Barrow v. Wethersfield Police Dept.
| Decision Date | 14 September 1995 |
| Docket Number | D,No. 1032,1032 |
| Citation | 66 F.3d 466 |
| Parties | Elgin BARROW, Plaintiff-Appellant, v. WETHERSFIELD POLICE DEPT., Wethersfield, Town of, and John Doe, Officer 1-10, Defendants, Joseph F. Cefaratti, Kevin Dillon, John Karangekis, Arthur Kureczka, Mark Miele and K.M. Monde, Defendants-Appellees. ocket 93-2821. |
| Court | U.S. Court of Appeals — Second Circuit |
Anthony A. Ball, Hartford, CT (Ball and Hill, P.C., of counsel), for plaintiff-appellant.
Michael J. Lefebvre, West Hartford, CT (Sack, Spector & Barrett, of counsel), for defendants-appellees.
Before: OAKES, KEARSE and LEVAL, Circuit Judges.
Elgin Barrow appeals from an order of the United States District Court for the District of Connecticut, Jose A. Cabranes, Judge, dismissing as untimely his claims made under 42 U.S.C. Sec. 1983 against six individual officers in the Wethersfield Police Department. We affirm.
On August 15, 1990, Barrow, who was incarcerated at the time, filed a handwritten pro se complaint with the United States District Court for the District of Connecticut, alleging that certain unidentified officers of the Wethersfield Police Department used excessive force in effecting his arrest on September 12, 1987, in violation of 42 U.S.C. Sec. 1983. The Wethersfield Police Department was the only defendant named in his complaint. On the same date, Barrow filed an application to proceed in forma pauperis pursuant to 28 U.S.C. Sec. 1915(a). On October 16, 1990, the district court dismissed the complaint, sua sponte, under Fed.R.Civ.P. 12(b)(6), without prejudice and prior to the direction of service, on the grounds that a municipality or one of its agencies cannot be held liable under 42 U.S.C. Sec. 1983 solely on the basis of respondeat superior. The court gave Barrow thirty days to amend his complaint.
On March 13, 1991, the court entered a judgment in favor of the Wethersfield Police Department because Barrow failed to amend his complaint. On April 5, 1991, Barrow filed a document with the court which explained that he had not received the court's October 16, 1990, ruling, and also sent a new complaint which named as defendants the Wethersfield Police Department, the Town of Wethersfield and "Whethersfield [sic] Police Officer's, [sic] Et Al."
On May 22, 1991, the district court vacated its March 13, 1991, judgment dismissing the action, but, again finding Barrow's second complaint insufficient, the court instructed Barrow to amend his complaint on or before June 21, 1991. At this time, the court instructed Barrow to add the individual police officers as defendants, and specifically directed Barrow "to make every effort to obtain the names of the police officers who participated in his arrest on September 12, 1987." Barrow v. Wethersfield Police Dept., No. N-90-571 (JAC), at 2 .
On July 1, 1991, Barrow filed a third complaint which named as defendants the Wethersfield Police Department, the Town of Wethersfield, and ten "John Doe" officers. On July 24, 1991, presumably finding the complaint sufficient, the court ordered the complaint served on the defendants. On or about August 1, 1991, a United States Marshal served the Town and the Police Department and attempted to serve the ten "John Doe" defendants, but the Chief of the Wethersfield Police refused to accept process on behalf of unknown officers.
On September 10, 1991, Barrow moved for the appointment of pro bono counsel. The district court granted the motion the same day, and on September 23, 1991, a lawyer was appointed for Barrow. On January 16, 1992, Barrow, through his appointed counsel, moved to amend his complaint pursuant to Fed.R.Civ.P. 15. The proposed complaint named as defendants six officers of the Wethersfield Police Department: Joseph F. Cefaratti, Kevin Dillon, John Karangekis, Arthur Kureczka, Mark Miele and K.M. Monde. Barrow's motion was granted on March 4, 1992, and the complaint was served on the six officers on May 2 and 4, 1992.
