Murphy v. Shelby County, Tennessee et al

Filing 17

ORDER to Show Cause. Signed by Chief Judge Jon Phipps McCalla on 7/31/2013. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
DIANA MURPHY,
Plaintiff,
v.
SHELBY COUNTY, TENNESSEE, and
JOHN DOES 1-5,
Defendants.

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No. 2:13-cv-02355-JPM-tmp

ORDER TO SHOW CAUSE

Before the Court is the Complaint, which states claims
against “John Does 1-5[, who] are employees of Shelby County,
Tennessee [sic] or the State of Tennessee, or political
subdivisions of the State of Tennessee, the identities of which
are unknown to the Plaintiff at this time.”

(See ECF No. 1-1 at

PageID 7-8, ¶ 3.)1
Plaintiff’s claims against John Does 1-5 show on their face
that they are barred by the applicable statute of limitations.
See Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601 F.3d
505, 512 (6th Cir. 2010) (“[A] motion for dismissal pursuant to
Rule 12(b)(6) will be granted if the facts as alleged are
insufficient to make a valid claim or if the claim shows on its
face that relief is barred by an affirmative defense.”).
1

The

When documents are not internally paginated, or when a single filing
contains multiple documents, the Court will refer to the Page Identification
(“PageID”) number that appears at the top right of documents filed on the
Case Management/Electronic Case Files system.

applicable statute of limitations for Plaintiff’s claims against
John Does 1-5, which are made pursuant to 42 U.S.C. § 1983 and
state-law negligence, is one year.

See Roberson v. Tennessee,

399 F.3d 792, 794 (6th Cir. 2005) (citing Tenn. Code Ann. § 233-104(a)(3)) (“Tennessee provides for a one-year limitations
period for civil rights actions under § 1983.”); Mann v. Alpha
Tau Omega Fraternity, 380 S.W.3d 42, 46 (Tenn. 2012) (“Tennessee
Code Annotated section 28–3–104 imposes a one-year statute of
limitations on personal injury actions . . . .”).

Plaintiff

asserts that her claims arise from an incident that occurred
“[o]n or about April 26, 2012.”
¶ 5.)

(See ECF No. 1-1 at PageID 8,

It has been more than one year since the time of the

alleged injury, and Plaintiff has not named the unknown parties
as required by Federal Rule of Civil Procedure 10(a).

See Doe

v. Porter, 370 F.3d 558, 560 (6th Cir. 2004) (“As a general
matter, a complaint must state the names of all parties.”
(citing Fed. R. Civ. P. 10(a))).

Plaintiff’s claims are thus

barred by the applicable statute of limitations.

See Cox v.

Treadway, 75 F.3d 230, 240 (6th Cir. 1996) (stating that
“[s]ubstituting a named defendant for a ‘John Doe’ defendant is
considered a change in parties” and that “Sixth Circuit
precedent clearly holds that new parties may not be added after
the statute of limitations has run”).

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Plaintiff cannot amend her Complaint to remedy this issue.
Plaintiff has indicated that she intends to amend her Complaint
“to add Parties in place of the John Doe defendants.”
No. 10 ¶ 3; see also ECF No. 11 at PageID 58.)

(See ECF

For Plaintiff’s

claims to be timely, however, the amendment must relate back to
the date of her original pleading pursuant to Federal Rule of
Civil Procedure 15(c).

Plaintiff’s claims will not relate back.

In her Complaint, Plaintiff names as Defendants “John Does 1-5
. . . the identities of which are unknown to the Plaintiff at
this time.”

(See ECF No. 1-1 at PageID 7-8, ¶ 3.)

“[A]dding

new, previously unknown defendants in place of ‘John Doe’
defendants ‘is considered a change in parties, not a mere
substitution of parties,’ and ‘such amendments do not satisfy
the “mistaken identity” requirement of Rule 15(c)[].’”

Smith v.

City of Akron, 476 F. App’x 67, 69 (6th Cir. 2012) (alteration
in original) (quoting Cox, 75 F.3d at 240).
Accordingly, the Court hereby gives NOTICE that it intends
to dismiss Plaintiff’s claims against John Does 1-5 as barred by
the applicable statute of limitation.

See Chase Bank USA, N.A.

v. City of Cleveland, 695 F.3d 548, 558 (6th Cir. 2012) (“Before
dismissing a complaint sua sponte, even if the dismissal is
without prejudice, the court must give notice to the
plaintiff.”).

Plaintiff shall have up to and including August

14, 2013, to show case as to why the claims against John Does 13

5 are not barred by the applicable statute of limitations.

If

Plaintiff does not sufficiently show cause by August 14, 2013,
the Court will dismiss with prejudice Plaintiff’s claims against
John Does 1-5 for failure to state a claim.

IT IS SO ORDERED, this 31st day of July, 2013.
/s/ Jon P. McCalla
JON P. McCALLA
CHIEF JUDGE, U.S. DISTRICT COURT

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