Peet v. Beard et al

Filing 46

MEMORANDUM ORDER - IT IS HEREBY ORDERED THAT Plaintiffs motion for leave to amend the complaint pursuant to Rule 15(c) of the Federal Rules of Civil Procedure (Doc. 43 ) is DENIED. Signed by Magistrate Judge Martin C. Carlson on November 1, 2011. (kjn )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE J. PEET,
Plaintiff,
v.
JEFFREY A. BEARD, Ph.D,
Secretary of the Pennsylvania
Department of Corrections, et al.,
Defendants.

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Civil Action No. 3:10-CV-482
(Judge Caputo)
(Magistrate Judge Carlson)

MEMORANDUM ORDER
Now pending before the Court is Plaintiff’s motion for leave to file an amended
complaint in this action, in order to name Marcy Boyer, a nurse employed by the
Pennsylvania Department of Corrections, as an additional defendant. Plaintiff filed
this motion for leave approximately one and one-half years after commencing this
litigation, which was initially brought against 44 named defendants; despite
Defendants having provided Plaintiff with notice about Ms. Boyer’s identity in March
2010, shortly after this action was commenced. Although the statute of limitations has
now run on Plaintiff’s proposed claims against Ms. Boyer, Plaintiff contends that the
proposed claims against Ms. Boyer relate back to the original claims in this case, and
he should, therefore, be given leave to amend pursuant to Rule 15(c) of the Federal
Rules of Civil Procedure.

In support of his argument, Plaintiff alleges that Ms. Boyer had “imputed
notice” of this action, because other employees of the Department of Corrections had
been given notice of the original complaint. Additionally, Plaintiff asserts that
because Defendants’ attorney of record would represent Ms. Boyer if she is named as
a defendant, Ms. Boyer should be deemed to have received notice of this lawsuit, and
of the likelihood that she would be named as a defendant, through counsel. For these
reasons, Plaintiff contends that Ms. Boyer would not be prejudiced if she is required
to defend herself from Plaintiff’s allegations, even at this late date, and urges the
Court to grant the motion. In addition, Plaintiff argues that Ms. Boyer should have
known that she would have been named as a defendant but for Plaintiff’s mistake
about her identity, and that this provides an additional basis to permit a relation-back
amendment of the complaint.
Defendants have opposed Plaintiff’s motion, arguing that it is untimely, and that
it fails to satisfy the requirements set forth in Rule 15(c) governing relation- back of
amendments. Defendants emphasize that Plaintiff has produced no evidence to
suggest that Ms. Boyer had actual and timely notice of this litigation, and no evidence
that Defendants’ counsel of record ever communicated with Ms. Boyer about this
action before August 2011. Defendants also argue that Plaintiff cannot show that
there is an identity of interests between Ms. Boyer and the named defendants such that
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she would be deemed to have received imputed notice of the lawsuit. Similarly,
Defendants assert that there is no evidence to show that Ms. Boyer knew or should
have known, absent a mistake about the identity of the proper party, that this action
would have been brought against her. Accordingly, Defendants argue that Plaintiff
has failed entirely to show that a relation-back amendment should be permitted in this
case.
Upon consideration of the parties’ respective positions, we find that Plaintiff’s
motion must be denied.
II.

FACTUAL BACKGROUND1
On March 16, 2008, Lawrence J. Peet, an inmate incarcerated at the State

Correctional Institution at Camp Hill (SCI-Camp Hill), suffered a grand mal seizure
while in his cell, and became unconscious. After he lost consciousness, Peet fell
against a hot radiator in the cell, and his face remained in direct contact with the
radiator for approximately 30 minutes before prison officials discovered his injuries
and came to his aid. As a result of Peet’s face remaining in contact with the hot
radiator for this extended period of time, Peet sustained third-degree burns to his face,

1

For purposes of this opinion, we have taken the general background
information from that set forth in Plaintiff’s complaint. (Doc. 1)
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hands and forearms; he is now permanently blind in his right eye; and his face is
grossly disfigured.
Only three hours before Peet suffered the grand mal seizure in his cell, he had
been taken to the medical ward at SCI-Camp Hill because he was suffering from
seizure-like symptoms. Medical officials with Prison Health Services (“PHS”), which
was contracted with the Commonwealth to provide medical services within SCI-Camp
Hill, released Peet from the medical ward, and he was returned to his cell, where he
was allegedly left unsupervised, and where he thereafter sustained the severe and
permanent injuries summarized above.
Peet subsequently brought suit against prison and medical officials, including
PHS and members of its staff working at SCI-Camp Hill, on December 3, 2009.
Thereafter, Plaintiff voluntarily withdrew his complaint without prejudice, and re-filed
under the instant caption on March 3, 2010. (Doc. 1) In this civil action that was
subsequently commenced, Peet sued approximately 50 defendants, primarily guards
and officials employed by the Department of Corrections (“DOC”) at SCI-Camp Hill
and SCI-Graterford. In addition, some of the defendants include medical providers
and staff from PHS, who do not work directly for the DOC but who are contracted to
provide medical care for inmates at the prisons. As grounds for relief, Plaintiff has
alleged violations of his constitutional rights and medical malpractice. Plaintiff also
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included three “John Does” and three “Jane Does” as defendants in this case. To date,
no counsel has entered an appearance on behalf of the “Doe” defendants.
III.

