Heath v. Shannon et al
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAVID MARTIN, et al.,
Hon. John E. Jones III
July 17, 2013
This matter comes before the Court on the renewed motions for joinder of
parties (doc. 252) and for substitution of parties (doc. 254) of the pro se Plaintiff,
Daniel Heath (“Plaintiff”). The parties and the Court are intimately familiar with
the procedural posture of this matter, which has been actively litigated on this
Court’s docket for nearly nine years; as such, we recite only the most pertinent
background material here for the benefit of the reader.
The pro se Plaintiff commenced this action under 42 U.S.C. § 1983 on
October 18, 2004, with the filing of a complaint (doc. 1), asserting various civil
rights claims against fourteen defendants in all.1 Therein, the pro se Plaintiff
As we noted in denying the Plaintiff’s first motion to substitute, all Defendants with the
exception of David Martin have since been dismissed.
alleges that Defendant David Martin (“Martin”), collectively with others and
individually, acted negligently and with deliberate indifference in the medical care
and treatment of the Plaintiff during his incarceration. (Id.). On September 30,
2011, Martin’s counsel filed a Suggestion of Death (doc. 200) for Martin, and on
October 4, 2011, cognizant of the legal import of Martin’s passing under Federal
Rule of Civil Procedure 25(a), we ordered the pro se Plaintiff to file a motion for
substitution of a proper party pursuant to Rule 25(a)(2) or face dismissal of his
lawsuit. The Plaintiff filed a motion for substitution and request for a hearing on
October 27, 2011 (doc. 206).
The parties fully briefed their respective positions on that motion, and
thereafter, we ordered them to jointly undertake an investigation to determine
whether a proper party capable of being substituted for Martin exists. At the
conclusion of that investigation, the parties submitted status reports which noted
that Martin was divorced at the time of his death with no tangible asserts and that
the closest surviving relative was a step-daughter, his former wife’s child by a prior
union. After reviewing the parties’ reports, Chief Magistrate Judge Martin C.
Carlson issued a report and recommendation which concluded that “while the
claim against [Martin] survives his death, nothing else tangible survives.” Judge
Carlson specifically found that there are no assets to which any potential successor
could succeed and, further, that it would be inequitable and inappropriate to force
Martin’s stepdaughter to litigate this action in this venue, hundreds of miles from
her home, given her attenuated connection to Martin in the first place. (Doc. 237,
pp. 10-11). Cognizant of the reality that failure to identify a substitute party would
result in the dismissal of the remainder of the Plaintiff’s lawsuit, Judge Carlson
recommended that we grant the Plaintiff an additional ninety (90) days in which to
file another motion to substitute should an appropriate party be discovered. (Id.).
We wholly agreed with Judge Carlson’s analysis and, on July 13, 2012, issued a
memorandum and order (doc. 246) which adopted his report and recommendation
in its entirety.
Consistent with the leave granted in our July 13, 2012 Order, the pro se
Plaintiff filed renewed motions for joinder (doc. 252) and substitution (doc. 254)
on April 22, 2013. In his motion for substitution, the pro se Plaintiff argues that the
cause of action survives Martin’s death––a conclusion which is undisputed–– and
that Martin’s counsel be tasked with identifying to the pro se Plaintiff the name
and address of Martin’s estate executor, administrator or representative, or
alternatively, information relating to Martin’s closest living relative. (Doc. 255, p.
7). In the motion for joinder, the pro se Plaintiff seeks joinder of Corizon Health,
Inc. (“Corizon”), certain unidentified supervising physicians, and the Pennsylvania
Department of Corrections Bureau of Healthcare (“BHC”) as Defendants. (Doc.
25, pp. 3-4). Corizon has filed papers opposing both of the motions (docs. 258-59),
and the pro se Plaintiff has filed reply papers (docs. 265-66). The motions are thus
ripe for this Court’s disposition.
