Mwangi v. Norman et al

Filing 79

RECOMMENDATION AND ORDER OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 12/13/16. The Court respectfully RECOMMENDS that: The Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendants Anthony Norman, Justin K ennedy, and Perry Speelman [#28] be GRANTED IN PART and DENIED IN PART; that Plaintiffs claim for a violation of due process rights under the Fourteenth Amendment (Count III) be DISMISSED, which leaves the excessive force claim as the sole cause of a ction against Defendants Norman, Kennedy, andSpeelman; and that the Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Vincent Talty [#57] be GRANTED and all claims against Defendant Talty be DISMISSED based on the statute of limitations . The Court ORDERS The Motion to Strike Surreply [#64] is GRANTED; The Motion Requesting A Scheduling Conference [#71] is DENIED; and the Motion to Stay [#76] is GRANTED. (Attachments: # 1 Attachment 1, # 2 Attachment 2, # 3 Attachment 3, # 4 Attachment 4, # 5 Attachment 5, # 6 Attachment 6, # 7 Attachment 7) (nmarb, ) Modified on 12/13/2016 to add word ORDER. (nmarb, ).

Martinez v. Gabriel, Not Reported in F.Supp.2d (2012)
2012 WL 1719767

2012 WL 1719767
Only the Westlaw citation is currently available.
United States District Court,
D. Colorado.
Gema MARTINEZ, Plaintiff,
v.
Denver Police Officer Michael GABRIEL, in his
individual capacity, and Denver Police Officer David
Archuleta, in his individual capacity, Defendants.
Civil Action No. 10–cv–02079–CMA–MJW.
|
May 15, 2012.
Attorneys and Law Firms
David Arthur Lane, Tiffany Jo Drahota, Killmer, Lane &
Newman, LLP, Denver, CO, for Plaintiff.
Sean Timothy Olson, Bruno, Colin, Jewell & Lowe, P.C.,
Denver, CO, for Defendants.

ORDER GRANTING DEFENDANT ARCHULETA'S
MOTION FOR JUDGMENT ON THE PLEADINGS
CHRISTINE M. ARGUELLO, District Judge.
*1 This matter is before the Court on Defendant David
Archuleta's Motion for Judgment on the Pleadings, filed
on April 9, 2012. (Doc. # 71.) In this motion, Defendant
Archuleta requests that the Court dismiss the claims
pending against him as time-barred.

I. BACKGROUND
In this § 1983 action, Plaintiff Gema Martinez alleges
that, on August 27, 2008, Denver police officers conducted
an unlawful entry and search of her home in violation
of the Fourth Amendment. Exactly two years later,
Plaintiff filed her original Complaint. (Doc. # 1.) In her
original Complaint, Plaintiff named as defendants the
City & County of Denver, Denver Police Officer Michael
Gabriel, two John Doe Denver Police Officers, and two
John Doe Animal Control Officers.

On January 21, 2011, Plaintiff amended her complaint
to add four defendants in place of the four John Does,
including Defendant Archuleta. 1 (Doc. # 20.) In the
instant motion, Defendant Archuleta moves to dismiss
the claims against him, asserting that such claims are
barred by the two-year statute of limitations. See Braxton
v. Zavaras, 614 F.3d 1156, 1160 (10th Cir.2010) (the
statute of limitations on an action brought under § 1983
in Colorado is two years from the time the cause of
action accrued). Plaintiff responded on April 30, 2012, and
Defendant Archuleta replied on May 2, 2012. (Doc.72,
73.)

II. STANDARD OF REVIEW
A motion for judgment on the pleadings under
Fed.R.Civ.P. 12(c) is governed by the same standard of
review applicable to a motion to dismiss under Rule
12(b)(6). Nelson v. State Farm Mut. Auto. Ins. Co., 419
F.3d 1117, 1119 (10th Cir.2005). Federal Rule of Civil
Procedure 12(b)(6) provides that a party may move to
dismiss a claim for relief in any pleading for “failure to
state a claim upon which relief can be granted. The Court
accepts all well-pleaded allegations in the complaint as
true and views them in the light most favorable to the nonmoving party. Id. Dismissal under Rule 12(b)(6) should
only be granted when it appears that the non-moving
party can prove no set of facts in support of the claims that
would entitle the plaintiff to relief. Id.