DISCUSSION
Plaintiff has alleged that on March 16, 2008, he sustained the injuries that form

the basis for this complaint. There is no dispute that the statute of limitations
applicable to all of Plaintiff’s claims is two years. Plaintiff commenced this lawsuit
on March 3, 2010, less than two weeks before the two-year limitations period would
have expired. In the complaint, Plaintiff named 44 defendants. Marcy Boyer, a nurse
employed by the DOC who Plaintiff now alleges was involved in providing him
medical care at SCI-Camp Hill, was not among those named as defendants in the
original complaint.
Plaintiff filed the motion now pending before the Court on September 16, 2011,
seeking leave to add Ms. Boyer as a defendant. Although Rule 15(a) of the Federal
Rules of Civil Procedure provides that “leave to amend shall be freely given when
justice so requires,” Fed. R. Civ. P. 15(a), because Plaintiff’s proposed amendment to
add claims against Ms. Boyer would be filed approximately one and one-half years
after the statute of limitations on his proposed claims against Ms. Boyer would have
expired, he must seek leave of Court to amend his complaint pursuant to Rule 15(c),
which permits a plaintiff, in limited instances, to amend a complaint “as if it had been
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filed at the time of the original complaint.” Singletary v. Pa. Dept. of Corr., 266 F.3d
186, 189 (3d Cir. 2001).
Pursuant to its terms, Rule 15(c)(1) applies in three situations:
(1)

When an Amendment Relates Back. An amendment to a pleading
relates back to the date of the original pleading when:
(A)

the law 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 against it, but
for a mistake concerning the proper party’s identity.

Fed. R. Civ. P. 15(c).
The United States Court of Appeals for the Third Circuit has explained the
application of the rule as follows:
The Rule is written in the conjunctive, and courts interpret
[15(c)(1)(C)] as imposing three conditions, all of which
must be met for a successful relation back of an amended
complaint that seeks to substitute newly named defendants.
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The parties do no dispute that the first condition – that the
claim against the newly named defendants must have arisen
“out of the conduct, transaction, or occurrence set forth or
attempted to be set forth in the original pleading – is met.
The second and third conditions are set out in
[15(c)(1)(C)(I) and (ii)], respectively, and must be met
“within the period provided by Rule 4(m) for service of the
summons and complaint,” Fed. R. Civ. P. [15(c)(1)(C)],
which is “120 days after the filing of the complaint,” Fed.
R. Civ. P. 4(m). The second condition is that the newly
named party must have “received such notice of the
institution of the action [within the 120 day period] that the
party will not be prejudiced in maintaining a defense on the
merits.” Fed. R. Civ. P. [15(c)(1)(C)(I)]. Urrutia [v.
Harrisburg County Police Dept., 91 F.3d 451, 458 (3d Cir.
1996)] states that this condition “has two requirements,
notice and the absence of prejudice, each of which must be
satisfied.” 91 F.3d at 458. The third condition is that the
newly named party must have known, or should have
known, (again, within the 120 day period) that “but for a
mistake” made by the plaintiff concerning the newly named
party’s identity, “the action would have been brought
against” the newly named party in the first place. Fed. R.
Civ. P. [15(c)(1)(C)(ii)].
Singletary, 266 F.3d at 194 (some citations omitted). In accordance with the
foregoing,
we are concerned with three issues: (1) did [Boyer] receive
notice of the institution of the action before [June 30, 2010]
(which is 120 days after the complaint was filed); (2) was
the notice that [Boyer] received sufficient that [s]he was not
prejudiced in maintaining [her] defense; and (3) did [Boyer]
know (or should [s]he have known) by [June 30, 2010] that
but for a mistake [Plaintiff] would
have named [her]
as a party in the
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original complaint?
As explained
above, the answers
to all these
questions must be
“yes” for [Plaintiff]
to prevail on her
Rule [15(c)(1)(C)]
argument.
Id. Application of this test to the case before the Court compels the conclusion that
Plaintiff has not demonstrated that Rule 15(c) permits a relation-back amendment of
the complaint to add Ms. Boyer as a defendant.
Plaintiff maintains that when he commenced this action, he did not have access
to the identification of each individual who “medically evaluated” him on March 16,
2008. (Doc. 43-2, at 7) For that reason, Plaintiff included three “John Does” and
three “Jane Does” as placeholder defendants. Plaintiff claims that it was not until the
parties had engaged in discovery, but after the statute of limitations had run, that he
became aware that Ms. Boyer was among the medical personnel who saw Plaintiff
shortly before he suffered the grand mal seizure on March 16, 2008. Nevertheless,
Plaintiff argues that Ms. Boyer received “imputed notice”of the action under two
separate theories, and that amendment should further be permitted because within the
120-day period following the commencement of this action, Ms. Boyer should have
known that but for a mistake concerning her identity, she would have been named as
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a defendant in this action. As discussed below, we do not find any of Plaintiff’s
assertions persuasive.
A.