In light of the widely varying forms of relief requested by the pro se Plaintiff
in his motions and the diverse analyses attendant thereto, the Court will address
first the motion for substitution before turning to the Plaintiff’s joinder request. For
all of the reasons that follow, we will ultimately deny both motions.
Motion for Substitution
Federal Rule of Civil Procedure 25 provides for substitution of parties in the
event that a claim is not extinguished as follows:
If a party dies and the claim is not extinguished, the court
may order substitution of the proper party. A motion for
substitution may be made by any party or by the
decedent’s successor or representative. If the motion is
not made within 90 days after service of a statement
noting the death, the action by or against the decedent
must be dismissed.
Fed. R. Civ. P. 25. “It is axiomatic that Rule 25 limits properly substituted parties
to those individuals who can adequately represent the interests of the deceased
party.” Sinito v. U.S. Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999). It is
well settled that decisions in this regard “are within the trial court’s discretion.”
McKenna v. Pacific Rail Serv., 32 F.3d 820, 836 (3d Cir. 1994).
In his motion for substitution, the pro se Plaintiff largely echoes the same
arguments made by his prior counsel in briefing the first motion to substitute. In
fact, the Plaintiff submits no new argument to the Court, nor does he suggest an
appropriate party for substitution pursuant to Federal Rule of Civil Procedure 25,
as we had directed him. Instead, the pro se Plaintiff argues that it is incumbent
upon Martin’s counsel, not the Plaintiff, to identify a proper party for substitution
and that Martin’s counsel should thus identify Martin’s representative to the Court
and the Plaintiff, seeking “disclosure of Martin’s estate executor, administrator, or
representative, or on [sic] the alternative, information relating to Martin’s death,
most recent known address, and closest living relatives.” (Doc. 255, p. 3). Both
Judge Carlson and the undersigned have thoroughly visited these contentions in
our earlier memoranda, extending every courtesy to the Plaintiff as we did. In one
final exercise of deference to the pro se Plaintiff, compelled by an abundance of
caution in light of the fact that failure of an adequate substitute requires dismissal
of the Plaintiff’s lawsuit, we write briefly for benefit of the pro se Plaintiff to
address his replicated arguments.
At the outset, we note that to grant the apparent injunctive request of the
Plaintiff and order the investigation and disclosure of Martin’s estate information
and potential representatives would be as redundant as it would be inefficacious.
The Court has already ordered the parties to embark on just such an investigative
journey, and the end result of those concerted efforts has already been detailed
exhaustively by Judge Carlson and this Court. As we have previously noted, based
upon the uncontroverted report of counsel for Martin, that search revealed that at
the time of his death, Martin was divorced with no assets, liquid or otherwise, and
no insurance policy; in fact, Martin owed back taxes and his bank accounts were
overdrawn, and there was no estate to probate. The investigation further revealed
that Martin had no heirs and no legal representative and that, even in the event that
an appropriate successor could be identified, there were no assets to succeed to.
The pro se Plaintiff’s injunctive request that the Court order counsel for Martin to
again investigate the potential existence of an adequate successor is thus denied;
the Court is more than amply satisfied by the record that none exists..
The investigation also revealed that Martin had only living relative–a stepdaughter through his dissolved marriage–and that her only connection to Martin
was the result of her exceeding generosity in making a loan to Martin while he was
living and handling his funeral arrangements at his death. We concluded that both
Martin’s step-daughter and her husband, also proposed by the Plaintiff as a
successor, were too far removed to adequately defend the lawsuit and lacked any
interest in this litigation to satisfy the Court that they are the proper parties to
appoint as successors pursuant to Rule 25. No new argument or evidence is before
the Court on the Plaintiff’s renewed motion which would compel the Court to alter
that decision or our reasoning therefor, and we thus reaffirm our decision that
Martin’s closest living relative is also not an appropriate substitute party under
Rule 25 and decisional law interpreting the same.
