Boyd v. City of Warren et al

Filing 76

OPINION and ORDER DENYING PLAINTIFF'S 61 MOTION for Leave to File Second Amended Complaint - Signed by Magistrate Judge R. Steven Whalen. (CCie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES FRANCIS BOYD,
Plaintiff,

Case No. 16-12741

v.

District Judge Laurie J. Michelson
Magistrate Judge R. Steven Whalen

CITY OF WARREN, A Municipal corporation;
WARREN POLICE DEPARTMENT; OFFICER
COLIN MCCABE, OFFICER JEFFREY
MASSERANG; OFFICER ROBERT
HORLOCKER; and UNKNOWN OFFICERS
OF THE WARREN POLICE DEPARTENT
Defendants.
________________________________/
OPINION AND ORDER
Plaintiff Charles Boyd has brought claims arising out of his arrest by officers of
the Warren, Michigan Police Department during a May 28, 2014 traffic stop. Before the
Court is his Motion for Leave to File Second Amended Complaint [ECF No. 61], in
which he seeks to add three previously unidentified Warren Police Officers. For the
reasons discussed below, the motion will be DENIED.
I.

FACTUAL AND CHRONOLOGICAL BACKGROUND

The events giving rise to this lawsuit occurred on May 28, 2014. Plaintiff filed his
complaint on July 25, 2016 [ECF No. 1], and filed an amended complaint on October 11,
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2016 [ECF No. 11]. On April 18, 2018, the Court, adopting in part a Magistrate Judge
Report and Recommendation (“R&R”), dismissed a number of claims, leaving claims
against Defendants McCabe and Masserang relating to their alleged use of excessive
force.
The amended complaint also listed as Defendants “unknown officers of the
Warren Police Department.”
On June 26, 2018, the Court entered a scheduling order establishing a discovery
cut-off date of March 31, 2019 [ECF No. 38].1
On July 23, 2018, Defendants served their initial disclosures on Plaintiff’s counsel.
The disclosures specifically identified Michael Moore, William Mierzwinski, and Lucas
Doe as persons likely to have discoverable information:
¶ 7 Lucas Doe
(a) Mr. Doe is believed to have information regarding his whereabouts on
May 28, 2014 and the accuracy of the case report.
¶ 8 Michael Moore
(a)

Mr. Moore is believed to have information regarding his
whereabouts on May 28, 2014 and Plaintiff’s interaction with
Warren Police Department Police Officers in the Warren Jail

1

All Defendants filed a motion to dismiss on October 25, 2016 [ECF No. 15]. On
May 16, 2017, the case was reassigned from Judge Cox to Judge Michelson. The case
was referred to the undersigned Magistrate Judge for pretrial proceedings on May 23,
2017 and I filed my R&R on February 22, 2018 [ECF No. 23]. The Court issued its
opinion adopting in part and rejecting in part the R&R April 18, 2018 [ECF No. 28], rereferring for all pretrial proceedings on the same date [ECF No. 29].
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on May 28, 2014.
¶9

William Mierzwinski

(a)

Mr. Mierzwinski is believed to have information regarding his
whereabouts on May 28, 2014 and Plaintiff’s interaction with
Warren Police Department Police Officers in the Warren Jail
on May 28, 2014.

Defendants’ Exhibit 1 [ECF No. 70-2, PageID.1877]. In addition, on July 25, 2018,
Defendants’ counsel sent Plaintiff’s counsel an email agreeing to accept service for any
subpoena directed to the City of Warren, including the Police Department. Defendants’
Exhibit 2 [ECF No. 70-3, PageID.1883].
On March 8, 2019, Plaintiff filed a motion for leave to file an expert witness list
and to adjourn the discovery cut-off date for 90 days [ECF No. 43]. I denied leave to file
an expert witness list, and extended discovery for an additional 24 days to complete
depositions [ECF No. 45]. On August 16, 2019, the Court overruled Plaintiff’s objections
to my order [ECF No. 59].
I filed an R&R on Defendants McCabe and Masserang’s motion for summary
judgment on January 21, 2020 [ECF No. 60].2 Plaintiff filed the present motion for leave
to file a second amended complaint nine days later, on January 30, 2020, for the first time
naming as Defendants Michael Moore, William Mierzwinski, and Lucas Doe [ECF No.

