PERRY v. CHRISTENSEN et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 8/23/2017. (km)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AUG 2 3 2017
Civil Action No. 16-4822 (MAS) (TJB)
CAPTAIN CHRISTENSEN, et al.,
This matter has come before the Court on a civil rights Complaint filed by Plaintiff Tricia
Perry, as administratrix for the estate of Nathan Perry, pursuant to 42 U.S.C. § 1983. Plaintiffs
claims arose out of a tragic incident on June 15, 2014, when Nathan committed suicide while in
Defendants' custody at the Middlesex County Adult Corrections Center ("MCACC"), three days
after his arrest and placement there. 1 (Comp!. 6-7, ECF No. 1-1.) The Complaint alleges that after
his arrest, Nathan's family contacted various officials at the prison, the prison medical ·unit, and
the Middlesex County Sheriffs Department to inform them that Nathan was a suicide risk, but
was ignored. (Id.) Presently before the Court is a motion to dismiss by Defendant CHG Healthcare
Systems ("CHG") (ECF No. 22) and a motion to amend by Plaintiff (ECF No. 21).
The original Complaint was filed in state court on June 10, 2016. It asserted claims against
the prison, the warden, the sheriffs department, and various individual officers from the prison
The Complaint actually states that the suicide occurred on June 15, 2016, while all other dates
alleged in the Complaint occurred in 2014. The Court construes the June 15, 2016 date as a
typographical error, since the Complaint itself was filed on June 10, 2016. Indeed, in Plaintiffs
proposed Second Amended Complaint, see infra, the date has been corrected to June 15, 2014.
(Proposed Second Am. Compl., ECF No. 21-2 at 8.)
and the sheriffs department, as well as claims against john doe defendants. The case was then
removed to this Court, and Magistrate Judge Tonianne J. Bongiovanni held the initial pretrial
conference on October 17, 2016. Thereafter, with the consent of the original defendants, Judge
Bongiovanni granted Plaintiff leave to file an amended complaint to add additional parties. (Order,
Nov. 2, 2016, ECF No. 12.) Plaintiff filed his first Amended· Complaint on November 9, 2016,
specifically adding CHG as a defendant, who was the contractor providing medical services at
MCACC. (See First. Am. Comp. 1, ECF No. 13.)
Motion to Dismiss
In the instant motion to dismiss, CHG asserts that the claims against it are time-barred.
Under New Jersey law, an action for an injury caused by a wrongful act, neglect, or default must
be commenced within two years of accrual of the cause of action. N.J.S.A. § 2A:14-2; Estate of
Lagano v. Bergen Cty. Prosecutor's Office, 769 F.3d 850, 859 (3d Cir. 2014). Federal courts look
to state law to determine the limitations period for§ 1983 actions. Wallace v. Kato, 549 U.S. 384,
387-88 (2007); Lagano, 769 F.3d at 859. Civil rights or constitutional tort claims are best
characterized as personal injury actions and are governed by the applicable state's statute of
limitations for personal injury actions. Lagano, 769 F.3d at 859. Accordingly, New Jersey's twoyear limitations period on personal injury actions governs Plaintiff's claims. Id
As summarized above, Plaintiffs original Complaint was filed five days before the statute
oflimitations on all of Plaintiffs claims expired. Plaintiffs claims against CHG, asserted for the
first time in Plaintiffs November 9, 2016 First Amended Complaint, therefore, were technically
raised beyond the statute of limitations period. As such, Plaintiff's claims against CHG can only
be timely if they "relate back" to the date of the original pleading under the "relation back"
provision of the Federal Rule of Civil Procedure 15(c).
Rule 15(c) permits an amendment to relate back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows
relation back; or (B) the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out---0r
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)(l)(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 [satisfies
the provisions of 15(c)(l)(C)(i)&(ii)].
Fed. R. Civ. P. 15(c). When "[r]eplacing the name John Doe with a party's real name," as is the
case here, it "amounts to the changing of a party or the naming of a party under Rule 15(c)[.]"
Garvin v. City ofPhi/a., 354 F.3d 215, 220 (3d Cir. 2003). Under Rule 15(c)(l)(C), an amendment
may relate back only if "within the period provided by Rule 4(m) for serving the summons and
complaint, the party to be brought in by an 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." Fed. R. Civ P. 15(c)(l)(C); Krupski v. Costa Crociere S. p.A., 560 U.S. 538, 541 (2010).