Finally, in denying the Plaintiff’s first motion, we acknowledged Plaintiff’s
assertion that an insurance or other indemnity company might exist which could
properly be substituted as a party. We tasked the parties to determine whether, in
fact, such a company exists, and ordered the Plaintiff to file an appropriate motion
to substitute in the event that such a company was discovered. The Plaintiff’s
papers are lacking in any reference to such a company, and indeed, opposing
counsel observes that discovery has revealed that while there was an insurance
policy in effect for employees such as Martin during 2004 and 2005 (not 2003
when the incident occurred), the limits of that policy were exhausted in or around
February of 2008. (Doc. 258-2, p. 1). Thus, to the extent the pro se Plaintiff has not
waived this argument by failing to resurrect it in his pending motions, we are
nonetheless compelled to reject it, as there is no evidence that an insurance or
indemnity company exists and/or is the proper party to substitute for Martin.
We are not unsympathetic to the Plaintiff’s plight and are cognizant of the
stark reality that failure to identify an appropriate substitute party is dispositive to
the Plaintiff’s claims in this instance. However, regardless of the fact that the pro
se Plaintiff’s claims survive the death of Martin, a lawsuit simply cannot persist
unless an appropriate adversary has been identified who possesses an interest in the
litigation sufficient to satisfy the Court that he or she will adequately defend the
deceased defendant’s interests. It is clear that such a party has not, and most
probably can not, be identified. In the absence of any evidence that an appropriate
substitute party exists or ever will be identified, we cannot but again deny the
Plaintiff’s motion for substitution and dismiss his remaining causes of action. See
Froning’s, Inc., v. Johnston Feed Serv., Inc., 568 F.2d 108, 110 n.4 (8th Cir. 1978)
(decision whether to substitute parties lies within discretion of the trial judge).
Motion for Joinder
As an alternative to his request for substitution, the pro se Plaintiff has also
filed a motion seeking joinder of several of Martin’s unidentified supervisors,
Corizon Health, Inc. (“Corizon”), which he alleges employed or contracted with
Martin, and the Pennsylvania Department of Corrections Bureau of Healthcare
(“BHC”). While the pro se Plaintiff repeatedly requests “substitution” of these
parties in his motion, it is clear from the arguments made in his support and reply
briefs that what the Plaintiff truly seeks is an order from the Court concluding that
Federal Rule of Civil Procedure 15(a) permits amendment of his complaint at this
juncture to join these new parties as defendants in this action.2 Corizon asserts that
the Plaintiff has failed to properly seek leave to amend as required by Local Rule
15.1, that any such leave would result in undue delay and substantial prejudice to
the proposed defendants, and that, in any event, such leave would be futile because
his vaguely proposed claims are ultimately meritless.
As a threshold matter, we note that our earlier Order (doc. 246) did not grant
blanket leave to the pro se Plaintiff to seek out those who may have been, but for
whatever reason were not, named as original Defendants nearly nine (9) years ago
when this action was commenced. We limited our declination to dismiss the pro se
Plaintiff’s claims altogether to account for the possibility that an insurance or
indemnity company might exist which could properly be substituted for the sole
remaining Defendant, David Martin. It appears that now, faced with almost certain
dismissal of his lawsuit, the Plaintiff is attempting to restate a brand new lawsuit
against the various prospective defendants identified in his motion, not on the
We are compelled to note that even in the event the Plaintiff had properly argued that
these parties are adequate substitutes for Martin rather than additional defendants, that argument
would nonetheless fail as there is no evidence before the Court that any or all of these proposed
parties possess an interest in Martin’s right sufficient to adequately defend the same.
theory of deliberate indifference that is the basis of his only remaining claims, but
instead on a theory of negligence in supervision of Martin.
With this understanding of the basis of his new claims, we must analyze the
Plaintiff’s motion through the lens of both Federal Rule of Civil Procedure 15,
which pertains to amendment of pleadings, and Federal Rules of Civil Procedure
19 and 20, which pertain to compulsive and permissive joinder, respectively, as the
pro se Plaintiff’s request for relief, at least on its face, implicates both rules. We
thus begin our analysis by determining whether the proposed defendants are
appropriate parties to be joined under the requirements of either Rule 19 or Rule 20
before proceeding to an analysis of the requirements of Rule 15.