On May 11, 1992, the six officers moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) on the theory that the allegations set forth in the complaint were barred by the three-year statute of limitations applicable to Barrow's Sec. 1983 claims. See Owens v. Okure, 488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Conn.Gen.Stat. Sec. 52-577. The district court granted the motion on June 10, 1992. The court found that Barrow's claims arose from an incident which took place on September 13, 1987. 1 Thus, the court found, the only pleading filed within the statute of limitations--by September 12, 1990--was the original complaint which was filed on August 15, 1990. The court noted that defendants' attorneys were not served with a complaint until August 7, 1991, considerably after the limitations period had expired. The court concluded that Barrow had "made no showing that the six individual defendants had even constructive knowledge of the claims against them within 120 days of the court's receipt of the initial complaint." Barrow, No. N-90-571 (JAC) (D.Conn. June 10, 1992).
Barrow appealed.
Barrow's argument on appeal is twofold. Barrow argues, first, that we should adopt the policy set forth by the Seventh Circuit in Paulk v. Department of Air Force, 830 F.2d 79, 82-83 (7th Cir.1987)--that the statute of limitations of a pro se plaintiff's claim is tolled during the pendency of an accompanying motion to proceed in forma pauperis under 28 U.S.C. Sec. 1915, because in such cases the court, rather than the pro se plaintiff, is responsible for the issuance of the summons and the service of the complaint. Should we adopt the holding in Paulk, Barrow argues, the limitations period on his Sec. 1983 claims would have been tolled from the date he filed his original complaint and motion under Sec. 1915(a)--August 15, 1990--to the date on which the Town and the Police Department were served pursuant to the district court's order with the complaint listing the "John Doe" officers--August 7, 1991.
Barrow concedes that even if the limitations period were thusly tolled, his amended complaint identifying the individual police officers by name was filed outside the limitations period. He argues, however, secondly, that the amended complaint relates back under Fed.R.Civ.P. 15(c)(3) to the complaint naming the "John Doe" officers which was served on the Town and the Police Department and, therefore, was timely. Because we cannot agree with Barrow's reading of Rule 15(c)(3), we need not address his tolling argument.
We have stated that "[i]t is familiar law that '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." Aslanidis v. United States Lines, Inc., 7 F.3d 1067, 1075 (2d Cir.1993) (internal citations omitted). Thus, "[s]uch an amendment may only be accomplished when all of the specifications of Fed.R.Civ.P. 15(c) are met." Id.
As an initial matter, we note that Rule 15(c) was amended effective December 1, 1991--after Barrow's complaint was served on the Town and the Police Department, but before his amended complaint identifying the officers by name was filed and served. The district court and the parties in their briefs assumed that the amended version of the rule applies to this case. Consequently, we asked the parties to address at oral argument which version of the rule should apply. See Barrow v. Cefaratti, No. 93-2821 (2d Cir. March 16, 1995). The Supreme Court, in its 1991 order amending the Federal Rules of Civil Procedure, expressed its intention that "insofar as just and practicable," the amended versions of the rules should govern cases pending in the district courts on December 1, 1991. Order of April 30, 1991, Adopting Amendments to Federal Rules of Civil Procedure. Were the amendment to the rule material to the outcome of this case, we might remand to the district court for a determination of whether applying the amended version would be "just and practicable." See Woods v. Indiana Univ.-Perdue Univ., 996 F.2d 880, 885-86 (7th Cir.1993). We need not do so here, as the case turns on a requirement of Rule 15(c) which exists in both the pre- and post-amendment versions of the rule.
Prior to the 1991 amendments, under Rule 15(c) an amended complaint adding a new party related back to an original complaint if each of the following conditions were met:
(1) the claim must have arisen out of conduct set out in the original pleading; (2) "the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense"; (3) that party should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third criteria must have been fulfilled within the established limitations period.
Aslanidis, 7 F.3d at 1075-76 (quoting Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct. 2379, 2384, 91 L.Ed.2d 18 (1986)). 2 Under
the revised Rule 15(c), the first three requirements set out above are retained, but the fourth criteria is changed: an amended complaint relates back to the original if the second and third criteria are fulfilled within 120 days of the filing of the original complaint, and if the original complaint were filed within the limitations period. Commentary to Rule 15; Aslanidis, 7 F.3d at 1076. 3 Most importantly for this case, both versions of the rule allow an amended complaint adding a new party to relate back to the original complaint only if the new party "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) (1987) & Fed.R.Civ.P. 15(c)(3) (1991) (emphasis added).
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