requires." The issue, then, is whether Plaintiff's amended complaint may relate back to the original filing date in order to avoid the statute of limitations.
Federal Rule of Civil Procedure 15(c)(1) allows relation back where it is permitted by the law that provides the statute of limitations applicable to the action. Pennsylvania does not provide a "more forgiving principle of relation back" than does federal practice. See Aivazoglou v. Drever Furnaces, 613 A.2d 595, 599 (Pa.Super. 1992) (adhering to the "well established rule that new parties cannot be introduced into a suit by amendment following expiration of the period of the statute of limitations"). Thus, neither rule 15(c)(1) nor Pennsylvania law are of help to Plaintiff.
Federal Rule of Civil Procedure 15(c)(3), which governs the relation back of amended complaints which change the identity of a party, provides in relevant part:
An amendment of a pleading relates back to the date of the original pleading when . . . (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision [15(c)](2) is satisfied, and within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Federal Rule of Civil Procedure 15(c)(2), which must be satisfied in conjunction with 15(c)(3), permits an amended complaint to relate back to the original filing date where the claim asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth in the original pleading. Courts apply 15(c)(2) in such a way as to "ensure defendants notice of the conduct that is ultimately challenged in court." EEOC v. Westinghouse Elec. Corp., 632 F. Supp. 343, 364 (E.D. Pa. 1986) aff'd in part, vacated in part on other grounds, 869 F.2d 696, 704 (3d Cir. 1989), vacated on other grounds, 493 U.S. 801 (1989). Here, while there is some dispute as to the timing and efficacy of service of the Complaint, it is difficult to adopt Defendants' position that the unnamed officers "had no prior knowledge of the suit." (Defs.' Mem. of Law of June 9, 2003.) As noted, in November, 2002, Plaintiff's counsel made service of the summons and complaint on detectives of DANET and returned the summonses executed as to Chief Heim, the Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control, the City of Reading and the County of Berks. These entities are all alleged employers of the unnamed defendant detectives and officers. The Complaint clearly identifies the date, location and nature of the incident giving rise to Plaintiff's claims. Defendants acknowledge that the alleged incident did, in fact, occur. In order to ascertain the facts necessary to formulate a position, Defendants undoubtedly communicated with at least some of the officers and detectives involved. See Trautman, 28 F. Supp.2d at 329-330 ("It would be unlikely that [John Doe officer] would be unaware of a suit commenced against his partner for actions allegedly undertaken while the officers were on duty together. Certainly the officers' superiors would have questioned [named officer and John Doe officer] regarding allegedly improper conduct undertaken while on duty."). I conclude that the requirements of Federal Rule of Civil Procedure 1 5(c)(2) are satisfied because the amendments to the complaint outlined by Plaintiff arose out of the conduct, transaction, or occurrence set forth in the original pleading. Accordingly, to the extent the Amended Complaint contains "more specific facts," and allegations relating to "all protocols regarding the service of search warrants," it may relate back to the date of the original complaint under Federal Rule of Civil Procedure 15(c)(2).
Rule 15(c)(3) adopts the time period specified in Rule 4(m), which provides, in pertinent part:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.
Litigants proceeding informapauperis are entitled to rely on the Marshals to effect proper service and will not be penalized for failure to effect service where that failure is not the litigant's fault. See Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987); Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir. 1986).
Here, Plaintiff s Complaint and the alias summonses were not served on any Defendant until October 21, 2002, some 178 days after the Complaint was filed and 58 days beyond the deadline for service under Rule 4(m). Plaintiff does not explain the failure of her former counsel to make timely service of the Complaint and alias summonses, nor her apparent failure to respond to the Marshals' request that she complete the necessary forms. She contends generally that any failure by the Marshal to timely serve the Complaint was "through no fault of [Ms.] Taylor." (Pl.'s Mem. of Law at 5.) Although an in forma pauperis plaintiff may rely on the U.S. Marshal to effectuate service, she must herself be diligent in supporting the effort to reach that goal. See Fowler, 899 F.2d at 1095 (analyzing whether informapauperis plaintiff "made sufficient efforts to ensure that proper service was made"); Romandette, 807 F.2d at 311 (holding that trial court's dismissal for failure to effect service was abuse of discretion where plaintiff had done everything in his power to effect personal service through Marshals); Rochon, 828 F.2d at 1107 (holding that in forma pauperis litigant is entitled to rely on Marshals for service and should not be penalized where failure to serve is through no fault of the litigant).
In any case, I do not have the discretion under Rule 15(c)(3) that I do under Rule 4(m) to allow untimely service for "good cause" or otherwise. See, e.g., Petrucelli, 46 F.3d at 1307 (holding that even in absence of good cause, Rule 4(m) gives court discretion to extend time for service). Rule 15(c)(3) adopts Rule 4(m)'s 120 day requirement as the basis for the deadline by which the new party must have received "such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits." Here, although I conclude that the unnamed defendants would have had such notice once the named defendants were served, Plaintiff did not serve the named defendants until well after the deadline imposed by the Rule.
