case at bar. Plaintiffs have sued these officers not only in their official capacities but also in their individual capacities for money damages. We find no compelling reason why we should employ here the fiction that the knowledge of counsel for the City of Philadelphia or the police commissioner constitutes knowledge on the part of the officers.
This case arises out of an arrest - often a commonplace event in the life of police officers in a large city. Like anyone else, the memory of police officers about a specific incident usually begins to fade with time, especially if it is not of special significance to them and detailed documentation is not available to refresh their recollections. In our focus on Rule 15(c), we must not forget that the statute of limitations serves the salutary purpose of preventing stale claims and requiring timely notice to defendants before distance from the event eviscerates accurate recall. The need for the protection of a statute of limitations is particularly compelling since the defendant officers are threatened with money judgments against them in their individual capacities.
In sum, the amendment as to defendants Marvin King, Janice Little, and Karen Lee does not relate back to the original complaint. There is no evidence they had formal or even informal notice of the suit as required by Rule 15(c)(3)(A), that is, within two years and four months of the June 3, 1993 incident. As far as we know, they first learned of it on April 4, 1996, two years and ten months after the event in question. Moreover, since the defendants did not have timely notice of the suit, they could not have known that "but for a mistake concerning the identity of the proper party, the action would have been brought against [them]." See Rule 15(c)(3)(B). The § 1983 claims against defendants King, Little, and Lee are therefore barred by the two year statute of limitations.
We next address whether plaintiffs have stated any federal claim against the City of Philadelphia and Police Commissioner Neal in the amended complaint served on April 4, 1996. As to them, both the original complaint and the amended complaint state only a claim for "negligent use of force." Negligence is not a basis for a claim under 42 U.S.C. § 1983. See Davidson v. Cannon, 474 U.S. 344, 88 L. Ed. 2d 677, 106 S. Ct. 668 (1986); Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986). Thus, plaintiffs have not alleged a federal claim against these two defendants.
We note that on June 7, 1996, after defendants filed their motion to dismiss the amended complaint and over three years after the arrest in issue, plaintiffs filed a second amended complaint. It alleges a federal claim against the City based on Monell v. Department of Social Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). According to this document, the City and Commissioner Neal had a policy or practice of deliberate indifference to abuses of police power. Plaintiffs, however, have not requested leave of court to file this second amended complaint as required by Rule 15(a) of the Federal Rules of Civil Procedure. It is a nullity, and the court will not consider it.
Since no federal claims remain, the court will exercise its discretion to remand this action to the Court of Common Pleas of Philadelphia County for disposition of the remaining pendant state law claims. See 28 U.S.C. § 1367.
AND NOW, this 27th day of June, 1996, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:
(1) the federal claims set forth in the amended complaint are DISMISSED as to defendants Marvin King, Janice Little, and Karen Lee on the ground that said claims are barred by the statute of limitations;
(2) the purported federal claims set forth in the amended complaint as to defendants City of Philadelphia and Police Commissioner Richard Neal are DISMISSED for failure to state a claim upon which relief can be granted; and
(3) the remaining state law claims against the defendants are REMANDED to the Court of Common Pleas of Philadelphia County, Pennsylvania.
BY THE COURT:
Harvey Bartle III, J.