Creed v. Commonwealth of Virginia et al
Filing
102
MEMORANDUM OPINION re: Defts Glendell Hill, Charles Land, Peter Meletis, and Prince William-Manassas Regional Jail Board's Objection to the United States Magistrate Judge Ivan Davis' Ruling and Order granting Pltf's Motion to Amend. Signed by District Judge James C. Cacheris on 07/06/12. (pmil)
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
)
)
)
)
)
)
)
)
)
JOHN P. CREED,
Plaintiff,
v.
GLENDELL HILL, et al.,
Defendants.
1:12cv317 (JCC/IDD)
M E M O R A N D U M
O P I N I O N
This matter is before the Court on Defendants
Glendell Hill, Charles Land, Peter Meletis, and Prince WilliamManassas Regional Jail Board’s (collectively, “Defendants”)
Objection [Dkt. 33] to United States Magistrate Judge Ivan
Davis’ Ruling and Order granting Plaintiff’s Motion to Amend
(the “Objection”).
For the following reasons, the Court will
sustain Defendants’ Objection.
I. Background
A.
Factual Background
Plaintiff John Creed (“Plaintiff”) brought this action
after his brother, William Creed (“Creed”), died while in
custody at the Prince William-Manassas Regional Adult Detention
Center (the “ADC”) on February 3, 2006.
Creed, who had been
detained for larceny and was exhibiting signs of mental
instability, allegedly became combative and resistant during a
1
medical examination before his planned transfer from the ADC to
Western State Hospital for involuntary commitment.
Compl. (“TAC”) [Dkt. 28] ¶¶ 14, 25, 34-36.)
guards restrained Creed.
(TAC ¶ 37.)
choke hold and then stopped breathing.
(Third Am.
Certain jail
Creed was placed in a
(Id.)
The autopsy
report noted Creed’s cause of death as “acute stress-induced
cardiac arrhythmia due to acute restraint-induced asphyxia and
blunt trauma.”
B.
(TAC ¶ 41.)
Procedural Background
Plaintiff originally filed suit in the Circuit Court
of Prince William County on February 1, 2008.
never served with this complaint.
filed an Amended Complaint.
Defendants were
On June 30, 2008, Plaintiff
(1:08cv862 [Dkt. 1].)1
The
defendants named in the Amended Complaint included the
Commonwealth of Virginia (the “Commonwealth”), Prince William
County Sheriff Glendell Hill (“Hill”), ADC Superintendent
Charles Land (“Land”), ADC Director of Inmate Services Peter
Meletis (“Meletis”),2 and various unknown John Does (the “John
Doe Defendants”).
(Id. Ex. A ¶¶ 2-7.)
Plaintiff alleged
negligence pursuant to the Virginia Tort Claims Act (“VTCA”)
against the Commonwealth of Virginia, gross negligence and
willful and wanton negligence against all defendants, and
1
This case is before the Court for a second time, having been remanded to
state court but later re-removed. On its previous sojourn in this Court, the
case had a different case number. References to filings made prior to remand
will reflect that case number.
2
Hill, Land, and Meletis are collectively referred to herein as the
“Supervisor Defendants.”
2
violations of 42 U.S.C. § 1983 against the John Doe Defendants
and Supervisor Defendants.
Defendants were served with the
Amended Complaint on August 6, 2008.
On August 21, 2008, the Supervisor Defendants filed a
petition for removal premised on federal question jurisdiction.
(Id.)
Both Plaintiff and the Commonwealth objected to removal
and moved for remand.
(1:08cv862 [Dkts. 4, 9].)
On January 12,
2009, this Court remanded the case to state court.
[Dkt. 24].)
(1:08cv862
The Court held that the Commonwealth was not a
nominal party to the action and that its objections precluded
removal.
See Creed v. Virginia, 596 F. Supp. 2d 930, 935 (E.D.
Va. 2009).