The shortcomings of Plaintiff's former counsel have already been discussed at length in the Memorandum and Order of May 15, 2003 disqualifying her. Although it is still early in the litigation, it is now clear that the unexplained failure of Plaintiff's former counsel in the process of serving Defendants will likely have a substantial negative impact on Plaintiff's ability to recover for her injuries through the instant action. Because she cannot proceed against any of the as-yet-unnamed detectives or officers in their individual capacities, she has perhaps lost her most promising avenue of recompense. Had Plaintiff's counsel served the named defendants within the time period required by Federal Rule of Civil Procedure 4(m), my analysis above points to the conclusion that I would likely have found that Rule 15(c)(3)'s requirements were met, thereby enabling Plaintiff to identify the Doe defendants in her amended complaint, and to proceed against them individually.
In sum, because the statute of limitations period has passed, Plaintiff must comply with Federal Rule of Civil Procedure 15(c) in order to amend her complaint by adding claims and identifying the John Doe defendants. Under the Rule, because of her failure to provide timely notice to the proposed new parties, she may only amend with respect to claims and not parties.
Defendants incorrectly propose, citing Boykins v. Ambridge Area School District, 621 F.2d 75 (3d Cir. 1980) that Plaintiff is required to name "the specific officers" in order to survive a motion to dismiss. However, the Supreme Court has rejected heightened pleading standards under the Federal Rules of Civil Procedure for almost all claims except fraud and mistake. See Leatherman v. Tarrant County Narcotics Intelligence and Coord. Unit, 113 S.Ct. 1160, 1163 (1993); Pulcinella v. Ridley Twp., 822 F. Supp. 204, 210, n. 6 (E.D. Pa. 1993) ("Of course, the heightened specificity pleading 'requirement' for civil rights complaints is no longer the law") (citing Leatherman). Here, Plaintiff has set forth facts sufficient to satisfy these pleading standards. She has alleged the conduct violating her rights (unlawful entry into her home), time (May 3, 2000), place (Reading) and those responsible (detectives and officers employed by the named defendants). These allegations provide ample basis under the Federal Rules of Civil Procedure for the named defendants to answer the complaint.
C. Parameters of Amended Complaint
Because of the somewhat unusual result reached herein, I will endeavor to set forth the legal parameters of the amended complaint for the benefit of the parties. First, DANET cannot be sued directly because it is merely an arm of the County of Berks. See Open Inns v. Chester County Sheriff's Dep't, 24 F. Supp.2d 410, 417 (E.D. Pa. 1998). Plaintiff need not amend that portion of the caption naming "County of Berks, A Political Subdivision of the Commonwealth of Pennsylvania (District Attorney's Narcotics Enforcement Team)," however. County of Berks has rightly regarded itself as a named defendant in the case under that caption, and should continue to do so.
Second, Plaintiff's claims against the County of Berks and the City of Reading, pursuant to § 1983 for violations of her Fourth and Fourteenth Amendment rights can proceed only under Monell v. Department of Social Servs. of the City of New York, 436 U.S. 658, 690-695 (1978) and its progeny, as municipal liability for § 1983 claims cannot be based on respondeat superior. Plaintiff's claims against Chief William Heim in his official capacity must be treated as claims against the City of Reading itself. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that suit against "state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office"). Of course, in order to prevail on a Monell claim against the municipalities at trial, Plaintiff will still have to prove that she suffered a constitutional injury at the hands of individual officers and detectives, though they are not parties. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Third, to proceed on her claims against Chief William Heim in his individual capacity, Plaintiff must allege that Chief Heim was directly and actively involved in the alleged unconstitutional conduct of the officers and detectives. See Brown v. Grabowski, 922 F.2d 1097, 1119-20 (3d Cir. 1990). Chief Heim, of course, may be entitled to a qualified immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), if his conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known.
III. CONCLUSION
For the reasons set forth above, I vacate the Order of November 22, 2003 dismissing the Complaint without prejudice, and grant in part Plaintiff s motion leave to file an amended complaint. I also deny Defendants' motions to dismiss as moot. An appropriate Order follows.
ORDER
AND NOW, this 10th day of July, 2003 upon consideration of the Motion to Dismiss by Defendants County of Berks and the District Attorney's Narcotics Enforcement Team, the Motion to Dismiss or, Alternatively, for a More Definite Statement by Defendants the City of Reading and William Heim, Plaintiff's Motion for Enlargement of Time to Serve the Complaint, Plaintiff's Motion for Leave to Amend the Complaint, and Plaintiff's Motion to Vacate the Court's November 22, 2002 Order Dismissing the Complaint Without Prejudice, and the responses thereto, it is hereby ORDERED that:
1. The Motion to Dismiss by County of Berks (Document No. 5) is DENIED AS MOOT.
2. The Motion to Dismiss by William Heim and the City of Reading (Document No. 7) is DENIED AS MOOT.
3. Plaintiff's Motion for Enlargement of Time to Answer Defendants' Motions to Dismiss (Document No. 23) is DENIED AS MOOT.
4. Plaintiff's Motion for Leave to Amend the Complaint (Document No. 23) is GRANTED in part as follows:
a. Plaintiff shall file an Amended Complaint by July 25, 2003.
b. Plaintiff's amended complaint may add new claims and allegations, but may not add new parties.
5. Plaintiff's Motion to Vacate this Court's Order of November 22, 2002 (Document No. 23) is GRANTED. This Court's Order of November 22, 2002 dismissing Plaintiff's complaint (Docket No. 02-2659, Document No. 13) is VACATED.
6. Plaintiff's Motion for Enlargement of Time to Serve Complaint Upon Commonwealth of Pennsylvania Bureau of Narcotics Investigation and Drug Control (Document No. 24) is DENIED AS MOOT.