III. ANALYSIS
It is not disputed that Plaintiff added Mr. Archuleta as
a defendant after the two-year statute of limitations had
run. Plaintiff contends, however, that her claims against
Defendant Archuleta should not be dismissed as timebarred because her amended complaint “relates back to
the date of the original pleading” under Fed.R.Civ.P.
15(c).
An amended complaint relates back to the filing of the
original complaint when:
The amendment changes the party or the naming of the
party against whom a claim is asserted, if Rule 15(c)(1)
(B) is satisfied and if, within the period provided by Rule

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Martinez v. Gabriel, Not Reported in F.Supp.2d (2012)
2012 WL 1719767

4(m) for serving the summons and complaint, the party
to be brought in by amendment:
(i) received such notice of the action that it will not be
prejudiced in defending on the merits; and
*2 (ii) knew or should have known that the action
would have been brought against it, but for a mistake
concerning the proper party's identity.
Fed.R.Civ.P. 15(c)(1)(C).
Plaintiff says that she satisfied the requirements of Rule
15(c) because Defendant Archuleta had both actual and
constructive knowledge of Plaintiff's lawsuit within the
Rule 4(m) time period. This may be true. However,
Plaintiff ignores another requirement of Rule 15(c)—
that she made “a mistake concerning the proper party's
identity.” The Tenth Circuit holds that “a plaintiff's lack
of knowledge of the intended defendant's identity is not
a ‘mistake concerning the identity of the proper party.’
“ Garrett v. Fleming, 362 F.3d 692, 696 (10th Cir.2004)
(quoting Wayne v. Jarvis, 197 F.3d 1098, 1103–04 (11th
Cir.1999)). Thus, as a matter of law, Plaintiff did not make
a “mistake” within the meaning of Rule 15(c) regarding
the identities of the parties she intended to sue. 2 See id.
Rather, Plaintiff did not know who the proper parties
were and apparently did not find out until after the twoyear limitations period had expired. The relation-back
provisions of Rule 15(c) were not designed to correct this
type of problem. See id. (“A plaintiff's designation of an
unknown defendant as ‘John Doe’ is not a formal defect
of the type Rule 15(c)[ ] was meant to address.”).
In attempting to bypass the Tenth Circuit's decision in
Garrett, Plaintiff contends that the Supreme Court's recent
decision in Krupski v. Costa Crociere S.P.A. renders
Garrett obsolete. The Court disagrees. In Krupski, the
plaintiff knew of two potential parties when she filed her
lawsuit, but she sued the wrong party and corrected the
mistake only after the statute of limitations had expired.
See 130 S.Ct. 2485, 2490–92 (2010). Although the plaintiff
knew the identity of the proper party when she filed

her original complaint, the Supreme Court held that this
constituted a mistake because the defendant “knew or
should have known that it would have been named as
a defendant but for an error.” Id. at 2493 (emphasis
added). The plaintiff's problem in Krupski is not Plaintiff's
problem. Unlike the plaintiff in Krupski, Plaintiff made no
mistake regarding which defendant to sue; Plaintiff simply
did not discover the identity of Defendant Archuleta
before the statute of limitations period expired. And
because Plaintiff waited until the very last day of the
limitations period to file her original complaint, Plaintiff
left herself with no time to amend the complaint upon
discovering the identity of Defendant Archuleta.
Filing a complaint against nameless defendants is not
a mechanism by which the plaintiff receives extra time
to discover the John Doe identities. Even after Krupski,
Plaintiff's amended complaint does not relate back to her
original complaint because her original complaint did not
contain a “mistake.” See Smith v. City of Akron, 2012
WL 1139003, at *2 (6th Cir. Apr. 6, 2012) (unpublished)
(holding that Krupski does not affect rule that relation
back does not apply when the plaintiff seeks to substitute
named defendants for John Doe defendants). Thus, the
claims against Defendant Archuleta are time-barred and
must be dismissed.

IV. CONCLUSION
*3 Accordingly, it is ORDERED THAT Defendant
Archuleta's Motion for Judgment on the Pleadings (Doc.
# 71) is GRANTED. It is
FURTHER ORDERED that all claims against
Defendant Archuleta are DISMISSED AS TIME–
BARRED.

All Citations
Not Reported in F.Supp.2d, 2012 WL 1719767

Footnotes

1

All defendants except for Defendant Gabriel and Defendant Archuleta have been dismissed with prejudice by Plaintiff.
(Doc. # 35.) Defendants Gabriel and Archuleta have also been dismissed with prejudice as defendants in their official
capacities. (Id.)

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2

Martinez v. Gabriel, Not Reported in F.Supp.2d (2012)
2012 WL 1719767

2

The Tenth Circuit's interpretation of Rule 15(c) is consistent with the prevailing law in every other circuit to address this
issue. Smith v. City of Akron, 2012 WL 1139003, at *2 (6th Cir. Apr. 6, 2012) (unpublished) (listing cases).

End of Document

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