Rules 19 and 20: Compulsive and Permissive Joinder
Federal Rule of Civil Procedure 19 contemplates mandatory joinder of
parties in certain circumstances, providing as follows:
Required party. A person who is subject to service
of process and whose joinder will not deprive the
court of subject-matter jurisdiction must be joined
as a party if:
in that person’s absence, the court cannot
accord complete relief among existing
that person claims an interest relating to the
subject of the action and is so situated that
disposing of the action in the person’s
as a practical matter impair or
impede the person’s ability to protect
the interest; or
leave an existing party subject to a
substantial risk of incurring double,
multiple, or otherwise inconsistent
obligations because of the interest.
Fed. R. Civ. P. 19(a). Similarly, Rule 20 provides for permissive joinder of parties
Defendants. Persons . . . may be joined in one
action as defendants if:
any right to relief is asserted against them
jointly, severally, or in the alternative with
respect to or arising out of the same
transaction, occurrence, or series of
transactions or occurrences; and
any question of law or fact common to all
defendants will arise in the action.
Fed. R. Civ. P. 20(a)(2). The Plaintiff, although he offers no particular argument in
support of his position, cites to both rules before broadly concluding that the
parties identified in his papers must be joined in this litigation.
At the outset, we reject the Plaintiff’s contention that the parties identified in
his papers are subject to mandatory or compulsive joinder pursuant to Rule 19.
That Rule pertains where the party sought to be joined is a real party in interest to
the subject matter of the action; that is, where the party identified by the movant
has some ownership or other interest in whatever is subject to the action or the
court could not accord complete and final relief to any party without ordering his
joinder. The pro se Plaintiff’s papers, the brevity of which speaks volumes as to the
merits of his arguments, are devoid of anything beyond general assertions to
suggest that these vaguely identified parties possess any interest in this litigation
such that Rule 19 mandates their joinder. For this reason, we will deny the pro se
Plaintiff’s motion to the extent it can be construed to seek the compulsive joinder
of any party pursuant to Rule 19.
Our analysis under Rule 20 differs slightly, however, because by its nature,
the rule is permissive and accords broader relief. Specifically, Rule 20 permits
joinder where the plaintiff demonstrates that his claims against the parties sought to
be joined “arise out of the same transaction(s) or occurrence(s)” as the existing
claims and “that a question of law or fact common to all joined parties will arise.”
Miller v. Hygrade Food Prods. Corp., 202 F.R.D. 142, 143-44 (E.D. Pa. May 11,
2001). Corizon asserts in its opposition papers that there are no facts before the
Court from which we might conclude that the claims against the parties sought to
be joined arise from the same occurrences as the claims against Martin. However,
viewing the record in the Plaintiff’s favor, we must disagree.
While the particulars of the Plaintiff’s proposed claim are less than pellucid,
it can be fairly drawn from his motion seeking joinder that he believes that both
Corizon, as Martin’s one-time employer, and his other unidentified supervisors are
liable vicariously for Martin’s alleged medical errors during his treatment in 2003.
(Doc. 253, pp. 3-5). On that basis, then, it is thus at least plausible that there exist
common issues of fact as between Martin and the prospective defendants which
might warrant their joinder in this action. While the pro se Plaintiff offers no such
facts in his papers, we can fairly speculate that as Martin’s supervisors and/or
employers, there could obtain common factual disputes with regard to the 2003
incident. Thus, we conclude that the prospective parties could have been joined
pursuant to Rule 20 at the commencement of this action or shortly thereafter.
However, the mere fact that the parties might have been properly joined
when the complaint was initially filed is by itself not sufficient to support the filing
of claims against them today, as the pro se Plaintiff must also demonstrate that
Rule 15 permits him to amend his pleadings to join those parties at this late
juncture. We thus turn next to a consideration of the requirements of Rule 15.
