Counce v. Wolting et al

Filing 133

MEMORANDUM AND ORDER ENTERED: Plaintiff's motion for leave to amend 124 is denied. All Doe defendants are dismissed from this action. Signed by Chief Judge J. Thomas Marten on 03/13/17. Mailed to pro se party Kenneth Counce by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

KENNETH COUNCE,
Plaintiff,
v.
Case No. 13-3199-JTM
RYAN WOLTING, ET AL.,
Defendants.
MEMORANDUM AND ORDER
Before the court is plaintiff’s Motion for Leave to File an Amended Complaint to replace
John Doe 3 with Lieutenant Jamie Montoy of the Ellsworth County Sheriff’s Department (Dkt.
124). The Ellsworth County defendants have filed a response, objecting to the addition of Lt.
Montoy because the motion is untimely, procedurally improper, and futile (Dkt. 128). The time
for filing a reply has passed without one being filed. The court therefore considers this motion
fully briefed and ready for ruling. For the reasons stated below, the court denies plaintiff leave to
amend.
On September 21, 2016, this court ordered defendant Sheriff Tracy Ploutz to file a report
on John Doe 3 and 4 by October 21, 2016 (the “Doe Report”), which Ploutz timely filed. Dkts.
109, 118. In the same order, the court cautioned plaintiff that he ultimately bears the burden of
identifying the “John Doe” defendants and serving process on them. Dkt. 109 at 3. Further,
because of his incarceration status, the court granted plaintiff an additional 60 days to complete
these tasks with the following warnings:
Pursuant to Rules 4(m) and 15(a)(2), the court grants plaintiff until November 21,
2016, to file a motion to amend the complaint for the sole purpose of identifying
the unknown defendants and complete service upon them. This is not an
opportunity for plaintiff to raise or assert new claims. If plaintiff cannot complete
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these tasks, he must show good cause for the failure before the stated deadline
expires. The failure to complete service as required herein may result in dismissal
of the claims against John Doe 3 and 4 without prejudice. Any request for an
extension must also be filed before the deadline expires, must include details
regarding plaintiff’s efforts to identify and serve process on Doe 3 and 4, and
must set forth good cause for the failure. The court warns plaintiff that prisoner
status and indigency will not constitute good cause.
Id. at 2-3.
Plaintiff’s motion to amend, filed on February 6, 2017, is untimely. Even if plaintiff did
not receive a copy of the Doe Report until after Sheriff Ploutz re-sent it to him on or about
December 28, 2016, he offers no explanation why he did not request an extension before the
deadline expired or why it took him almost two months later to file the motion. The court finds
plaintiff has failed to show good cause for his noncompliance with the court’s order and the rules
of civil procedure.
The proposed amendment is also futile. Lind v. Aetna Health, Inc., 466 F.3d 1195, 1199
(10th Cir. 2006) (“A proposed amendment is futile if the complaint, as amended, would be
subject to dismissal.”). The applicable statute of limitations requires any claims related to the
October 23, 2013 arrest be filed by October 23, 2015. The two-year statute of limitations bars the
proposed claim against Lt. Montoy unless the claim relates back to the date of the timely filed
original complaint. Rule 15(c)(1)(C) governs relation back of amendments that changes the party
or the naming of the party against whom a claim is asserted. That rule provides such an
amendment relates back when: 1) the amendment asserts a claim or defense that arose out of the
conduct set out, or attempted to be set out, in the original pleading, and 2) the party to be brought
in by amendment was served with process within the period provided by Rule 4(m), received
such notice of the action that he will not be prejudiced in defending on the merits, and knew or
should have known that the action would have been brought against him but for a mistake
concerning the proper party’s identity. Plaintiff failed to serve process on Lt. Montoy within the
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Rule 4(m) deadline even though the court had extended it to November 21, 2016. Because
relation back does not apply, the statute of limitation bars any claim against Lt. Montoy, making
the proposed claim subject to dismissal. Garrett v. Fleming, 362 F.3d 692, 697 (10th Cir. 2004)
(the replacement of a “John Doe” defendant with a named party fails to relate back under Rule
15(c)(1)(C) because such an amendment constitutes a substitution of a party rather than the
correction of a misnomer); Watson v. Unipress, Inc., 733 F.2d 1386, 1389 (10th Cir. 1984)
(same). Accordingly, the court denies plaintiff leave to amend his complaint. Additionally, the
court dismisses all Doe defendants that have not been identified and served with process by the
4(m) deadline.
IT IS THEREFORE ORDERED this 13th day of March, 2017, that plaintiff’s motion
for leave to amend (Dkt. 124) is DENIED.
IT IS FURTHER ORDERED that all Doe defendants are dismissed from this action.

s/ J. Thomas Marten
Chief United States District Judge

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