Plaintiff filed a Second Amended Complaint in Prince
William County Circuit Court on April 30, 2009.
[Dkt. 1-2.]
The defendants named in the Second Amended Complaint included
the Commonwealth, the ADC, the Supervisor Defendants, the Prince
William-Manassas Regional Jail Authority (the “Jail Authority”),
the Prince William-Manassas Regional Jail Board (the “Jail
Board”), and the John Doe Defendants.
On March 10, 2010,
Plaintiff filed a Motion for Leave to File an Amended Complaint
to Substitute the Names of Certain Defendants (the “Motion to
Amend”).
[Dkt. 17-1.]
In this motion, Plaintiff sought to add
certain jail guards as defendants in place of the John Doe
Defendants.
3
On March 16, 2012, the state court entered a non-suit
order, dismissing the Commonwealth as a defendant.
[Dkt. 1-1.]
With the Commonwealth no longer a party, the Supervisor
Defendants, along with the Jail Board, Jail Authority and ADC,
filed a second petition for removal on March 21, 2012.
1.]
[Dkt.
Prior to that time, no decision had been made on
Plaintiff’s Motion to Amend.
On April 23, 2012, Plaintiff filed
a renewed Motion to Amend in this Court.
[Dkt. 16.]
Defendants
filed an opposition to the Motion to Amend on May 1, 2012 [Dkt.
20], to which Plaintiff replied on May 4, 2012 [Dkt. 24].
On
May 11, 2012, Judge Davis granted Plaintiff’s Motion to Amend.
[Dkt. 27.]
Plaintiff filed a Third Amended Complaint on May 14,
2012.
[Dkt. 28.]
In the Third Amended Complaint, Plaintiff
added nineteen individuals as defendants (collectively, the
“Individual Defendants”),3 at the same time continuing to name
various unknown individuals as John Doe Defendants.
He also
withdrew the ADC and the Jail Authority as defendants in this
case.
Plaintiff’s claims include: (1) negligence against the
Jail Board (Count One); (2) gross negligence and willful and
wanton negligence against all defendants (Counts Two and Three);
(3) a Section 1983 claim against the Individual Defendants and
3
These individuals include Otis Whitehead, Kevin Delaney, Ralph Justice,
Terry Short, Harry Sepulveda, David Beard, Mary Ann Husk, Barclay Duegaw,
Jason Lee Kohne, David Wright, Andrew Arnold, Peter Sloper, William Smith,
Jason Allen, Sonny Bettis, Robert Hendricks, Tracy Allen, Wayne Wynkoop, and
Carl Larry.
4
John Doe Defendants (Count Four); and (4) a Section 1983
supervisory liability claim against the Supervisor Defendants
(Count Five).
On May 18, 2012, Defendants filed an Objection [Dkt.
33] to Judge Davis’ Ruling and Order granting Plaintiff’s Motion
to Amend.
Plaintiff filed an opposition on May 31, 2012, [Dkt.
39] to which Defendants replied on June 4, 2012 [Dkt. 40].
Defendants’ Objection is before the Court.
II.
Standard of Review
Federal Rule of Civil Procedure 72(a) permits a party
to submit objections to a magistrate judge’s ruling on nondispositive matters.
Fed. R. Civ. P. 72(a); 28 U.S.C. §
636(b)(1)(A); see also Fed. Election Comm'n v. The Christian
Coal., 178 F.R.D. 456, 459-60 (E.D. Va. 1998) (citing Thomas E.
Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 525 (2d Cir. 1990)).
Only if a magistrate judge’s decision is “clearly erroneous or
contrary to law” may a district court modify or set aside any
portion of the decision.
636(b)(1)(A).
Fed. R. Civ. P. 72(a); 28 U.S.C. §
A court’s “finding is ‘clearly erroneous’ when
although there is evidence to support it, the reviewing court on
the entire evidence is left with the definite and firm
conviction that a mistake has been committed.”
United States v.
U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Harman v.
