The opinion of the court was delivered by: (Magistrate Judge Carlson)
On April 23, 2012, plaintiff filed a motion requesting that the court serve his amended complaint upon Marcie Boyer and Phil Richardson. (Doc. 94.) Plaintiff never filed a brief in support of this motion, and defendants did not file a response to the motion. Thereafter, plaintiff submitted letters seeking information about the status of his request to have these individuals served with the amended complaint. (Docs. 97, 98.)
As a threshold matter, we note that plaintiff identified Phil Richardson as a defendant in the amended complaint (Doc. 68), and we will direct the amended complaint be served upon this defendant.
In contrast, however, plaintiff has never identified Marcie Boyer as a defendant in any pleading filed in this action, nor has he amended his complaint to substitute Marcie Boyer for the "Jane Doe" defendant named in the pleadings. Instead, plaintiff has, for the first time, merely identified Ms. Boyer as the "Jane Doe" party in the motion to have the amended complaint served upon Ms. Boyer. (Doc. 94.)
Because plaintiff never identifies Ms. Boyer in the very pleading that he has asked the court to serve upon Ms. Boyer, we find that his service request is premature and improper. Instead, we will direct plaintiff to file a motion seeking leave to amend the complaint to substitute Ms. Boyer for Jane Doe as a defendant in this action. Because plaintiff has already amended his complaint once, and because defendants have answered the amended complaint, plaintiff must obtain leave of court to file a second amended complaint, and defendants should have an opportunity to respond to a request to amend the complaint for a second time. See Fed. R. Civ. P. 15(a)(1) and (2).
Furthermore, although we will not prejudge a motion that Ballard may file for leave to file a second amended complaint, we do note for plaintiff's benefit that his efforts to substitute Ms. Boyer as a defendant may implicate the statute of limitation applicable to his claims against this individual.
Plaintiff has brought his claims in this action pursuant to 42 U.S.C. § 1983. Claims brought pursuant to this federal statute are subject to the statute of limitations governing tort claims under applicable state law. See Wilson v. Garcia, 471 U.S. 261, 280 (1985). Pennsylvania law subjects tort claims to a two-year statute of limitations period. See 42 Pa. Cons. Stat. Ann. § 5524. In this case, plaintiff alleges that "Jane Doe" failed to treat him for alleged injuries on March 30, 2008. (Doc. 68, at 4.) Plaintiff initially commenced this action on June 29, 2010, (Doc. 2.), and he thereafter amended the complaint on December 15, 2011 (Doc. 68.). Plaintiff did not identify Ms. Boyer as the "Jane Doe" defendant in either of these pleadings, and he must now seek leave to file a second amended complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure if he wishes to add Ms. Boyer as a defendant. See Garvin v. City of Philadelphia, 354 F.3d 215, 221 (3d Cir. 2003) (replacing the name John Doe with a party's real name amounts to the changing of a party or the naming of a party under Rule 15(c)).
Although Rule 15(a) of the Federal Rules of Civil Procedure provides that "leave to amend shall be freely given when justice so requires," Fed. R. Civ. P. 15(a), because plaintiff's proposed amendment to add claims against Ms. Boyer would be filed well after the statute of limitations on his proposed claims against Ms. Boyer would have expired, he must seek leave of court to amend his complaint pursuant to Rule 15(c), which permits a plaintiff, in limited instances, to amend a complaint "as if it had been filed at the time of the original complaint." Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 189 (3d Cir. 2001).
Pursuant to its terms, Rule 15(c)(1) applies in three situations:
(1) When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
(A) the law that provides the applicable statute of limitations allows relation back;
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out -- or attempted to be set out -- in the original pleading; or
(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 ...