Rule 15: Amendment
Where a party, pro se or counseled, moves for leave to amend a pleading
after a responsive pleading has been filed or the scheduling deadline has elapsed,
the court must analyze the request under both Rule 15(a) and Rule 16(b) of the
Federal Rules of Civil Procedure. Fed. R. Civ. P. R. 15(a) (“In all other cases, a
party may amend its pleading only with the opposing party’s written consent or the
court’s leave.”); Fed. R. Civ. P. R. 16(b)(4) (“A schedule may be modified only for
good cause and with the judge’s consent.”). Leave to amend a pleading “shall be
freely given when justice so requires” pursuant to Rule 15(a)(2).
“In the absence of substantial or undue prejudice, denial [of amendment]
must instead be based on bad faith, dilatory motives, truly undue or unexplained
delay, repeated failures to cure the deficiencies by amendments previously
allowed, or futility of amendment.” Braddy-Robinson v. Hilton Scranton Hotel &
Conf. Ctr., 2008 U.S. Dist. LEXIS 72643, *4-5 (M.D. Pa. 2008) (quoting Lorenz v.
CSX Corp., 1 F.3d, 1406, 1414 (3d Cir. 1993)). An amendment is “futile” if it fails
to state a claim for which relief could be granted. Grayson v. Mayview State Hosp.,
293 F.3d 103, 113 (3d Cir. 2002). “[P]rejudice to the non-moving party is the
touchstone for the denial of amendment.” Cornell & Co. v. Occupational Safety &
Health Review Comm’n, 573 F.2d 820, 823 (3d Cir. 1978). Ultimately, whether the
proposed defendants could have permissively been joined at one time pursuant to
Rule 20 is of little moment because we conclude that the Plaintiff has failed to
establish that amendment is now permitted by Rule 15. For a variety of reasons,
each of which we address thoroughly below for the benefit of the pro se Plaintiff,
we must deny his motion for leave to amend.
First, the Plaintiff’s motion to amend demonstrates a total lack of effort to
comply with the Local Rules of Court, of which we presume the pro se Plaintiff
must be aware after litigating this federal matter for nearly nine (9) years, largely
without the aid of counsel. Of particular relevance here, Local Rule 15.1 provides
The party filing the motion requesting leave to file an
amended pleading shall provide: (1) the proposed
amended pleading as set forth in subsection (a) of this
rule, and (2) a copy of the original pleading in which
stricken material has been lined through and any new
material has been inserted and underlined or set forth in
Local Rule 15.1. The purpose of this rule is two-fold: first, it allows the movant’s
adversary to adequately determine the claims against it and properly oppose the
motion for leave to amend, and second, it allows the Court to review the merits of
the claims and determine ultimately whether leave to amend would be futile or
whether any of the other factors relevant to such leave are implicated. Here, absent
such a proposed pleading, the pro se Plaintiff has made the Court’s task all the
more burdensome by impelling us to consider his proposed claims on the basis of
the arguments in his brief alone.
Notwithstanding this total lack of compliance with this Court’s rules, we are
mindful of Plaintiff’s pro se status and thus are inclined to exercise our discretion
to overlook his procedural failures because his motion papers otherwise appear to
set forth all facts in his possession with regard to the proposed new parties, and the
claims thereagainst can be presumed from the record as currently developed. Still,
despite our generous deference to the Plaintiff, we cannot but conclude that his
undue delay in seeking leave to amend would result in substantial prejudice to the
parties sought to be joined and impose a considerable burden on the Court and,
perhaps more importantly, that the proposed amendments would nonetheless be
futile as the claims the Plaintiff seeks to assert are meritless.
First, we are in agreement with Corizon that the Plaintiff has unduly delayed
in seeking leave to amend his complaint. It is true, as Plaintiff posits that “[t]here is
. . .no presumptive period in which a motion for leave to amend is deemed ‘timely’
or in which delay becomes ‘undue,’” and whether delay is undue depends on the
particular facts and circumstance of each case. See Arthur v. Maersk, Inc., 434 F.3d
196, 205 (3d Cir. 2006); but cf. Maier v. Canon McMillan Sch. Dist., 2009 U.S.