In Krupski, the Supreme Court held that the only relevant inquiry, in deciding whether an
amendment to change a party can benefit from the relating-back provision, is whether "the party
to be added knew or should have known, not on the amending party's knowledge or its timeliness
in seeking to amend the pleading." Id
Because knowledge of actual notice is difficult to obtain by a plaintiff, the Third Circuit
has allowed district courts to impute notice under two possible methods:
The first is the "shared attorney" method, which is based on the
notion that when the originally named party and the parties sought
to be added are represented by the same attorney, "the attorney is
likely to have communicated to the latter party that he may very well
be joined in the action." The second is the "identity of interest"
method, and is related to the shared attorney method. "Identity of
interest generally means that the parties are so closely related in their
business operations or other activities that the institution of an action
against one serves to provide notice of the litigation to the other."
Garvin, 354 F.3d at 222-23 (quoting Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 196-97 (3d
Cir. 2001)); see also Schiavone v. Fortune, 477 U.S. 21, 29 (1986) ("Timely filing of a complaint,
and notice within the limitations period to the party named in the complaint, permit imputation of
notice to a subsequently named and sufficiently related party.").
Under the facts of this case, the Court imputes notice to CHG.
To begin, Plaintiff
specifically mentions the prison medical unit-in essence, CHG-in the original Complaint, and
explicitly asserts that defendants "failed to properly evaluate decedent for psychological
problems," a medical issue. (Compl. 8.) By suing the prison defendants for actions that were
ultimately carried out by a contractor the prison hired to provide medical services, at least one
court in this circuit has, in similar circumstances, imputed notice to the contractor. See Win & Son,
Inc. v. City ofPhila., 178 F. Supp. 3d 234, 247 (E.D. Pa. 2016) (relying on the "identity ofinterest"
doctrine to impute notice to a subcontractor who performed the services that led to the plaintiff's
claims against the prime contractor). The Win court reasoned that because the prime contractor
often contracted with the subcontractor to perform the services in question, had frequent
cointnunications with the subcontractor regarding its services, and shared equipment and storage
space with the subcontractor, the prime contractor was likely to have notified the subcontractor
about a lawsuit against the prime contractor for the services that were actually performed by the
Here, CHG obviously shared the same building as the prison, so frequent communication
was not only expected, but probably required, as CHG was likely under the supervision of the
warden, who is a party to this lawsuit. In their initial answer, the prison defendants raised a defense
that "[t]he incident which forms the basis of this litigation and which allegedly caused the injuries
and damages to plaintiff was proximately caused or contributed to by the fault of third parties, not
parties to this suit," (see Ans. to Compl. 5, ECF No. 8), suggesting that as early as the service of
the original Complaint, defendants intended to seek contribution or indemnification from
This was confirmed when, in their answer to the First Amended Complaint once CHG was named
as a defendant, the prison defendants in fact raised a cross claim for contribution against CHG.
(See Ans. to Am. Compl. 7, ECF No. 16.) Indeed, the prison defendants consented to the
amendment in the first place. It is implausible that the prison defendants kept CHG in the dark
about this lawsuit for months, and waited until the filing of the First Amended Complaint before
notifying, or relied on Plaintiff to notify, CHG of the lawsuit.
Most tellingly, nowhere in its motion, the supporting brief, or the attached exhibits does
CHG assert that it was unaware of the lawsuit until served by Plaintiff. CHG makes a half-hearted
attempt at arguing prejudice, 2 even though discovery has not even begun in this matter, but makes
no assertion whatsoever about, as the Supreme Court held, the only relevant inquiry concerning
Rule 15(c)(l)(C): notice. "Since [defendant] does not even argue that he was not aware of
[plainitff s] initial Complaint within [the Rule 4(m) period], ... this Court cannot find at this
juncture that the claims against [defendant] do not relate back under Rule 15(c)(l)(C) as a matter
of law." Dalal v. N Jersey Media Grp., Inc., 2014 WL 2691698, at *4 (D.N.J. June '13, 2014).
Accordingly, for purposes of the present motion, the Court finds that the claims against CHG relate
CHG argues that it may be prejudiced because as of November 30, 2016, or about two weeks
after it was served, it was no longer a contractor of the prison, so it may have difficulty accessing
Nathan Perry's medical records and personnel previously employed at the site. The Court fails to
see why any alleged difficulty cannot be addressed through the discovery process, and certainly,
no such difficulty existed when CHG was served or during the relevant Rule 4(m) periodPlaintiff cannot be faulted for difficulties that, for all intents and purposes, were not caused by
back to the original filing date of the initial Complaint, and CHG's motion to dismiss on statute of
limitations ground is denied.