Levin, 772 F.2d 1150, 1152 (4th Cir. 1985).
5
The leading
treatise on federal practice and procedure describes the
alteration of a magistrate’s non-dispositive order as “extremely
difficult to justify.”
12 Charles Alan Wright, et al., Federal
Practice and Procedure § 3069 (2d ed. 1997).
III. Analysis
Defendants object to Judge Davis’ Ruling and Order
granting Plaintiff’s Motion to Amend.
“[L]eave to amend a
complaint under Federal Rule of Civil Procedure 15(a) should be
freely given, unless the amendment would be prejudicial to the
opposing party, there has been bad faith on the part of the
moving party, or the amendment would have been futile.”
Steinburg v. Chesterfield Cnty. Planning Comm’n, 527 F.3d 377,
390 (4th Cir. 2008) (citations and internal quotation marks
omitted).
In granting Plaintiff’s Motion to Amend, Judge Davis
held that the addition of the Individual Defendants in
Plaintiff’s Third Amended Complaint was not unduly prejudicial.
(Tr. [Dkt. 36] 47:18-22.)
He also held that, although the
claims against the Individual Defendants were asserted outside
the applicable limitations period, amendment was not futile
because those claims related back to Plaintiff’s original
complaint.
Defendants contend that Judge Davis erred in both
respects.
The Court begins by addressing the issue of relation
back.
The parties agree that a two-year statute of limitations
6
applies to the claims which Plaintiff now asserts against the
Individual Defendants.4
Plaintiff’s claim accrued on February 3,
2006, when Creed sustained personal injuries and ultimately
died.
See Va. Code § 8.01-230.
Plaintiff filed his original
complaint on February 1, 2008 –- two days before the statute of
limitations expired.
this complaint.
As noted above, Plaintiff never served
Rather, he filed an amended complaint on June
30, 2008, which was served on August 6, 2008.
Because the
claims against the Individual Defendants in the Third Amended
Complaint were asserted outside the two-year limitations period,
they are untimely, and amendment is futile, unless they relate
back to Plaintiff’s original complaint.
Pursuant to Federal Rule of Civil Procedure
15(c)(1)(C), an amended complaint which adds a new party may
relate back to the original complaint where three requirements
are met: (1) the claim against the new party arose out of the
same conduct, transaction, or occurrence set forth in the
original pleading; (2) within the period provided by Rule 4(m)
for service of the summons and complaint (ordinarily 120 days
from when the complaint is filed), the new defendant received
such notice of the action that it will not be prejudiced in
4
In Virginia, negligence claims involving personal injuries are governed by
the two-year statute of limitations for personal injury actions. Va. Code §
8.01-243(A); Laws v. McIlroy, --- Va. ----, 724 S.E.2d 699, 702 (Va. 2012).
There is no federal statute of limitations for Section 1983 claims, so the
two-year statute of limitations for personal injury actions is applied there
as well. Lewis v. Richmond City Police Dep’t, 947 F.2d 733, 735 (4th Cir.
1991).
7
maintaining a defense; and (3) within the same period, the new
defendant knew or should have known that, but for a mistake
concerning the identity of the proper party, the action would
have been brought against that party.
15(c)(1)(C).
Fed. R. Civ. P.
The plaintiff bears the burden of establishing all
three requirements.
See Garvin v. City of Philadelphia, 534
F.3d 215, 222 (3d Cir. 2003).
The parties do not dispute that the first requirement
is satisfied in this case.
Defendants, however, contend that
Plaintiff cannot meet the second and third requirements.5
In
finding the requirements for relation back satisfied, Judge
Davis concluded that Plaintiff had sufficiently established an
identity of interest between the Individual Defendants and the
Supervisor Defendants, such that constructive notice of this
action existed by means of the identity of interest theory.
