Dixon v. Perdue et al

Filing 22

MEMORANDUM OPINION AND ORDER granting 12 MOTION by David Dixon for leave to file a second amended complaint; the Clerk is directed to file as of this date the complaint attached to the plaintiff's motion as the second amended complaint in this action. Signed by Judge John T. Copenhaver, Jr. on 11/13/2018. (cc: counsel of record; any unrepresented parties) (taq)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON
DAVID DIXON,
Plaintiff,
v.

Civil Action No. 2:18-cv-00553

R.K. PERDUE, II, S.K. NEAL,
and FAYETTE COUNTY COMMISSION,
Defendants.
MEMORANDUM OPINION AND ORDER
Pending is plaintiff David Dixon’s motion for leave to
amend his amended complaint, filed September 4, 2018.

I. Background

On April 14, 2016, police officers who were deputies
employed by the Fayette County Sheriff’s Office entered
plaintiff’s home to conduct a search for marijuana.
Compl. ¶¶ 9-10.

First Am.

The officers encountered the plaintiff and

allegedly used excessive force in restraining him, causing
lasting harm to his shoulder.

Id. ¶¶ 14, 16, 19-20.

The plaintiff was indicted with three felony counts
related to his possession of marijuana recovered during the
search.

Id. at 18.

These charges were eventually reduced to a

single misdemeanor, unidentified in the record, to which the
plaintiff pled guilty.

Id. at 20.

The plaintiff filed his original complaint on April
11, 2018, asserting 42 U.S.C. § 1983 claims under the Fourth
Amendment for excessive force against defendants Perdue, Neal
and Young and negligent training and supervision claims against
the Fayette County Commission (“Commission”).

ECF No. 1.

On

April 16, 2018, the plaintiff filed his first amended complaint
which asserts the same claims against the same defendants.
No. 3.

ECF

The defendants received notice of the lawsuit by waivers

of service which were mailed on April 16, 2018 and were executed
by defendants’ counsel on May 18, 2018.

See ECF No. 4.

On August 15, 2018, the court dismissed the claims
against C.A. Young pursuant to an agreed order filed by the
parties.

ECF No. 11.
On September 4, 2018, plaintiff has now moved to amend

his amended complaint to include S. Morris, W.R. Collison and J.
Fitzwater (“proposed defendants”) as defendants in this action.
Plaintiff states that he learned through communications with
defense counsel during their Rule 26(f) conference on September
4, 2018 that these police officers, also Fayette County deputy
sheriffs, were involved in the underlying matter.

2

Pl.’s Reply

1.

The defendant Commission filed a response in opposition to

plaintiff’s motion, to which the plaintiff has filed a reply.

II.

Governing Standard

Federal Rule of Civil Procedure 15(a)(2), invoked by
plaintiff, provides that a party who can no longer amend a
pleading as of right can still amend by obtaining “the opposing
party's written consent or the court's leave.”
15(a)(2).
requires.”

Fed. R. Civ. P.

“The court should freely give leave when justice so
Id.

In applying Rule 15(a), “[t]he law is well

settled that leave to amend a pleading should be denied only
when 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 be futile.”

Edwards v. City of Goldsboro, 178

F.3d 231, 242 (4th Cir. 1999) (quoting Johnson v. Oroweat Foods
Co., 785 F.2d 503, 509 (4th Cir. 1986)).

A proposed amendment

is futile “if . . . [it] fails to satisfy the requirements of
the federal rules,” such as Rule 12(b)(6).

United States ex

rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376
(4th Cir. 2008) (quoting United States ex rel. Fowler v.
Caremark RX, LLC, 496 F.3d 730, 740 (7th Cir. 2007)).

3

III. Discussion

The Commission asserts, without objection, that it has
standing to oppose the proposed amendment to the first amended
complaint.
3.

Commission’s Resp. Pl.’s Mot. (“Commission’s Resp.”)

The Commission has a particular interest in opposing this

amendment because it is statutorily required to indemnify and
defend the proposed defendants that the plaintiff seeks to add
to the complaint.

Id. at 3.

West Virginia Code § 29-12A-11(a)

provides that political subdivisions are required to indemnify
and defend their employees in civil actions or proceedings to
recover damages for harms caused by employees acting in good
faith and “not manifestly outside the scope of his employment or
official responsibilities.”
11(b).

See also W. Va. Code § 29-12A-

The plaintiff alleges that the proposed defendants were

acting within their scope of employment and pursuant to the
training and supervision provided by the Commission.

See

Proposed Second Am. Compl. (“Proposed Compl.”), ECF No. 12-1, ¶
34.

The Commission meets the statutory definition of a

political subdivision.

W. Va. Code § 29-12A-3(c).

Having established standing, the Commission contends
that plaintiff’s motion should be denied for futility because
the statute of limitations had expired as to the proposed
defendants.

Commission’s Resp. 4.
4

The only purported claims against the proposed
defendants are those arising under 42 U.S.C. § 1983.
Compl. ¶¶ 24-31.

Proposed

Section 1983 claims are subject to the

limitations period applied by the forum state to personal injury
actions.

Wilson v. Garcia, 471 U.S. 261, 280 (1985); see also

Owens v. Okure, 488 U.S. 235 (1989) (holding that “where a state
has one or more statutes of limitations for certain enumerated
intentional torts, and a residual statute for all other personal
injury actions . . . the residual or general personal injury
statute . . . applies” to Section 1983 claims).