Motion to Amend
Having found that Plaintiffs claims against CHG in the First Amended Complaint were
timely, the Court now addresses Plaintiffs motion to amend, which seeks to add a medical
malpractice claim against CHG. Like Plaintiffs first amendment against CHG, the Court must
analyze Plaintiffs second amendment under Rule l5(c) to see if Plaintiffs new claim relates back
to the original filing date of the Complaint in order to overcome the statute of limitations bar.
This Court must "freely give leave [to amend] when justice so requires." Fed. R. Civ. P.
15(a)(2). "This liberal amendment philosophy limits the district court's discretion to deny leave
The district court may deny leave to amend only if a plaintiffs delay in .seeking
amendment is undue, motivated by bad faith, or prejudicial to the opposing party." J.E. Mamiye
& Sons, Inc. v. Fidelity Bank, 813 F.2d 610, 613 (3d Cir. 1987) (quoting Adams v. Gould, Inc.,
739 F.2d 858, 864 (3d Cir. 1984)).
Unlike the previous amendment to add a party, the instant motion to amend seeks to add a
new claim against an existing party, which is governed by Rule 15(c)(l)(B). "[A]pplication of
Rule 15(c)(l)(B) normally entails a search for a common core of operative facts in the two
pleadings." Glover v. F.D.IC., 698 F.3d 139, 145 (3d Cir. 2012) (citation and quotation marks
omitted). "[O]nly where the opposing party is given fair notice of the general fact situation and
the legal theory upon which the amending party proceeds will relation back be allowed." Id
Here, the proposed new pleading relies on substantially the same set of events and facts as
the previous pleading, with only two additional factual allegations providing more details
regarding the treatment Nathan Perry allegedly received before his suicide. (Compare First. Am.
Comp. 3-4, with Proposed Second Am. Compl., ECF No. 21-2 at 7-9.) As such, the proposed new
claim clearly shares a common core of operative facts with Plaintiffs previous claims against
This Court and other courts have routinely allowed amendments adding state law
negligence claims to relate back under Rule 15(c) under similar circumstances. See Gibbs v. Univ.
Corr. Healthcare, No. 14-7138 (MAS), 2016 WL 6595916, at *5 (D.N:.J. Nov. 7, 2016); Renee v.
Wetzel, No. 14-0145, 2016 WL 707486, at *9 (W.D. Pa. Feb. 22, 2016) (allowing amendment of
medical negligence claim under Rule 15(c) to a § 1983 action alleging Eighth Amendment denial
of medical services); see also White v. City of Chicago, No. 14-3720, 2016 WL 4270152, at *6
(N.D. Ill. Aug. 15, 2016) (allowing amendment of negligent supervision claim under Rule 15(c)
to a§ 1983 action asserting excessive force); Mink v. Arizona, No. 09-2582, 2010 WL 2594355,
at *3 (D. Ariz. June 23, 2010) (holding that amendment adding negligence claim to§ 1983 action
not barred by statute oflimitations because of Rule 15(c)).
As this Court has opined, "[i]n the context of a claim that the deprivation of medical care
amounted to a constitutional violation, proof of such claim would almost certainly prove a case of
ordinary state law malpractice[.]" Baadhio v. Hofacker, No. 15-2752 (MAS), 2015 WL 6445802,
at *2 n.2 (D.N.J. Oct. 23, 2015) (quoting Taylor v. Plousis, 101 F. Supp. 2d 255, 263 n.4 (D.N.J.
2000)). It cannot be reasonably argued that CHG, a medical services provider, did not have fair
notice of possible medical malpractice claims against it.
Accordingly, the Court finds that
Plaintiffs proposed state law medical malpractice claim relates back to the original Complaint
under Rule 15(c) and is not time-barred. Furthermore, as stated above, there is little prejudice to
CHG as this case is in the very early stages of litigation. See S. Jersey Gas Co. v. Mueller Co.
Ltd., 429 F. App'x 128, 131 (3d Cir. 2011) (finding that, even at the summary judgment stage, a
request to amend is properly considered under Rule 15 "[s]ince amendment of a complaint is not
unusual at the summary judgment stage of the case" (quoting Adams, 739 F .2d at 869)).
Accordingly, the motion to amend is granted.
s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE
Date: August 23, 2017
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