91 F.3d 451 (3rd Cir. 1996), 95-3427, Urrutia v. Harrisburg County Police Dept.

Docket Nº:95-3427.
Citation:91 F.3d 451
Party Name:Donald URRUTIA v. HARRISBURG COUNTY POLICE DEPT.; Sean McCormack, Asst. D.A.; Denis Thomason, Donald Urrutia, Appellant.
Case Date:July 29, 1996
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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91 F.3d 451 (3rd Cir. 1996)




Denis Thomason, Donald Urrutia, Appellant.

No. 95-3427.

United States Court of Appeals, Third Circuit

July 29, 1996

March 1, 1996.

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Donald Urrutia, Somerset SCI, Somerset, PA, pro se.

Before: BECKER, McKEE, and WEIS, Circuit Judges.

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BECKER, Circuit Judge.

This is an appeal by plaintiff, Donald Urrutia, from an order of the district court dismissing his civil rights complaint, 42 U.S.C. § 1983, as legally frivolous pursuant to 28 U.S.C. § 1915(d), and denying him the opportunity to amend his complaint to correct the defects. The § 1915(d) determination can be prolonged because the matter often goes first to a magistrate judge, who reviews the pleadings and makes a recommendation to the district judge. The principal question presented by the appeal is whether the 120 day period of Fed.R.Civ.P. 15(c)(3) for satisfying the requirements for relation back of an amendment that changes or adds a party is suspended while the district court considers the § 1915(d) question so that the amendment will not be barred by a statute of limitations that expires after the complaint is filed.

The version of section 1915(a) of Title 28 in effect during the time when Urrutia's complaint was under consideration in the district court provided for the filing of a complaint without prepayment of fees by a person who was unable to afford the fees. Section 1915(d), however, permits the district court to consider whether an in forma pauperis complaint is frivolous or malicious before authorizing issuance of the summons and service of the complaint. Some frivolous complaints can be remedied by an amendment pursuant to Fed.R.Civ.P. 15. Where that is so, a district court may not dismiss the complaint as frivolous and must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34, 112 S.Ct. 1728, 1734, 118 L.Ed.2d 340 (1992). An amendment to a complaint must satisfy the statute of limitations, however. If the limitations period has expired, in order to survive, the amendment must relate back to the original complaint under Rule 15(c).

Urrutia alleged in his original complaint that the police, after handcuffing him, stood by and watched while another individual stabbed him. The original filing, which occurred after the magistrate judge ruled that Urrutia could not afford to pay the filing fees under § 1915(a), was within the statute of limitations. The complaint was, however, defective. This is because, even though it alleged misdeeds by individual police officers, instead of naming the individual police officers as defendants Urrutia named the Harrisburg police department itself, and respondeat superior cannot form the basis of liability under 42 U.S.C. § 1983. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976). Urrutia's problem was compounded by the fact that the statute of limitations expired two months after the complaint was filed and about seven weeks before the district court made the § 1915(d) determination.

An amendment to the complaint in which specific police officers would be named as additional defendants, or substituted as defendants, was proposed by Urrutia and would have cured the defect, if it related back under Rule 15(c). Among the several conditions in Rule 15(c) that must be satisfied for an amendment to relate back is that the individuals to be added as defendants must receive such notice of the institution of the action within 120 days of the filing of the complaint that they will not be prejudiced in maintaining a defense on the merits. Here, however, between the magistrate judge and the district judge, the frivolousness determination consumed nearly all of the 120 day period established by Rule 15(c) for an amendment to relate back.

An in forma pauperis plaintiff has no control over the amount of time the district court takes to make the § 1915(d) ruling. Where that time period is lengthy, as it was here, it renders the relation back doctrine essentially unavailable to an in forma pauperis plaintiff, because, by the time the determination is made, even if it is that an amendment will be permitted, the 120 day period will have expired or be close to expiration. Therefore, we hold that, once a plaintiff submits an in forma pauperis complaint within the time provided by the statute of limitations, and after the § 1915(a) in forma pauperis determination is made, the 120 day period of Rule 15(c)(3) for satisfying the requirements for relation back of an amendment that changes or adds a party is suspended

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while the district court considers the § 1915(d) question. If an amendment will cure defects in the complaint, it must be permitted, and upon the filing of an appropriate amendment, the district judge must order issuance of the summons and service of the complaint. See Denton, 504 U.S. at 34, 112 S.Ct. at 1734; see also Roman v. Jeffes, 904 F.2d 192, 195 n. 4 (3d Cir.1990). Upon the entry of that order directing service of the amended complaint, the suspension ends and the 120 day period of Rule 15(c)(3) for service begins to run.

