ROUDABUSH v. BITENER et al

Filing 14

MEMORANDUM AND ORDER, granted and denied 13 Motion to Correct Spelling of defendant's name and to Substitute defendants correct name for "John Doe". Signed by Judge Renee Marie Bumb on 8/24/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
NOT FOR PUBLICATION

James L. Roudabush, Jr.
Plaintiff,
v.
Lt. Bitener et al.,
Defendants.

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CIV. ACTION NO. 15-3185(RMB)
MEMORADUM AND ORDER

RENÉE MARIE BUMB, U.S. District Judge
On July 31, 2015, this Court granted Plaintiff’s IFP application
and directed service of summons and Plaintiff’s Bivens complaint on
the defendants. (Opinion and Order, ECF Nos. 9, 10.) This matter comes
before the Court upon Plaintiff’s filing of two motions: (1) Motion
to Correct Spelling of Defendant’s Name; and (2) Motion to Substitute
Defendant’s Correct Name for “John Doe” (ECF No. 13.)
Petitioner wishes to correct the spelling of “Lt. Bittinger”
to “Lt. Bitener.” (ECF No. 13 at 1.) The Clerk of Court will be
directed to make the appropriate corrections to the docket,
correcting the spelling of Lt. Bitener’s name.

1

Petitioner also wishes to substitute “Lt. E. Hall” for the “John
Doe” defendant. (Id. at 2.) “Replacing the name John Doe with a
party's real name amounts to the changing of a party or the naming
of a party under Rule 15(c). . . ”1 Garvin v. City of Philadelphia,
354 F.3d 215, 220 (3d Cir. 2003) (citing Varlack v. SWC Caribbean
Inc., 550 F.2d 171, 174 (3d Cir. 1977)). Therefore, Plaintiff must
amend the complaint.

1

Federal Rule of Civil Procedure 15(c), Relation Back of Amendments,
provides in relevant part:
(1) When an Amendment Relates Back. 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
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.

2

Because the complaint has not yet been served on the defendants,
Plaintiff may amend the complaint to substitute Lt. E. Hall for John
Doe, as a matter of course (without leave of Court). See Fed. R. Civ.
P. 15(a)(1)(A). The Court will deny Plaintiff’s Motion to Substitute
Defendant’s Correct Name for John Doe, but Plaintiff is permitted
to file an amended complaint naming Lt. E. Hall in the place of “John
Doe.” Upon Plaintiff’s filing of the amended complaint,2 the Court
will direct the Clerk to issue summons for service of the Amended
Complaint on the defendants.
IT IS on this 24th day of August 2015,
ORDERED

that

Plaintiff’s

Motion

to

Correct

Spelling

of

Defendant’s Name (ECF No. 13 at 1) is GRANTED; and it is further
ORDERED that the Clerk of Court shall correct the docket entries
to reflect the corrected spelling from “Lt. Bittinger” to the correct
spelling of “Lt. Bitener”; and it is further
ORDERED that Plaintiff’s Motion to Substitute Defendant’s
Correct Name for “John Doe” is DENIED; however, Plaintiff is

2

If Plaintiff makes changes to the complaint beyond substituting the
real party in interest for the “John Doe” defendant, any new claims
will be subject to screening pursuant to 28 U.S.C. § 1915(e)(2)(B).
See Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n.11 (3d Cir.
2002) (the dismissal provision of 28 U.S.C. § 1915(e)(2)(B) is
“applicable throughout the entire litigation process”) (quoting
McGore v. Wrigglesworth, 114 F.3d 601, 608 (6th Cir. 1997)).

3

permitted to file an Amended Complaint, which shall be identified
as “Amended Complaint” in the caption, and may substitute “Lt. E.
Hall” for John Doe as a party; and it is further
ORDERED that the Clerk of Court shall send a copy of this
Memorandum and Order to Plaintiff by regular U.S. mail; together with
a “Prisoner Civil Rights Complaint (05/09)” for Plaintiff’s use in
filing his Amended Complaint.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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