Judge Davis also noted that there was insufficient information
before him to conclude that the Individual Defendants had actual
5
The Fourth Circuit has held that in cases involving the substitution of John
Doe defendants, the notice requirement of Rule 15(c)(1)(C) provides adequate
protection to the new party. See Goodman v. Praxair, Inc., 494 F.3d 458, 472
(4th Cir. 2007) (“[W]hen a person is provided notice within the applicable
limitations period that he would have been named in the timely filed action
but for a mistake, the good fortune of a mistake should not save him.”). The
Fourth Circuit reasoned that Rule 15(c)(1)(C)’s “emphasis on notice, rather
than on the type of ‘mistake’ that has occurred, saves the courts not only
from an unguided and therefore undisciplined sifting of reasons for an
amendment but also from prejudicing would-be defendants who rightfully have
come to rely on the statute of limitations for repose.” Id. at 473. Thus,
Defendants’ contention that Plaintiff cannot meet Rule 15(c)(1)(C)’s
“mistake” requirement is misplaced. Plaintiff need only demonstrate that the
Individual Defendants had notice of the action within the applicable
limitations period.
8
notice or that constructive notice existed by virtue of the
shared attorney theory.6
The Court finds that Judge Davis’ conclusion that
Plaintiff satisfied Rule 15(c)(1)(C)’s notice requirement was
clearly erroneous and contrary to law.
As the text of Rule
15(c)(1)(C) states, the party sought to be added must receive
notice of the action within the period provided for by Rule
4(m), which is typically 120 days from the filing of the
original complaint.7
See Robinson v. Clipse, 602 F.3d 605, 608
(4th Cir. 2010) (“The ‘limitation period’ for purposes of
analyzing whether the newly added defendant received notice and
should have had knowledge of the action is the Federal Rule of
Civil Procedure 4(m) service period []. Rule 4(m) requires
service of the summons and complaint within 120 days of the
complaint’s filing, unless good cause is shown for extending the
service.”)
6
The identity of interest and shared attorney theories are vehicles by which
actual notice to one party is imputed to another party. “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.”
Singletary v. Pa. Dep’t of Corrections, 266 F.3d 186, 197 (3d Cir. 2001)
(quoting 6A Charles Alan Wright et al., Federal Practice & Procedure § 1499,
at 146 (2d ed. 1990)). The shared attorney theory is related to the identity
of interest theory, and is based on the notion that when the original party
and the new party 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.” Id. at 196.
7
Plaintiff originally filed his Motion to Amend in state court, and then
renewed it in this Court following removal. The parties agree that Rule
15(c)(1)(C) applies here. It bears mentioning, however, that Virginia Code §
8.01-6 appears to be more restrictive than its federal counterpart, requiring
notice to the new defendant “within the limitations period prescribed for
commencing the action.” Va. Code § 8.01-6.
9
Assuming that an identity of interest does exist
between the Supervisor Defendants and the Individual Defendants,
the Individual Defendants were not placed on constructive notice
within Rule 4(m)’s 120-day period, given that the Supervisor
Defendants did not receive service, and hence notice, of
Plaintiff’s action until more than six months after the original
complaint had been filed.8
In this vein, the Supreme Court’s
decision in Schiavone v. Fortune, 477 U.S. 21 (1986), is
instructive.
There, the plaintiffs filed actions prior to the
applicable limitations period, but served the defendant
afterwards.
Id. at 25.
The plaintiffs sued the wrong entity,
Fortune, and later sought leave to amend to name the correct
entity, Time.
Id. at 23.
