Farmer v. Wilson et al
MEMORANDUM OPINION AND ORDER granting defendant John Doe's 22 MOTION to Dismiss; the John Doe defendant(s) are dismissed from this action. Signed by Judge John T. Copenhaver, Jr. on 9/15/2014. (cc: counsel of record; any unrepresented parties) (taq)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 2:14-cv-13256
C.O. WILLIAM WILSON, individually and in
his official capacity as a correctional
officer of The West Virginia Regional Jail
and Correctional Facility Authority, and
CHIEF CORRECTIONAL OFFICER LT. LARRY BUNTING,
individually and in his official capacity, and
THE WEST VIRGINIA REGIONAL JAIL AND
CORRECTIONAL FACILITY AUTHORITY
an agency of the State of West Virginia, and
JOHN DOE, unknown person or persons,
MEMORANDUM OPINION AND ORDER
Pending is defendant John Doe’s motion to dismiss, filed
August 7, 2014. 1
Federal Rule of Civil Procedure 8(a)(2) requires that a
pleader provide “a short and plain statement of the claim
While the John Doe defendant(s) have not appeared, counsel for
the West Virginia Regional Jail and Correctional Facility
Authority, William E. Murray, has moved on their behalf for
dismissal. In the interests of expedience, and lacking any
objection from plaintiff as to the propriety of Mr. Murray’s
motion, he is deemed authorized to appear specially in order to
seek dismissal of the John Doe defendants.
showing . . . entitle[ment] to relief.”
Fed. R. Civ. P.
8(a)(2); Erickson v. Pardus, 551 U.S. 89, 93 (2007).
12(b)(6) correspondingly permits a defendant to challenge a
complaint when it “fail[s] to state a claim upon which relief
can be granted . . . .”
Fed. R. Civ. P. 12(b)(6).
“short and plain statement” must provide “‘fair notice of what
the . . . claim is and the grounds upon which it rests.’”
Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007)(quoting
Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled on other
grounds, Twombly, 550 U.S. at 563).
In order to survive a
motion to dismiss, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570).
“‘naked assertions’ devoid of ‘further factual enhancement’”
will not satisfy this standard.
The Federal Rules of Civil Procedure do not explicitly
provide for the filing of a complaint against an unknown John
Rule 10(a) directs that pleadings must “name all
the parties” and Rule 4(a)(1) requires that a summons “name...
all the parties” and “be directed to the defendant,” but neither
provides any guidance on what is permissible when the identity
of an opposing party is unknown.
Fed. R. Civ. P. 10(a); Fed. R.
Civ. P. 4(a)(1).
Though the use of a John Doe designation is
generally disfavored in the federal courts, there are
circumstances in which its use remains permissible.
Wright & Miller, Federal Practice and Procedure § 1659
(discussing disfavored status of John Doe defendants), see e.g.,
Colle v. Brazos County, Tex., 981 F.2d 237, 243 n. 20 (5th
Cir.1993), Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir.
1980); but cf Wudtke v. Davel, 128 F.3d 1057, 1060 (7th
The United States Court of Appeals for the Fourth Circuit
has held, in pre-Twombley cases, that plaintiffs may, in some
instances, file suit against John Doe defendants.
Kennedy, 691 F.2d 196 (4th Cir. 1982). 3
See Schiff v.
Other federal courts
have continued to acknowledge the viability of naming John Doe
defendants, even after Twombley.
See e.g., Crowley v.
Bannister, 734 F.3d 967, 978 (9th Cir. 2013)(“ If the identity of
any defendant is unknown, ‘the plaintiff should be given an
The disfavor is most commonly expressed when a John Doe
designation is used in a case in federal court on diversity
grounds, wherein the unknown citizenship of the John Doe could
potentially divest the court of subject matter jurisdiction. See
13 Wright & Miller Federal Practice and Procedure § 3642 (“The
practice of naming John Doe defendants . . . has created some
subject matter jurisdiction problems for the federal courts in
states permitting the procedure” and “the John Doe device is
disfavored by many federal courts”).
See also Chidi Njoku v. Unknown Special Unit Staff, 217 F.3d 840
(4th Cir. 2000)(unpublished)
opportunity through discovery to identify the unknown
defendants’”)(quoting Gillespie, 629 F.2d at 642); Blakeslee v.