Dist. LEXIS 42009, *6-7 (W.D. Pa. May 18, 2009) (fourteen month delay where
discovery was closed and summary judgment motions were pending is undue
where parties “failed to give any credible reason justifying their delay”);
Nat’l Recovery Agency, Inc., v. AIG Domestic Claims, Inc., 2006 U.S. Dist. LEXIS
27889, *4-13 (M.D. Pa. May 9, 2006) (five month delay before moving to amend
answer, before close of discovery and absent prejudice to plaintiff, is not undue).
Thus, in determining whether leave to amend is appropriate or whether the movant
has unduly delayed in seeking leave, we are directed to consider the totality of the
circumstances of the case.
Any reading of the record before us, however, reveals that we are here not
presented with a situation where a plaintiff, several months or even a few years
into litigation, has stumbled across a new cause of action or adversary. Indeed, we
cannot emphasize enough that it has been nearly nine (9) years since Plaintiff
commenced this action, and not once during that period, whether when counseled
or pro se, has he sought leave to amend or otherwise made reference to any of the
parties that he now seeks to join as defendants. The failure to diligently investigate
the roles of these proposed parties at the onset of this litigation or thereafter is
entirely the Plaintiff’s own, and to permit him to amend his complaint at this late
juncture would be to effectively sanction negligent or feckless self-representation.
Indeed, the pro se Plaintiff offers no explanation for his failure to seek leave to
amend earlier in this litigation, and we cannot on the papers before us conceive of
any except blatant carelessness. Such inexplicably undue delay certainly weighs
against a ruling in the Plaintiff’s favor on this motion.
Further, to permit the Plaintiff to surprise these new parties by adding them
as defendants at this stage would result in substantial prejudice thereto and would
indeed place a significant burden on this Court, which has already extended every
courtesy to the pro se Plaintiff over the course of this litigation. The events which
form the basis of the pro se Plaintiff’s claims, by his own allegation, occurred in
December of 2003 and possibly prior, presuming a failure to train or supervise
theory would be presented. Thus, evidence and documents that relate to the new
claims are nearly ten (10) years old, and at least one crucial witness, Defendant
David Martin, has since passed away, which in and of itself bespeaks a certain
palpable level of prejudice to the parties charged with defending these new claims.
Further, permitting the claims to be added and parties joined at this stage would
require the expenditure of significant additional resources to reopen discovery and
prepare for trial, including motions practice which we anticipate would likely
mirror those motions already adjudicated by the Court, significantly delaying final
resolution of this long-aged dispute. For this additional reason, in conjunction with
Plaintiff’s unreasonable lack of diligence, the inexplicable delay in seeking leave to
amend, and the undue burden which would be placed on the Court and the
prospective new parties, we conclude that granting the Plaintiff leave to amend at
this late juncture would be entirely improper and unjust.
Our decision is further bolstered by the additional and perhaps more critical
reason that, irrespective of whether we exercised our discretion and concluded that
undue delay, lack of diligence, and substantial prejudice do not warrant denial of
the Plaintiff’s motion, the apparent claims that the Plaintiff now seeks to assert are
nonetheless precluded by both the operative statute of limitations and substantive
law, thus rendering futile any pleading filed by the Plaintiff against the parties he
seeks to join. For these compelling additional reasons, we are constrained to deny
the Plaintiff’s motion for joinder and dismiss this action.
It is true, as the Plaintiff asserts, that Rule 15(a) provides that leave to amend
should be liberally granted when justice so requires; however, it has long been
observed that district courts may nonetheless deny leave when any such
amendment would be futile. As noted above, a proposed amendment is futile, and
leave to amend should be denied, where it fails to state a claim for which relief
could be granted. See Grayson v. Mayview State Hosp., 293 F.3d 103, 113 (3d Cir.