2

The Court adopted the R&R in part and rejected it in part on March 30, 2020
[ECF No. 74], leaving specific Fourth Amendment claims and state law assault and
battery claims against Defendant McCabe, and Fourth Amendment failure to intervene
claim against Defendant Masserang.
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61].
II.
A.

DISCUSSION

The Statute of Limitations

The statute of limitations for claims under 42 U.S.C. § 1983 is established with
reference to the statute of limitations for personal injury claims in the state where the case
arises. Wilson v. Garcia, 417 U.S. 261, 272 (1985). In Michigan, the statute of limitations
for personal injury claims is three years. See MCL § 600.5805(10). “Under federal law
the statute begins to run when plaintiffs knew or should have known of the injury which
forms the basis of their claims.” Ruff v. Runyon, 258 F.3d 498, 500 (6th Cir. 2001). In
the present case, therefore, the Plaintiff’s Fourth Amendment/excessive force claims
accrued on May 28, 2014, and the statute of limitations ran three years later, on May 28,
2017.
B.

The Relation Back Doctrine

Plaintiff filed his initial complaint on July 25, 2016, within the limitations period.
However, that complaint, as well as his subsequent first amended complaint, did not
identify putative Defendants Moore, Mierzwinski, and Lucas Doe, but referred only to
“unknown officers of the Warren Police Department.”
Fed. R. Civ. P. 15( c ) directs when an amendment that is made after the statute of
limitation expires relates back to the filing of the complaint, and would thus not be timebarred:

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(c) Relation Back of Amendments.
(1) When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation
back;
(B) 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; or
(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 in
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.
The three-year statute of limitations for § 1983 claims does not have a relation
back provision, so § ( c )(1)(A) does not apply. Section ( c )(1)(B) applies when the
amendment seeks to add a new claim, but does not authorize relation back when the
amendment seeks to add a new party. Asher v. Unarco Material Handling, Inc., 596 F.3d
313, 318 (6th Cir. 2010)( “Rule 15(c)(1)(B) allows relation back of an amendment
asserting a ‘claim or defense,’ but it does not authorize the relation back of an amendment
adding a new party”)(emphasis in original)(quoting In re Kent Holland Die Casting &
Plating, Inc., 928 F.2d 1448, 1449 (6th Cir. 1991)).
Therefore, where, as here, the proposed amendment involves the same conduct
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alleged in the original complaint, but “changes the party or the naming of the party
against whom the claim is asserted,” Rule 15( c )(1)( C) is the applicable standard. And
subparagraph (ii) of that Rule requires that there has been “a mistake concerning the
proper party's identity.” However, the Sixth Circuit has repeatedly held that where the
original complaint refers to unnamed defendants, or “John Doe” defendants, that does not
constitute a mistake of identity, and a later amendment to identify those individuals serves
to add new defendants, not correct a mistake. In Cox v. Treadway, 75 F.3d 230 (6th Cir.
1996), the plaintiff referred to four “unnamed police officers” in the original complaint,
and sought to identify those officers after the statute of limitations had run. The Court
held:
“The naming of “unknown police officers” in the original complaint does
not save the pleading. Substituting a named defendant for a “John Doe”
defendant is considered a change in parties, not a mere substitution of
parties. Therefore, the requirements of Fed.R.Civ.P. 15(c) must be met in
order for the amendment adding the named defendant to relate back to the
filing of the original complaint.” Id. at 240.
The Court went on to state, “Sixth Circuit precedent clearly holds that new parties
may not be added after the statute of limitations has run, and that such amendments do not
satisfy the ‘mistaken identity’ requirement of [Rule 15(c) ].” Id. (citing In re Kent
Holland Die Casting & Plating, Inc., 928 F.2d 1448, 1449–50 (6th Cir. 1991) and
Marlowe v. Fisher Body, 489 F.2d 1057, 1064 (6th Cir. 1973)).
The Sixth Circuit has consistently followed Cox in a number of unpublished cases.
See Brown v. Cuyahoga Cty., Ohio, 517 Fed.Appx. 431, 433–34 (6th Cir. 2013) (noting
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that the Sixth Circuit “previously held [in Cox ] that an absence of knowledge is not a
mistake, as required by Rule 15(c)(1)(C)(ii)”); Moore v. Tennessee, 267 Fed.Appx. 450,
455 (6th Cir. 2008) (“[A] plaintiff's lack of knowledge pertaining to an intended
defendant's identity does not constitute a ‘mistake concerning the party's identity’ within
the meaning of Rule 15(c). Nor are we alone in so holding—our court's precedent
comports with no fewer than seven of our sister circuits.”) (citation omitted) (collecting
cases); Wiggins v. Kimberly–Clark Corp., 641 Fed.Appx. 545, 549 (6th Cir. 2016)(lack of
knowledge of a defendant’s identity does not constitute a “mistake” within the meaning
of the Rule 15(c)(1)(C)(ii)); Force v. City of Memphis, 101 F.3d 702, at *3 (6th Cir.
1996) (table) (“We have recently held that [the mistaken identity prong] is not satisfied
where the caption of an original complaint refers to ‘unknown police officers’ and, after
the expiration of the applicable limitations period, an amended complaint specifically
names those officers.”) (citing Cox, 75 F.3d at 240). And numerous cases within this
District have followed suit, denying relation back of amendments that for the first time
name previously unidentified defendants. See Reiner v. Canale, 301 F. Supp. 3d 727, 737
(E.D. Mich. 2018)(citing cases).3