Identity of Interest

Plaintiff first argues that Ms. Boyer should be deemed to have received imputed
notice through the “identity of interest” method because Plaintiff had already named
as defendants Drs. Underwood, Beaven, and Miller, as well as other DOC employees
who had received notice of the original complaint. (Doc. 43-2, at 8) Plaintiff
contends that these 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
litigation to the other.” (Id.) Defendants dispute Plaintiff’s assertion, noting that there
are several hundred DOC employees at SCI-Camp Hill, and that inmate litigation
against DOC staff is common. Accordingly, Defendants maintain that Plaintiff has
failed to show such an identity of interest shared by Ms. Boyer and the nearly 50 other
defendants named in the complaint to permit amendment of the complaint pursuant
to Rule 15(c) to name her as a defendant.
Upon consideration, we agree with Defendants. In Singletary, the Third Circuit
accepted the “identity of interest” method for imputing notice for purposes of Rule
15(c). 266 F.3d at 198. In that case, the appeals court considered whether a staff
psychologist employed by the Department of Corrections who worked at SCI9

Rockview could be deemed to have a sufficiently identical interest with the prison so
that notice given to SCI-Rockview could be imputed to the psychologist. The court
concluded that the staff psychologist had no administrative or supervisory duties at
the prison, and thus his employment alone could not serve as a sufficient basis to find
an identity of interest, “because [he] was clearly not highly enough placed in the
prison hierarchy for us to conclude that his interests as an employee are identical to
the prison’s interests.” Id. at 199. The court found that “absent other circumstances
that permit the inference that notice was actually received, a non-management
employee . . . does not share a sufficient nexus of interests with his or her employer
so that notice given to the employer can be imputed to the employee for Rule
[15(c)(1)(C)] purposes.” Id. at 200.
We find that the circumstances of Ms. Boyer’s employment compel a similar
result. Although Plaintiff has suggested that this case is different from Singletary,
because Plaintiff has named other prison medical providers as defendants, we find that
Plaintiff has failed to provide a sufficient basis to conclude that Ms. Boyer’s interests
as a nurse at the prison are so closely aligned with those of Drs. Underwood, Beaven,
and Miller, or other correctional staff, to permit the inference that Ms. Boyer has
received imputed notice of this action.

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In addition, we do not find “other

circumstances that permit the inference that notice was actually received” by Ms.
Boyer about this lawsuit to permit amendment at this late date.
B.

Shared Attorney

Even less persuasive is Plaintiff’s contention that the Court should find imputed
notice on the basis that Ms. Boyer and the other DOC defendants are represented by
the same attorney.
“The ‘shared attorney’ method of imputing Rule [15(c)(1)(C)] notice is based
on the notion that, when an originally named party and the party who is 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.”
Singletary, 266 F.3d at 196. The “fundamental issue” is whether the attorney’s “later
relationship with the newly named defendant gives rise to the inference that the
attorney, within the 120 day period, had some communication or relationship with,
and thus gave notice of the action to, the newly named defendant.” Id.
In this case, there is simply no evidence that Defendants’ counsel
communicated to Ms. Boyer within the 120-day notice period about the action. In
fact, Defendants’ counsel has represented to the Court that he would swear under oath
that no such communication occurred before August 18, 2011, after counsel learned
that Plaintiff’s counsel would seek leave to join Ms. Boyer as a defendant, and months
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after the 120-day notice period had passed. In addition, the Third Circuit has
instructed that “a plaintiff must show that there was ‘some communication or
relationship’ between the shared attorney and the John Doe defendant prior to the
expiration of the 120-day period in order to avail him or herself of the shared attorney
method of imputing notice.” Garvin v. City of Philadelphia, 354 F.3d 215, 225 (3d
Cir. 2003). In this case, Plaintiff has come forward with no evidence that would
demonstrate any such “communication or relationship.” Finding no evidence that
these requirements have been satisfied, we must conclude that the “shared attorney”
method of providing imputed notice has no application to this particular case.2