We address today the version of 28 U.S.C. § 1915 in effect during the time when Urrutia's complaint was under consideration in the district court. On April 26, 1996, and while this appeal was pending, the President signed into law the omnibus fiscal year 1996 appropriations measure, which contained amendments to § 1915. Among other things, § 1915 has been amended to require courts to assess an initial partial filing fee of twenty percent of the greater of (1) the average monthly deposits to the prisoner's account; or (2) the average monthly balance in the prisoner's account for the prior six-month period whenever the prisoner's funds are insufficient to pay the full filing fee. In addition, courts are now required to determine whether a prisoner has, on three or more occasions, while incarcerated, brought an action or appeal in a federal court that was dismissed on the grounds that it was frivolous, malicious, or failed to state a claim upon which relief may be granted. If so, the prisoner's new action must be dismissed unless he or she is in imminent danger of serious physical injury.

A new provision, 28 U.S.C. § 1915A, provides that courts shall review, before docketing if feasible, a prisoner's complaint against a governmental entity or officer or employee of a governmental entity to determine whether it may be dismissed as frivolous or malicious, or because it fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. These amendments place additional burdens on the courts and are bound to prolong the § 1915 determination. Our holding today thus retains vitality.

Because we believe that the district court erred in resolving the § 1915(d) question, specifically by refusing Urrutia's request to amend his complaint, and because we believe that Urrutia's proposed amendment will relate back so long as the individual police officers will not be prejudiced in maintaining a defense on the merits, we will vacate the order of dismissal, and remand for further proceedings. 1


Urrutia's in forma pauperis complaint, consisting of an original complaint and an affidavit of poverty, alleged that his due process rights were violated when, on June 9, 1993, Denise Thompson 2 stabbed him in the hand while he was handcuffed and in the custody of the police. 3 The complaint named

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as defendants Thompson, the Harrisburg Police Department, and the Assistant District Attorney of Dauphin County, Sean McCormack. The complaint alleged that the district attorney had been vindictive in deciding to prosecute Urrutia and in dropping all charges against Ms. Thompson. Neither monetary damages nor specific injunctive relief were requested. Instead, complaining that he must serve seven months because of the district attorney's alleged vindictiveness, Urrutia merely asked that "justice be served." Complaint, at Part VI.

On April 5, 1995, the magistrate judge, to whom the in forma pauperis complaint had been referred pursuant to local rule, signed a form order on the affidavit of poverty granting Urrutia leave to proceed without prepayment of fees. The complaint was filed on the same day. The magistrate judge did not order the complaint to be served and service did not take place at this time. 4 Three months later, in July 1995, the magistrate judge filed a Report and Recommendation in which he recommended that the complaint be dismissed as legally frivolous.

In recommending dismissal of the complaint prior to service, the magistrate judge reasoned that the district attorney's decision to drop the charges against Thompson and to prosecute Urrutia was immunized from liability pursuant to Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). Since Thompson was acting as a private citizen, no federal constitutional rights were implicated by her conduct, and the magistrate judge concluded that no liability could be imposed on any member of the police department because there had been no allegation of their indifference to Urrutia's safety in the complaint. Finally, he concluded that the claim against the police department could not stand because a municipality can only be liable under 42 U.S.C. § 1983 if a plan, policy or custom that it initiated violated a plaintiff's constitutional rights, see Monell v. Department of Social Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 2035-36, 56 L.Ed.2d 611 (1978), and that no such circumstance was alleged.

Urrutia filed no objections to the report, but did move for an extension of time in which to amend his complaint. In his motion...

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