OPINION AND ORDER
June 6, 1996
The principal question in this case is what effect naming a John Doe defendant has on the statute of limitations. A second question involves whether there is any evidence to show a city practice or policy that led to the use of unnecessary force. Now before me are two motions for summary judgment. For the reasons discussed below, I will grant both motions.
Anthony Frazier was shot by police on October 20, 1992. He died a few days later. His brother, Michael Frazier, acting as the administrator of Anthony's estate, brought this suit under 42 U.S.C. § 1983 for alleged constitutional deprivations resulting from the shooting.
On October 18, 1994, plaintiff filed a praecipe for a writ of summons in the Philadelphia Court of Common Pleas. He named as defendants the city, the police department, Officer John Doe # 1, and Officer John Doe # 2. Except that he was bringing suit in a representative capacity, plaintiff's praecipe for a writ of summons contained no facts from which a person could ascertain the basis of the lawsuit. The John Doe summonses were eventually returned to plaintiff with a notation indicating that the city solicitor could not accept service for the unidentified officers
On October 28, 1994, the city filed a praecipe and rule to file a complaint within twenty days or suffer judgement of non pros. Plaintiff filed a complaint in the Court of Common Pleas on February 22, 1995, approximately 17 weeks later. While the caption still named only the city, the police department, and the two John Doe defendants, Detectives Fredric McQuiggan and Paul Cassidy were referred to by name and what they allegedly did described in the body of the complaint.
On March 9, 1995, the city and the police department removed the case to this court. On May 22, 1995, I held a pre-trial conference during which the parties agreed that on or before May 26, 1995, plaintiff's counsel would send a stipulation to defendants' counsel so that the complaint could be amended to provide the names of the two officers referred to as John Doe # 1 and John Doe # 2. The legal significance of this stipulation was not an issue at the time.
Service of the summons and complaint appears to have been made on the detectives on October 6, 1995. On January 24, 1996, I denied Detectives McQuiggan's and Cassidy's motion to dismiss pursuant to Fed.R.Civ.Pro. 12(b)(5).
Detectives McQuiggan and Cassidy maintain that judgment should be entered in their favor because plaintiff's claims against them are time-barred. The city
proffers various arguments why judgment should be entered in its favor.
A. The Statute of Limitations Bars This Action Against Detectives McQuiggan and Cassidy
Plaintiff had until October 20, 1994, to commence this action.
Where a case originates in state court, as this case did, but is later removed to federal court, as this case was, the state rule controls the question of commencement. See Winkels v. George A. Hormel & Co., 874 F.2d 567, 570 (8th Cir. 1989) (removal pursuant to 28 U.S.C. §§ 1331 and 1441).
Under Pennsylvania law, filing a praecipe for a writ of summons is sufficient to commence a civil action. Pa.R.Civ.Pro. § 1007. In this case, however, the praecipe did not actually name Detectives McQuiggan and Cassidy but instead relied upon John Doe designations.
Thus, the first question is whether under Pennsylvania law, the filing of a praecipe for a writ of summons that names John Doe defendants effectively commences an action against the persons underlying the fictitious names. I conclude that it does not.
Although no Pennsylvania court has specifically addressed this question, in Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 471 A.2d 493, 501 (Pa. Super. 1984), the superior court held that an injured party must determine within the statutory period the identity of the party who caused his injuries. The Cathcart court, therefore, implicitly rejected the use of John Doe designations as a way to toll the statute of limitations. Clearly, where a plaintiff files a praecipe for a writ of summons two days before the statute of limitations is about to expire, lists some of the defendants' names as "John Doe," and does not amend the praecipe within 48 hours, he has failed timely to determine the defendants' identity. This conclusion is consistent with Marzella v. King, 256 Pa. Super. 179, 389 A.2d 659, 662 (Pa. Super. 1978), where the superior court held that a summons that fails to designate a "legal, competent entity" does not effectively commence a civil action. John Doe designations in a praecipe obviously do not designate a legal, competent entity and, therefore, such designations fail to commence an action. Therefore, I conclude that the John Doe designations in plaintiff's praecipe for a writ of summons did not effectively commence an action against Detectives McQuiggan and Cassidy and, therefore, all claims against the detectives arising out of the shooting on October 20, 1992, were time-barred as of October 20, 1994.
This conclusion does not, however, end the inquiry. Under some circumstances, a party can amend his pleading after the statute of limitations has run and the amendment will relate back in time to an earlier filing. A plaintiff who amends his complaint by adding the name of a new defendant may therefore pursue an action against a defendant provided the amendment relates back to a time before the limitations period expired. See Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977).
Although the question of commencement is determined by state law, once a case is in federal court, federal law controls whether an amendment relates back. Britt v. Arvanitis, 590 F.2d 57, 61 (3d Cir. 1978). Federal Rule of Civil Procedure 15(c) provides that an "amendment of a pleading relates back to the date of the original pleading" when each of the following conditions are met: (1) the claim arises out of the conduct set out in the original pleading; (2) the party to be brought in received such notice that it will not be prejudiced in maintaining its defense; (3) the party should have known that, but for a mistake of identity, the original action would have been brought against it; and (4) the second and third criteria are fulfilled within the period of time provided for in rule 4(m).
If Rule 15(c) applies, an amendment relates back "to the date of the original pleading." Plaintiff commenced this action by filing a praecipe for a writ of summons on October 18, 1994. He then filed a complaint on February 22, 1995. The first question to answer is whether the writ of summons or complaint was "the original pleading" within the meaning of Rule 15.
This case enjoys the dubious distinction of containing an unprecedented number of procedural anomalies. However, because state law controls the pre-removal aspects of the case, if the amendments relate back in time, they relate back to the date of the writ of summons because that was the original filing permitted under state law.
Next I must apply Rule 15(c) to determine whether the amendments relate back to the time of the writ of summons. Relation back is only proper where Rule 15(c)'s four criteria are satisfied. One of the criteria is that the party to be brought in by amendment knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. The First, Second, Fourth, Sixth, Seventh, and Tenth Circuits have held that designating a "John Doe" in an original pleading is not a "mistake concerning the identity" within the meaning of Rule 15 and, therefore, an amendment containing a party's true name cannot relate back to the original pleading which only identified the party with a fictitious name. See Wilson v. United States, 23 F.3d 559, 563 (1st Cir. 1994); Barrow v. Wethersfield Police Dept., 66 F.3d 466, 468 (2nd Cir. 1995); Western Contracting Corp. v. Bechtel Corp., 885 F.2d 1196, 1201 (4th Cir. 1989); Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996); Worthington v. Wilson, 8 F.3d 1253, 1256 (7th Cir. 1993); Watson v. Unipress, Inc., 733 F.2d 1386 (10th Cir. 1984).
In addition, relation back would not be proper here because there was no way that McQuiggan and Cassidy could have known within the relevant time period that their being brought into the suit was a distinct possibility. The summons failed to name the police officers, give any of the underlying facts, or even give the date of the shooting. Thus, this case is unlike Heinly v. Queen, 146 F.R.D. 102, 107 (E.D. Pa. 1993), where Judge Van Antwerpen found that because a deputy attorney general, who represented some police officers, had constructive knowledge from the facts in the complaint that the suit might involve other police officers, this knowledge was imputed to the other officers. Here, the city solicitor did not possess any knowledge about the individual officers that could in turn be imputed to detectives McQuiggan and Cassidy.
B. No Evidence of Custom or Practice to Trigger Municipal Liability