Silva (ID 55256) v. Ekis et al
Filing
104
MEMORANDUM AND ORDER granting 101 Motion to Dismiss for Failure to State a Claim. Signed by District Judge Carlos Murguia on 3/23/18. (kao)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CARLOS J. SILVA,
Plaintiff,
v.
Case No. 15-3007
RON EKIS, Sergeant, Topeka Police Department,
in his individual and official capacity, et al.,
Defendants.
MEMORANDUM & ORDER
This matter comes before the court upon defendants Michael Burns, Martin Cordero, Justin
Joyce, Jason Junghans, and Adam Kary’s Motion to Dismiss (Doc. 101). Plaintiff Carlos J. Silva’s
claims relate to an incident that occurred on January 20, 2013, when plaintiff was walking home on
SW Wayne Street in Topeka, Kansas. Plaintiff claims that defendants used, or failed to intervene to
stop the use of, excessive force in violation of plaintiff’s Fourth Amendment rights when they seized
him, handcuffed him, tased him, beat him up, and cut off his hair. Plaintiff claims that defendants’
actions resulted in plaintiff’s five-day stay in the ICU and caused him emotional distress and lasting
physical injury.
Upon release, plaintiff was not charged with any crime. Plaintiff filed a Biased Policing
Complaint with the Kansas Attorney General’s Office. Then in June 2014, plaintiff mailed a claim to
the Joint Committee on Special Claims Against the State. On July 31, 2014, the Shawnee County
District Attorney’s Office filed a criminal complaint against plaintiff for battery against a law
enforcement officer and interference with law enforcement based on the January 20, 2013 incident.
Plaintiff disputes the factual assertions in the affidavit attached to his criminal complaint, which was
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signed by defendant Ekis. Plaintiff claims that defendant Ekis was his initial attacker on January 20,
2013.
Plaintiff’s Second Amended Complaint (Doc. 92) contains three counts: Count I claims that
defendants used excessive force under 42 U.S.C. § 1983, violating plaintiff’s Fourth Amendment right
to be free from unreasonable searches and seizures; Count II claims that defendants failed to intervene
when plaintiff was subjected to excessive force, also in violation of § 1983; and Count III claims
intentional infliction of emotional distress. All claims are brought against all defendants.
Moving defendants were added to this suit with plaintiff’s Second Amended Complaint (Doc.
92), filed November 17, 2017. Previously, they were represented as Jane and/or John Doe defendants
who are either City of Topeka Police Officers or Shawnee County Sheriff’s Deputies, and who
allegedly took part in the January 20, 2013 incident. Once plaintiff learned the identities of the officers
who were present on January 20, 2013, he sought and was granted leave to amend his pleading to name
them individually.
Defendants argue that plaintiff’s claims against moving defendants do not relate back to
plaintiff’s original complaint under Fed. R. Civ. P. 15(c)(1)(C) because the statute of limitations had
expired by the time they were served.
I.
Legal Standards
a. Motions to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)
The court will grant a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) only
when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the
claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic
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recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig.,
534 F. Supp. 2d 1214, 1216 (D. Kan. 2008).
The allegations must contain facts sufficient to state a claim that is plausible, rather than merely
conceivable. Id. “All well-pleaded facts, as distinguished from conclusory allegations, must be taken
as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S.
662, 681 (2009). The court construes any reasonable inferences from these facts in plaintiff’s favor.
Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006).
Asserting that a claim is barred by the statute of limitations is usually an affirmative defense,
but may be resolved on a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Wanjiku v. Johnson
Cnty., 173 F. Supp. 3d 1217, 1232 (D. Kan. 2016) (citing Aldrich v. McCulloch Props., Inc., 627 F.2d
1036, 1041 n.4 (10th Cir. 1980)). Because “when a complaint shows on its face that the applicable
statute of limitations has run, an action is subject to dismissal for failure to state a claim upon which
relief can be granted.” Turner & Boisseau, Inc. v. Nationwide Mut. Ins. Co., 944 F. Supp. 842, 844 (D.
Kan. 1996).
b. Relation Back Under Fed. R. Civ. P. 15(c)
Federal Rule of Civil Procedure 15(c) explains when an amendment to the pleadings can relate
back to the date of the original pleading. The purpose of relation back amendments is to balance the
defendants’ interest in statute of limitations protections with the federal rules’ general preference to
resolve disputes on their merits. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 550 (2010).
A prospective defendant who legitimately believed that the limitations period had
passed without any attempt to sue him has a strong interest in repose. But repose would
be a windfall for a prospective defendant who understood, or who should have
understood, that he escaped suit during the limitations period only because the plaintiff
misunderstood a crucial fact about his identity.
Id.
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Rule 15(c)(1)(A) allows relation back when the applicable statute of limitations allows relation
back. Rule 15(c)(1)(B) allows it when “the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.” And
Fed. R. Civ. P. 15(c)(1)(C) provides that:
An amendment to a pleading relates back to the date of the original pleading when: . . .
(C) 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
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 by defending on the
merits; and (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.
Id. Fed. R. Civ. P. 4(m) is satisfied if defendant is served within 90 days of the original complaint.