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Moreover, we note that Defendants’ counsel has not entered an appearance
on behalf of Ms. Boyer, and is not presently representing her in this litigation.
Under the “shared attorney” method of establishing imputed notice, the test “is not
whether new defendants will be represented by the same attorney, but rather
whether the new defendants are being represented by the same attorney.” Garvin,
354 F.3d at 223. Accordingly, the fact that counsel is not presently representing
Ms. Boyer is yet another reason why Plaintiff’s argument regarding the “shared
attorney” method of demonstrating imputed notice is unpersuasive. We recognize
that a lawyer need not enter an appearance on behalf of an individual in order to
represent that individual, Garvin, 354 F.3d at 224, but in this case Plaintiff has not
come forward with any evidence that Defendants’ counsel represented Ms. Boyer
in any legal capacity during the 120-day notice period, or afterward.
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C.

Mistake

In addition, Plaintiff has argued that leave to amend should be granted pursuant
to Rule 15(c)(1)(C)(ii) on the grounds that Ms. Boyer knew or should have known
that, but for a mistake concerning her identity, the action would have been brought
against her. Plaintiff represents that it was not until November 12, 2010, during the
deposition of another DOC employee, that Ms. Boyer was identified as a nurse who
saw Plaintiff on the day he suffered the injuries alleged in this action. Plaintiff again
notes that he named three “John Does” and “Jane Does” because he was unaware of
all of the identities of all the proper defendants, and that his ignorance about their
identities should constitute a mistake that permits a relation-back amendment pursuant
to Rule 15(c).3
The Third Circuit has observed that the relevant factors that go into an analysis
of Rule 15(c)(1)(C)(ii) sometimes present “sticky issues”, since it can be difficult to
determine whether a putative defendant knew or should have known that she would
have been named in a complaint if her identity had been known. Singletary, 266 F.3d
at 201. In contrast to most other courts of appeal, the Third Circuit holds that

3

In Singletary, the Third Circuit adhered to circuit precedent that where a
defendant’s proper identity was unknown at the time the action commenced, “a
plaintiff’s lack of knowledge of a particular defendant’s identity can be a mistake
under Rule [15(c)(1)(C)(ii)].” Singletary, 266 F.3d at 200 (citing Varlack v. SWC
Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977).
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ignorance about a proper party’s identity can constitute a “mistake” under the rule,
and thus permits relation-back amendments where a plaintiff has named a “John Doe”
or “Jane Doe” defendant, simply because the plaintiff did not know the party’s
identity. See id.; Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir. 1977);
see also Trant v. Towamencin Twp., 1999 U.S. Dist. LEXIS 7302, 1999 WL 317032,
at *5-6 (E.D. Pa. 1999); Trautman v. Lagalski, 28 F. Supp. 2d 327, 330 (W.D. Pa.
1998); Cruz v. City of Camden, 898 F. Supp. 1100, 1110 n.9 (D.N.J. 1995).
Upon consideration, although this presents a somewhat close issue, we do not
find that Plaintiff has demonstrated that Ms. Boyer should have known that, but for
a mistake about her identity, she would have been named as a defendant. As an initial
matter, Plaintiff named nearly 50 defendants in this case, including many corrections
officials and staff, and three physicians. Plaintiff also named six “Doe” defendants.
Plaintiff has not persuaded us that the facts of this case are such that Ms. Boyer knew
or should have known that she was intended to be one of those “Doe” defendants.
Moreover, Defendants have appended to their brief discovery responses that
they provided Plaintiff in this case notifying him that Ms. Boyer was among the
medical staff that saw or treated him prior to his injuries. (Doc. 45, Exs. A and C)
Defendants thus maintain that Plaintiff was made aware of Ms. Boyer’s identity in
March 2010, and well within the 120-day notice period. In spite of having been given
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discovery responses during this early time period, Plaintiff waited until September,
2011, to move for leave to amend the complaint. Thus, we find Plaintiff’s allegations
that Ms. Boyer should have known that she would have been named as a defendant
to be not only speculative and without a firm basis, but we find further that Plaintiff
was unreasonably dilatory in seeking to amend the complaint in this case for more
than one year after he was given notice that Ms. Boyer was among the medical team
who treated Plaintiff prior to his injuries at SCI-Camp Hill. Plaintiff has provided no
response to Defendants’ documented representations, and we find that Plaintiff has
failed to demonstrate that amendment should be permitted pursuant to Rule
15(c)(1)(C)(ii).
IV.

ORDER
Accordingly, for the reasons set forth above, IT IS HEREBY ORDERED

THAT Plaintiff’s motion for leave to amend the complaint pursuant to Rule 15(c) of
the Federal Rules of Civil Procedure (Doc. 43) is DENIED.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: November 1, 2011

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