Opinion
00 C 7879
November 7, 2003
Plaintiff Gary Whitmore brings this action under 42 U.S.C. § 1983, alleging excessive force by Cook County sheriffs deputies in connection with a court appearance at the Criminal Courts Building in Cook County, Illinois. The complaint originally named as defendants Deputy Sheriffs Timothy Herlihy and Joseph Boyle. Defendants moved for summary judgment on the basis that Whitmore failed to exhaust his administrative remedies. On August 29, 2002, I denied this motion. On April 17, 2003, Whitmore was permitted to file an amended complaint, which he did on April 25, 2003. The amended complaint named Cook County Sheriff Michael F. Sheahan. The Sheriff now moves to dismiss the complaint against him, claiming that Whitmore violated the applicable statute of limitations.
The incident at issue in this case occurred on December 14, 1998, so the two year statute of limitations for § 1983 actions expired before Whitmore amended his complaint to name the Sheriff. See Johnson v. Rivera, 272 F.3d 519, 521 (7th Cir. 2001). Therefore, Whitmore can only amend his complaint to name the Sheriff if he meets the requirements of Federal Rule of Civil Procedure 15(c), which provides that amendments may relate back to the date of the original complaint when:
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (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.
Fed.R.Civ.P. 15(c). In order to bring in the Sheriff, Whitmore must meet the requirements in subparagraph (3) of Rule 15(c).
Whitmore argues that Rule 15(c)(3)(A) is met because the Sheriff has not been prejudiced by being added as a defendant. However, Whitmore concedes that the failure to include the Sheriff as a defendant in the original complaint was not the result of a mistake, as required by Rule 15(c)(3)(B). See Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993). Moreover, it is clear from the face of the original complaint that its allegations of excessive force were directed solely at the named sheriffs deputies and would not have put the Sheriff on notice that he should have been a proper party in the litigation. Whitmore provides no case law, and the Court has found none, supporting the notion that there is an exception to Rule 15(c)(3)'s requirements in these circumstances. See Whitehead v. Malone, No. 00 C 7421, 2002 WL 849583 (N.D. Ill. May 3, 2002); see also DuBois v. Winnebago County Sheriff's Dept., No. 03 C 50294, 2003 WL 21751841 (N.D. Ill. Jul. 29, 2003), Wince v. Sheahan, No. 02 C 4952, 2003 WL 21799932 (N.D. Ill. Jul. 25, 2003).
Therefore, the Sheriffs Motion to Dismiss Count II of Plaintiff s Amended Complaint is GRANTED.