2002). Such a case exists where the statute of limitations or some other affirmative
defense would compel dismissal of the claim; thus, if the statute of limitations has
expired or some other legal defense bars the Plaintiff’s proposed claims, leave to
amend should be denied. Id.
Corizon’s arguments here are two-fold: first, it argues that the statute of
limitations applicable to Section 1983 deliberate indifference claims is two years,
and thus because the conduct underlying the Plaintiff’s claims took place at the
latest in December of 2003, any proposed amendment is untimely; second, it
asserts that vicarious liability or respondeat superior liability is an impermissible
basis for stating a Section 1983 deliberate indifference claim. We address these
two arguments seriatim, ultimately finding merit in both and concluding that the
Plaintiff’s proposed claims would not withstand Rule 12(b)(6) scrutiny and that
leave to amend would thus be futile.
As we have alluded above, the pro se Plaintiff has failed to file anything
resembling a proposed amended pleading such that the Court could fully ascertain
the scope of the claims against the newly identified defendants. We are again
cognizant, however, of the Plaintiff’s pro se status and thus attempt to glean from
his motion and brief, without the aid of an actual proposed pleading, those facts
which he believes support a claim against the prospective defendants. From our
review of Plaintiff’s papers, it is clear that his proposed claims against the newly
identified defendants derive from Martin’s employment and the prospective
defendants’ roles as his employer and/or supervisors and relate to their training,
supervision, and employment of Martin at the time of his alleged negligent conduct
in December of 2003. We consider first whether the Plaintiff’s claims against the
prospective defendants as they relate to this time period are timely and, second,
whether substantive law governing Section 1983 supervisory liability claims
nonetheless precludes the Plaintiff’s requested amendment.
It is clear from the record before the Court that the actions underlying the
Plaintiff’s claims against Martin, and thus his claims for supervisory liability, are
based on conduct which took place in December of 2003––nearly ten (10) years
before he filed his present motion for joinder and thus seven years and four (4)
months beyond the two year statute of limitations that all parties concede applies to
Section 1983 causes of action, seemingly barring the Plaintiff’s new claims. See
Kost v. Kozakiewicz, 1 F.3d 176 (3d Cir. 1993). The pro se Plaintiff contends that
this is of no moment, however, because the proposed amendments “relate back” to
the date of the original complaint pursuant to Federal Rule 15(c)(1).
Rule 15(c)(1) provides that amendments relate back to the date of the
original pleading, thus avoiding a statute of limitations defense, when they arise
out of the same occurrences set forth in the original pleading and, “within the [120
day] period provided by Rule 4(m) for serving the summons and complaint,” the
party sought to be added by amendment:
received such notice of the action that it will not be
prejudiced in defending on the merits; and
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)(1)(C). In order for Rule 15(c) to apply, it is “critical” that the
plaintiff “provide sufficient evidence that the newly named defendants were on
notice that they might be named as parties to the litigation.” Averhart v. Commcn’s
Workers of Am., 2013 U.S. Dist. LEXIS 12212, *8-9 (D.N.J. Jan. 30, 2013). Our
inquiry then is whether the plaintiff has established that the prospective defendants
“knew or should have known that [they] would have been named as a defendant
but for an error.” Krupski v. Costa Crociere, 130 S. Ct. 2485, 2493-94 (2010). The
Supreme Court has admonished that courts must not “conflate knowledge of a
party’s existence with the absence of mistake,” explaining that merely because a
plaintiff “knows of a party’s existence does not preclude her from making a
mistake with respect to that party’s identity.” Id. at 2494.