Clinton Cnty., 336 F. App'x 248, 250 (3d Cir. 2009)(“ Use of John
Doe defendants is permissible in certain situations until
reasonable discovery permits the true defendants to be
The Fourth Circuit has emphasized that the proper use of a
John Doe designation is as a placeholder in situations where the
“true identity of an unnamed party can be discovered through
discovery or through intervention by the court.”
F.2d at 198, accord Green v. Doe, 260 F. App'x 717, 719 (5th
Cir. 2007)(“Although the use of a ‘John Doe’ is disfavored, it
serves the legitimate function of giving a plaintiff the
opportunity to identify, through discovery, unknown
defendants.”), Estate of Rosenberg by Rosenberg v. Crandell, 56
F.3d 35, 37 (8th Cir. 1995)(explaining that while it is
generally impermissible to name a fictitious party as a
defendant, “an action may proceed against a party whose name is
unknown if the complaint makes allegations specific enough to
permit the identity of the party to be ascertained after
reasonable discovery”), see also Butchard v. Cnty of Dona Ana,
287 F.R.D. 666, 671 (D.N.M. 2012)(“The purpose of a Doe defendant
is to serve as a place holder when the identity of [a]
particular defendant is unknown”).
As such, John Doe suits are
only permissible against “real, but [at the time of filing]
Schiff, 691 F.2d at 197.
In her complaint, plaintiff identified the John Doe
[I]nter alia, unknown [prison] staff, who negligently
hired, negligently retained, negligently failed to
properly supervise . . . and negligently failed to
intervene and protect Plaintiff from the harm suffered
by her at the hands of [the other named defendants].
Defendant Doe includes any person who concealed the
actions of [the other named defendants] or facilitated
their wrongful and actionable acts or engaged in
retaliation against the Plaintiff.
(Plaintiff’s compl. ¶ 6).
Plaintiff’s description of the John Doe defendant(s) is
broad and lacking in particulars.
It is primarily composed of
“naked assertions” of wrongdoing that might or might not
ultimately be possible to connect to a particular individual
employed or supervised by one of the named defendants.
breadth of plaintiff’s designation, which includes any person
who concealed or facilitated the wrongful acts of the named
defendants, and the lack of specific facts or allegations that
could be tied, upon discovery, to a specific individual, reveals
that plaintiff has not used the John Doe designation as a
Rather, plaintiff has employed the John Doe
designation as a catch-all provision, designed to encompass any
individual with a potential connection to the harms suffered she
It is pleadings of this nature that the Supreme Court
intended to eliminate when it announced Twombley and Iqbal.
the Court explained in Iqbal, while complaints need not contain
“detailed factual allegations” they must include “more than an
unadorned, ‘the defendant-unlawfully-harmed-me’ accusation.”
Iqbal, 556 U.S. at 677.
Here, the plaintiff has essentially
pled that someone employed or supervised by a named defendant
may have unlawfully harmed her, without providing any specific
information that could be used to identify the person or persons
who actually caused the harm.
In her response, plaintiff acknowledges that she has not
yet identified any John Doe defendant(s), but asks the court to
hold its ruling in abeyance until the completion of discovery.
This argument would have merit if plaintiff’s use of the John
Doe designation was proper, that is, if plaintiff knew a
particular individual had committed a wrong, lacked only the
actual identity of that individual, and was using the discovery
process to ascertain that individual’s identity.
It is worth
noting that discovery has been underway in this action for at
least four months.
When a John Doe designation is a
placeholder, prompt action can be taken by discovery to seek the
identity of an unknown party.
may be sufficient.
Indeed, a single interrogatory
Yet plaintiff has not brought to the court’s
attention any discovery action seeking the identity of a John
Her failure to act diligently lends support to
the conclusion that the plaintiff has not used the John Doe
designation as a placeholder.
See Valade v. City of New York,
949 F. Supp. 2d 519, 531 (S.D.N.Y. 2013)( “Where a plaintiff ‘has
had ample time to identify’ a Doe defendant but gives ‘no
indication that he has made any effort to discover the
[defendant's] name,’ the plaintiff ‘simply cannot continue to
maintain a suit against’ the John Doe defendant.”)(internal
Accordingly, it is ORDERED that the motion to dismiss be,
and hereby is, granted.
It is further ORDERED that the John Doe
defendant(s) be, and hereby are, dismissed from this action.
The Clerk is directed to forward copies of this order
to all counsel of record and any unrepresented parties.
September 15, 2014
John T. Copenhaver, Jr.
United States District Judge
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