3

Reiner recognized potentially conflicting authority in Berndt v. State of
Tennessee, 796 F.2d 879 (6th Cir. 1986). Berndt did not specifically analyze
Rule 15( c )(1)( C )(ii), focusing instead on the notice requirement, and, finding that
constructive rather than actual notice to the newly named defendants would be sufficient
to satisfy the notice prong of Rule 15( c ), left it to the district court to pursue “a patently
factual inquiry.” Id. at 884. Thus, Berndt left open the possibility of adding previously
unidentified defendants even after the statute of limitations expired. Nevertheless, Reiner
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In Plaintiff’s case, the three-year statute of limitations ran on May 28, 2017, yet he
first identified his three new Defendants in his present motion, filed on January 30, 2020,
almost two years and eight months later. Because his proposed amendment does not
permit relation back under Rule 15(c)(1)(C)(ii), the motion must be denied.
In their response to this motion, the Defendants make much of the fact that
Plaintiff was aware of the existence of Moore, Mierzwinski, and Lucas Doe as early as
July 23, 2018, when they served their initial disclosures, yet did not seek to amend their
complaint until January 30, 2020. While it is true that Plaintiff has been less than diligent
in pursuing this motion, it doesn’t matter. First, the three-year statute of limitations had
already run when Defendants’ initial disclosures were file. More importantly, under Cox
and its progeny, Rule 15( c )(1)( C ) simply does not permit a relation back for previously
unnamed defendants after the statute has run, regardless of when the defendants’
identities were discovered. See Renier, 301 F. Supp. 3d at 739 (“[T]he binding precedent

pointed out that the weight of subsequent authority in both the Sixth Circuit and the
district courts clearly favors Cox:
“In the final analysis, the weight of authority clearly favors the proposition,
embodied in Cox, Moore, and Clark, that asserting claims against Doe
defendants in an initial complaint will not later be found to be a ‘mistake
concerning the proper party's identity’ under Rule 15(c)(1)(C)(ii).” 301 F.
Supp. 3d at 737–38.
See also Clark v. Oakland Cty., 2010 WL 2891712, *9 (E.D. Mich. 2010)(“Given
Moore's reaffirmation of the continuing viability of Cox's central holding, this Court
defers to the sound judgment of the Sixth Circuit in deciding Moore.”).
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and ample persuasive authority discussed supra establishes that regardless of when
Plaintiff learned of Defendant Canale's existence, his claims are barred because
Defendant Canale was added as a defendant after the statute of limitations had run, and
Plaintiff's earlier use of a Doe defendant does not constitute ‘a mistake concerning the
proper party's identity’ as required for the amendment to relate back under Rule 15(c)”).
III.

CONCLUSION

Plaintiff’s Motion for Leave to File Second Amended Complaint [ECF No. 61] is
DENIED.
IT IS SO ORDERED.
s/R. Steven Whalen
R. STEVEN WHALEN
United States Magistrate Judge
Dated: April 14, 2020

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was sent to parties of record on
April 14, 2020 electronically and/or by U.S. mail.
s/Carolyn M. Ciesla
Case Manager

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