The time to serve the complaint was shortened from 120 to 90 days with the 2015 Amendments to the
Federal Rules. Because plaintiff’s original complaint was filed before the 2015 Amendments took
effect, the 120-day deadline applies. In any case, defendants do not suggest that they were not timely
served with the Second Amended Complaint.
Plaintiff must therefore show that moving defendants “received such notice of the action” that
they won’t be prejudiced and that they “knew or should have known that the action would have been
brought against [them], but for a mistake concerning” their proper identities. The Supreme Court has
emphasized that Rule 15(c)(1)(C) amendments depend on “what the prospective defendant knew or
should have known during the Rule 4(m) period, not what the plaintiff knew or should have known at
the time of filing [his] original complaint.” Krupski, 560 U.S. at 548.
II.
Discussion
The parties agree that if plaintiff’s claims against moving defendants do not relate back to the
date this case was filed, they are barred by a two-year statute of limitations. The original complaint
was filed on January 12, 2015 and the statute of limitations ran on January 20, 2015. The Second
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Amended Complaint that named proposed defendants was not filed until November 17, 2017, nearly
four years after plaintiff’s injuries.
The parties limit their argument to whether the Supreme Court’s Krupski decision dealing with
Rule 15(c)(1)(C) weakens earlier decided Tenth Circuit cases that found Rule 15(c)(1)(C) an improper
tool to change a Doe defendant to a named defendant. Defendants rely on two Tenth Circuit opinions:
Garrett v. Fleming, 362 F.3d 692 (10th Cir. 2004) and Bell v. City of Topeka, Kan., 279 F. App’x 689
(10th Cir. 2008). The Tenth Circuit decisions found that “[a] plaintiff’s designation of an unknown
defendant as ‘John Doe’ in the original complaint is not a formal defect of the type Rule 15(c)[(1)(C)]
was meant to address.” 362 F.3d at 697, 279 F. App’x at 692. Plaintiff relies on the Supreme Court’s
decision in Krupski, suggesting that it may open the door for relation back amendments in cases, like
this one, where the plaintiff names a Doe defendant until they can determine, through discovery, the
intended defendant’s identity.
Defendants concede that the claims against them arise out of the same occurrence that is
described in plaintiff’s original complaint.
They also concede for purposes of this motion that
defendants had notice and will not be prejudiced in providing a defense to the claims against them.
Defendants argue only that plaintiff cannot show that originally naming John Doe defendants was a
mistake as contemplated by Rule 15(c)(1)(C).
The court agrees. While the Supreme Court’s decision in Krupski clarified the meaning of
“mistake” concerning the identity of the proper party to focus on whether the proposed defendants
knew or should have known that they should have been named, the Court did not dispose of the
requirement that a plaintiff’s initial failure to name a defendant was due to mistake. At least three
courts in this district have considered relation back amendments since Krupski was decided, and all
have still considered whether plaintiff’s initial failure to name the correct defendants was due to
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mistake. See Burns v. Transdigm Grp., Inc., No. 13-1371-RDR, 2015 WL 2062925, at *1, *6 (D. Kan.
May 4, 2015), Price v. City of Wichita, No. 12-1432-CM-DJW, 2014 WL 289453, at *1, *8 (D. Kan.
Jan. 27, 2014), McGregor v. Shane’s Bail Bonds, No. 10-2099-JWL, 2010 WL 3155635, at *1 *7 (D.
Kan. Aug. 9, 2010), aff’d, 427 F. App’x 629, 632 (10th Cir. 2011) (noting that the district court found
that plaintiff “was not mistaken concerning the proper parties’ identities.”). The Tenth Circuit’s
analysis on relation back explicitly rejects the idea that naming a Doe defendant is a mistake. Instead,
they suggest that “a plaintiff’s lack of knowledge of the intended defendant’s identity is not a mistake
concerning the identity of the proper party within the meaning of [Rule 15(c)(1)(C)].” Garrett, 362
F.3d at 696. The Krupski decision does not eliminate Rule 15(c)(1)(C)’s requirement that a mistake be
the reason for failing to properly name defendants prior to the expiration of the statute of limitations.
At least one court in this district has addressed this issue since the Krupski decision and relied
on equitable tolling to allow amendments to the pleadings naming defendants who were previously
only named as John or Jane Does. See Dartez v. Peters, No. 15-3255-EFM, 2018 WL 1138282, at *1,
*9 (D. Kan. Mar. 2, 2018) (noting that it need not determine whether Krupski impacts prior Tenth
Circuit precedent, because it relied on either the unique circumstances doctrine or equitable tolling to
allow plaintiff leave to amend).
Plaintiff does not argue that equitable tolling should apply here or provide the court any other
basis to allow the claims against moving defendants to go forward.
The parties agreed that if
15(c)(1)(C) did not provide a basis for leave to amend, adding moving defendants, the claims against
them would be barred by the two-year statute of limitations. Plaintiff fails to state a claim upon which
relief may be granted as to moving defendants. Defendants’ motion is therefore granted. Moving
defendants are dismissed from this action.
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IT IS THEREFORE ORDERED that defendants Joyce, Kary, Junghans, Burns, and
Cordero’s Motion to Dismiss (Doc. 101) is granted.
Dated March 23, 2018, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge
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