In West

Virginia, Section 1983 claims are subject to the two-year period
set forth in W. Va. Code § 55-2-12.

See e.g., Sattler v.

Johnson, 857 F.2d 224, 226-27 (4th Cir. 1988); Bell ex rel. Bell
v. Bd. of Educ. of County of Fayette, 290 F. Supp. 2d 701
(S.D.W. Va. 2003).
Here, the plaintiff was injured on April 14, 2016, and
the statute of limitations expired two years later, on April 14,
2018.

The plaintiff sought to add new defendants to the action

on September 4, 2018.

The statute of limitations would bar

recovery against them in this action unless the proposed
amendment relates back to the filing date of the original
complaint.

5

Federal Rule of Civil Procedure 15(c)(1)(C) provides
that in order for an amended pleading to relate back, the
following conditions must be met:
(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 would
have been brought against it, but for a mistake
concerning the proper party’s identity.
Courts have further clarified the notice requirement in Federal
Rule of Civil Procedure 15(c)(1)(C):
Under Rule 15(c) an amendment substituting a new
defendant on a claim included or sought to be included
in the original complaint relates back if, within the
period allotted in Federal Rule of Civil Procedure
4(m) for service of process, the new defendant
“received such notice of the action that it will not
be prejudiced in defending on the merits” and also
“knew or should have known that the action would have
been brought against it.” Fed. R. Civ. P. 15(c)(1)(C);
see Joseph v. Elan Motorsports Tech. Racing Corp., 638
F.3d 555, 558–60 (7th Cir. 2011). . . . The drafter's
comments to the 1991 amendment make explicit that Rule
15(c) incorporates not only Rule 4(m)'s standard
allowance of 120 days for service of process, but also
any extension of time for good cause. See Fed. R. Civ.
P. 15(c) Advisory Comm. Notes (1991 Amendment).
Keller v. United States, 444 F. App'x 909, 911 (7th Cir. 2011);
see also, e.g., 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
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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 . . . .”); Skoczylas v. Fed. Bureau of Prisons, 961 F.2d
543, 545 (5th Cir. 1992) (“[R]elation back is allowed as long as
the added party had notice within 120 days following the filing
of the complaint, or longer if good cause is shown.”).
Here, the plaintiff filed the original complaint on
April 11, 2018.

This complaint was never served.

Plaintiff

filed his first amended complaint on April 16, 2018, and waiver
of service was mailed on the same date.

ECF No. 4.

Both the

Commission and the individually named defendants acknowledge,
through counsel, that they received the amended complaint on
April 16, 2018, well within the time allotted by Federal Rule of
Civil Procedure 4(m) for service of process of the original
complaint, which would have expired August 9, 2018.

See

Commission’s Resp., Exs. 1, 2, 3, 4.
The key inquiries are whether the service of the first
amended complaint upon the defendants led to the proposed
defendants being notified, within the Rule 4(m) period, that
they would have been included in the suit but for a mistake and
whether they will be prejudiced in defending on the merits.
Fed. R. Civ. P. 15(c)(1)(C)(i)-(ii).
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See

First, inasmuch as this action was only filed five
months before the September 4th request to file the second
amended complaint, it does not appear that the proposed
defendants would be prejudiced in defending this action on the
merits should the amendment be allowed.
Next, it is uncertain whether the proposed defendants
had notice, before the expiration of the 4(m) period on August
9, 2018, that they would have been included in the lawsuit but
for a mistake.

The fact that all the proposed and individually

named defendants are officers in the Fayette County Sheriff’s
Department and are all alleged to work at the same address,
Proposed Compl. ¶¶ 2-6, influences the court’s decision here.
Further, the plaintiff contends, based on communications with
opposing counsel during their Rule 26(f) conference, that the
proposed defendants and individually named defendants were all
involved in the same incident in which excessive force was used
against the plaintiff.
Reply 1.

Pl.’s Mot. Leave Amend Compl. 1; Pl.’s

For these reasons, the court is unable to conclude at

this early stage that the proposed defendants did not have
notice of the lawsuit before August 9, 2018.

Consequently, the

court cannot at this time find that plaintiff’s proposed
amendment would be futile based on the running of the statute of
limitations for the underlying § 1983 claim.

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Whether futility

exists may be determinable after the amendment is allowed, if
the proposed defendants then choose to file a motion to dismiss
or motion for summary judgment on statute of limitations
grounds.1

IV. Conclusion

Accordingly, it is ORDERED that plaintiff’s motion for
leave to file a second amended complaint be, and it hereby is,
granted.

The Clerk is directed to file as of this date the

complaint attached to the plaintiff’s motion as the second
amended complaint in this action.
The Clerk is directed to transmit all copies of this
written opinion and order to all counsel of record and any
unrepresented parties.
Enter: November 13, 2018

1

Should there be no evidence to indicate that the proposed
defendants were given actual notice of the lawsuit, the
plaintiff will then have the opportunity to more thoroughly
argue that notice should be imputed to them through the
“identity of interest” theory raised in plaintiff’s reply.
Pl.’s Reply 5-6 (citing Goodman v. Praxair, Inc., 494 F.3d 458
473-74 (4th Cir. 2007)).
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