Guided by this precedent, we cannot but conclude that the Plaintiff here has
failed to establish that relation back is appropriate. There is no evidence before the
Court, and indeed no argument beyond broad speculation, that the prospective new
defendants were aware within the 120 day period following commencement of this
action that, but for a mistake on the Plaintiff’s part, they would have been named
as the defendants in this litigation.3 Not only has the Plaintiff failed to establish to
any degree that the proposed defendants were on notice that they should or would
have been named as defendants earlier absent a mistake on the Plaintiff’s behalf,
the Plaintiff has not even shown that his omission was indeed a mistake. It does not
appear to this Court that the pro se Plaintiff’s failure to name any or all of these
proposed parties in his original complaint more than eight (8) years ago was a
mistake; rather, it is clear that the pro se Plaintiff, now faced with the impending
dismissal of his lawsuit as a result of Martin’s death and poverty, merely seeks a
new means of recovery. One’s disappointment with his chosen litigation strategy,
however, does not satisfy the requirements of the relation back doctrine. To permit
relation back for this purpose would run counter to the purpose of Rule 15(c) and,
again, endorse negligent litigation strategies. We thus conclude that the statute of
limitations precludes the pro se Plaintiff from asserting new claims against new
defendants at this juncture and that Rule 15(c)’s relation back doctrine does not
After reciting broad principles of Rule 15(c) jurisprudence, the Plaintiff argues that
there is no evidence of “bad faith” or “improper motive” on his part and that the only
justification for denial of amendment is undue delay. This argument goes to our analysis under
Rule 15(a), not Rule 15(c), and is thus of little moment to our relation back analysis, which tasks
the Court only to consider whether the prospective defendants knew or should have known that
they would have been named as defendants but for a mistake or inadvertence on the Plaintiff’s
part. See Krupski, 130 S. Ct. at 2493 (diligence irrelevant for purposes of Rule 15(c) analysis;
“information in the plaintiff’s possession is relevant only if it bears on the defendant’s
understanding of whether the plaintiff made a mistake . . .”).
apply to these circumstances.
A second ground exists, however, for a finding of futility, and thus whether
or not we apply the relation back doctrine to preclude a statute of limitations bar,
the Plaintiff’s proposed claims are nonetheless without merit. Plaintiff makes clear
that the only basis for his request to join these prospective defendants is their role
as Martin’s employer and/or supervisors, and his papers set forth no independent
basis for a finding of liability against them. (Doc. 266 (seeking liability against
“those who hired, trained, supervised, and contracted Martin out to satellite
location (prison) at SCI-Frackville (the place of the incident which precipitated this
action)”). It has long been established and consistently been reaffirmed, however,
that vicarious liability does not exist in causes of action pursuant to Section 1983.
See Polk County v. Dodson, 454 U.S. 312, 325 (1981) (“Section 1983 will not
support a claim based on respondeat superior liability.”); see also Evancho v.
Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (each defendant “must have personal
involvement in the alleged wrongdoing.”). Thus, because the pro se Plaintiff’s
claims are premised entirely on the proposed defendants’ capacities as Martin’s
supervisors and employer, and the Plaintiff does not argue otherwise in his reply
papers, amendment of his pleading to join the prospective defendants would
nonetheless be futile for this additional reason. Accordingly, we will deny the
Plaintiff’s motion for joinder and leave to amend in its entirety.4
In reaching the above conclusions, we are not unsympathetic to the stark
reality that as a result of the lack of an appropriate substitute for Defendant Martin,
Federal Rule of Civil Procedure 25 calls for dismissal of the remainder of the
Plaintiff’s action in its entirety. We have to this juncture, however, provided the
Plaintiff with every opportunity to endeavor to find a suitable successor, and the
failure of those efforts dictates the result we reach today. For all of the reasons
articulated hereinabove, the Court is constrained to deny the Plaintiff’s motion to
substitute (doc. 252) and motion for joinder and amendment (doc. 254) and thus
dismiss the remainder of his claims against Defendant Martin. An appropriate
order shall issue.
The Plaintiff’s motion also seeks injunctive relief from the Court in the form of an order
restraining the transfer or disposal of Martin’s assets pending resolution of this litigation. As this
Court and Judge Carlson have already found, and the Plaintiff has not controverted, Martin has
no assets which could be transferred or disposed or otherwise awarded to Martin or anyone else.
For this reason, in addition to our conclusion that this matter must be dismissed for lack of an
appropriate substitute party, we reject the Plaintiff’s request for injunctive relief.
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