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May 8, 1986


The opinion of the court was delivered by: TROUTMAN


 On July 17, 1984, plaintiff David Esnouf, Sr., filed a civil rights action pursuant to 42 U.S.C. § 1983, alleging that while an inmate, he had had a serious medical need which was inadequately treated at the Delaware County Prison. On December 23, 1983, Esnouf reported to the prison infirmary, complaining of stomach pains. Despite treatment with antacids, he returned on the 24th, 25th and 26th with worsening symptoms. On December 26, 1983, plaintiff was transferred to a local hospital where he was admitted for an appendectomy. However, before that took place, his appendix burst, necessitating emergency surgery. Esnouf later developed peritonitis and gangrene.

 Named in the complaint were Joyce Ryan, the nurse in charge of the infirmary, and certain prison officials. Before service of the complaint was ordered, the Court dismissed the prison officials pursuant to 28 U.S.C. § 1915(d), but allowed the case to proceed against defendant Ryan. Unknown to the Court when that Memorandum and Order was issued was the fact that Ryan was not an employee of the prison. Instead, she was employed by Personnel Management Services, Inc., which had contracted to provide health care services at Delaware County Prison.

 Plaintiff had neither answered defendant's discovery requests nor taken any other action to pursue his case when, on July 10, 1985, he was ordered by United States Magistrate Richard A. Powers, III, to inform the Court within thirty (30) days of his intentions with respect to the case. Judge Powers further ordered that the case be dismissed for lack of prosecution if Esnouf failed to contact the Court. The Court received a letter from Esnouf, dated July 11, 1985, requesting appointment of counsel and indicating that he wished to pursue his action.

 While Esnouf's request for appointment of counsel remained under advisement, the Court was informed that he had, on his own initiative, secured the services of an attorney. Counsel entered his appearance on September 26, 1985, and subsequently filed a response to defendant's pending motion for summary judgment, as well as a motion to amend the complaint.

 In the motion to amend, counsel recognized that the statute of limitations on plaintiff's cause of action ran on December 26, 1985. Inexplicably, plaintiff's memorandum in support of his motion (Doc. #11) states that, "the Amended Complaint was time-stamped by the Clerk of Court", presumably to establish that it was timely. However, the proposed amended complaint was not so stamped until January 22, 1986, the same date on which the motion to amend was filed. By plaintiff's own admission, that was nearly a month after the statute of limitations had expired. On that basis, defendant Ryan opposes the motion to amend the complaint.

 Ryan has also renewed her motion for summary judgment, contending that as an employee of an independent contractor, she was not a state actor for purposes of a § 1983 action and is thus entitled to judgment.

 The first issue to be resolved is whether to allow plaintiff to amend the complaint. Disposition of that issue is governed by Fed. R. Civ. P. 15, which admonishes courts to grant leave to amend "freely . . . when justice so requires". Moreover, we must also take into account subsection (c) of Rule 15, which sets forth the circumstances under which an amendment "relates back to the date of the original pleading".

 Plaintiff's proposed amended complaint would supplement his original complaint in four respects: (1) By adding Personnel Management Services, Inc., Ryan's employer, as an additional party defendant; (2) By adding Delaware County Prison and the Board of Prison Supervisors *fn1" as additional defendants, based upon the allegation that a prison policy against the transfer of sick inmates to the hospital because of cost factors motivated the delay in sending Esnouf to the hospital; (3) By adding pendent state claims of negligence against defendants Ryan and Personnel Management Services, Inc.; and (4) By adding a claim for punitive damages against all defendants.

 It is obvious that the requirements of Rule 15(c) as to the relation back of amendments are fulfilled with respect to the negligence claims sought to be asserted. In order for an additional claim to relate back, it must have arisen, "out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading". Plaintiff filed the original complaint as a civil rights action against prison officials. As a pro se petitioner, he was most likely unaware of the availability of pendent claims. The gravamen of the complaint remains the same; i.e., that he received inadequate medical care and was injured thereby. See, Taliferro v. Costello, 467 F. Supp. 33 (E.D. Pa. 1979). Justice requires that the plaintiff, now represented by counsel, be given the benefit of the expertise of his attorney in setting forth all potential claims for relief. This reasoning applies with equal force to the claim for punitive damages.

 The assertion of claims against additional parties requires a somewhat different analysis. Looking first to the language of the Rule, we note that it refers to an amendment "changing the party against whom a claim is asserted". This language has been held to encompass the situation presented here, where the original defendant is retained but additional parties are also named. Id.

 In addition to the claim against the additional defendants having arisen from the same conduct or transactions, Rule 15(c) imposes two more requirements for bringing in additional defendants: (1) the party to be joined must have had notice of the institution of the action within the period prescribed by the applicable statute of limitations; and (2) the additional party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him".

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