The Supreme Court held that even if
it were to accept the identity of interest theory, and even if
Fortune could properly be named a defendant, relation back would
not be permitted because neither entity received notice of the
filing until after the applicable limitations period had run,
8
In his Motion to Amend, Plaintiff contended that the Supervisor Defendants
have been aware of this action since it was originally filed, but offered no
colorable support for this assertion. Plaintiff cited to a letter dated May
1, 2006, which reflects that Land notified Virginia’s Department of Treasury
of a “potential claim” under the Virginia Constitutional Officer Risk
Management Plan, VaRISK. (Mem. [Dkt. 17] at 8 n.5.) And, Plaintiff noted
that he gave the statutorily required notice of claim to the Virginia
Division of Risk Management and the Office of the Attorney General on January
3, 2007. Both of these letters are dated well before the commencement of
this action, which occurred on February 1, 2008. (Id.) Importantly, Rule
15(c)(1)(C)’s notice requirement pertains to an existing action, not a
potential one. Cf. Goodman, 494 F.3d at 472 (“[W]hen a person would
reasonably believe that the time for filing suit had expired, without having
been given notice that it should have been named in an existing action, that
person is entitled to repose.”) (emphasis added). Of course, the Supervisor
Defendants could not have had notice of an existing action before it was
actually filed.
10
and thus “there was no proper notice to Fortune that could be
imputed to Time.”
Id. at 29.
Rule 15 was amended in 1991 to
require notice to the new party within the period provided by
Rule 4(m) as opposed to the limitations period for commencing
the action, as in Schiavone.
See Fed. R. Civ. P. 15(c) Advisory
Committee Notes (1991 Amendment).
However, the Supreme Court’s
reasoning still applies here, given that the Supervisor
Defendants did not receive notice of Plaintiff’s action within
120 days of the filing of the original complaint, as prescribed
by current Rule 15(c)(1)(C).
Thus, as in Schiavone, there was
no proper notice to the Supervisor Defendants to impute to the
Individual Defendants.
Plaintiff therefore cannot demonstrate
that the Individual Defendants had constructive notice of his
action via the identity of interest theory within the Rule 4(m)
period, as required by Rule 15(c)(1)(C).
It is true, as Plaintiff points out, that an extension
to the Rule 4(m) period may be granted for good cause shown.
See Fed. R. Civ. P. 15(c) Advisory Committee Notes (1991
Amendment).
In an opposition to a motion to dismiss filed by a
number of the Individual Defendants, which Plaintiff filed after
oral argument on Defendants’ Objection, Plaintiff argues that
good cause exists to extend the Rule 4(m) period because he was
unable, despite the exercise of diligence, to identify the
Individual Defendants in a more timely manner.
11
Of course, the
inability to locate the Individual Defendants goes to
Plaintiff’s failure to provide those defendants with actual
notice.
However, Judge Davis expressly found that there was
insufficient evidence to conclude that the Individual Defendants
had received adequate actual notice (Tr. 48:18-22), and instead
based his ruling on a finding of constructive notice.
What is
relevant, then, is whether good cause exists to extend the Rule
4(m) period with respect to the Supervisor Defendants, through
whom Judge Davis imputed notice to the Individual Defendants.
Cf. Schiavone, 477 U.S. at 29 (examining whether there was
proper notice to originally named party that could be imputed to
new party).
In this regard, Plaintiff offers no explanation as
to why the Supervisor Defendants could not have been served with
the original complaint within the 120-day period prescribed by
Rule 4(m).
As such, Judge Davis’ conclusion that the Individual
Defendants were placed on constructive notice via the identity
of interest theory was clearly erroneous.
Plaintiff has failed
to establish that the Individual Defendants received notice of
this action –- actual or constructive -- as required by Rule
15(c)(1)(C).
The claims which Plaintiff seeks to assert against
the Individual Defendants therefore do not relate back to
12
Plaintiff’s original complaint and amendment would be futile.9
Accordingly, Plaintiff’s Motion to Amend should have been
denied, and Defendants’ Objection will be sustained.
IV.
Conclusion
For these reasons, the Court will sustain Defendants’
Objection.
An appropriate Order will issue.
July 6, 2012
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
9
The Court therefore need not address Defendants’ argument that amendment
would be unduly prejudicial because Plaintiff’s failure to identify the
Individual Defendants was solely due to Plaintiff’s neglect.
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?