Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-21-2001

Singletary v. PA Dept Corrections
Precedential or Non-Precedential:

Docket 00-3579




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Filed September 21, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 00-3579

DOROTHY SINGLETARY, individually, and as
Administrator of the Estate of Edward Singletary

v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
S.C.I. ROCKVIEW INSTITUTION; JOSEPH
MAZURKIEWICZ, Superintendent of Rockview;
SEVERAL UNKNOWN CORRECTIONS OFFICERS

Dorothy Singletary, Appellant

On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 99-cv-00255)
District Judge: Honorable Malcolm Muir

Argued April 16, 2001

Before: BECKER, Chief Judge, McKEE, Circuit Judges,
and POLLAK, District Judge.*

(Filed: September 21, 2001)



_________________________________________________________________
* Honorable Louis H. Pollak, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       WAYNE A. RODNEY, ESQUIRE
        (ARGUED)
       Rodney & Associates
       1616 Walnut Street
       Suite 2000
       Philadelphia, PA 19103

       Counsel for Appellant

       D. MICHAEL FISHER, ESQUIRE
       Attorney General
       GREGORY R. NEUHAUSER,
        ESQUIRE (ARGUED)
       Senior Deputy Attorney General
       CALVIN R. KOONS, ESQUIRE
       Senior Deputy Attorney General
       JOHN G. KNORR, III, ESQUIRE
       Chief Deputy Attorney General
       Chief, Appellate Litigation Section
       Office of Attorney General
       15th Floor Strawberry Square
       Harrisburg, PA 17120

       Counsel for Appellees

OPINION OF THE COURT

BECKER, Chief Judge.

This is an appeal from a grant of summary judgment for
defendants Pennsylvania Department of Corrections
(PADOC), State Correctional Institute at Rockview (SCI-
Rockview), and former Superintendent of SCI-Rockview,
Joseph Mazurkiewicz, in a 42 U.S.C. S 1983 civil rights
lawsuit brought against them by Dorothy Singletary, the
mother of Edward Singletary, a prisoner who committed
suicide while incarcerated at Rockview. The plaintiff does
not appeal from the grant of summary judgment for PADOC
and SCI-Rockview. She does appeal the District Court's
grant of summary judgment in favor of defendant
Mazurkiewicz, but there is plainly no merit to this challenge
for there is no evidence that Mazurkiewicz exhibited

                                  2
deliberate indifference to Edward Singletary's medical
needs.

In her original complaint, the plaintiff also included as
defendants "Unknown Corrections Officers." The only
chance for the plaintiff to prevail depends on her ability to
succeed in: (1) amending her original complaint to add as
a defendant Robert Regan, a psychologist at SCI-Rockview,
against whom the plaintiff has her only potentially viable
case; and (2) having this amended complaint relate back to
her original complaint under Federal Rule of Civil
Procedure 15(c)(3) so that she overcomes the defense of the
statute of limitations. Rule 15(c)(3) provides for the "relation
back" of amended complaints that add or change parties if
certain conditions are met, in which case the amended
complaint is treated, for statute of limitations purposes, as
if it had been filed at the time of the original complaint.

The District Court denied the plaintiff 's motion for leave
to amend because it concluded that the amended complaint
would not meet the conditions required for relation back
under 15(c)(3). Rule 15(c)(3) has two basic parts, both of
which must be met before relation back is permitted. First,
15(c)(3)(A) requires that the party that the plaintiff seeks to
add has received, within a certain time period, sufficient
notice of the institution of the action that the party is not
prejudiced. In addition to actual notice (which is not
claimed here) Rule 15(c)(3)(A) cognizes two means of
imputing the notice received by the original defendants to
the party sought to be added: (i) the existence of a shared
attorney between the original and proposed new defendant;
and (ii) an identity of interest between these two parties.
Second, 15(c)(3)(B) requires that the party sought to be
added knew or should have known that, but for a mistake,
the plaintiff would have named him in the original
complaint.

We conclude that the District Court was correct in ruling
that the amended complaint did not meet the notice
requirements of Rule 15(c)(3)(A). The plaintiff cannot avail
herself of the "shared attorney" method of imputing notice
to Regan because the defendants' attorney was not
assigned to this case until after the relevant notice period
under Rule 15(c)(3). Furthermore, the "identity of interest"

                               3
method is not open to the plaintiff because Regan was not
high enough in the administrative hierarchy of SCI-
Rockview to share sufficient interests with any of the
original defendants.

The District Court also found that the plaintiff did not
meet the requirement of Rule 15(c)(3)(B)--that Regan knew
(or should have known) that, but for a mistake, the plaintiff
would have named him in the original complaint. The
correct legal interpretation of 15(c)(3)(B) is not settled, and
it is unclear whether the plaintiff 's original complaint,
which included as defendants "Unknown Corrections
Officers," meets 15(c)(3)(B)'s mistake requirement. More
precisely, because the plaintiff simply did not know of
Regan's identity, it is an open question whether failure to
include him originally as a defendant was a "mistake"
under Rule 15(c)(3)(B). Resolution of the question whether
lack of knowledge can constitute a mistake is important in
civil rights cases. For example, a person who was subjected
to excessive force by police officers might not have seen the
officers' name tags, and hence would likely need discovery
to determine the names of his attackers, although he
cannot get discovery until he files his S 1983 complaint. If
this person were prevented from having his complaint relate
back when he sought to replace a "John Doe" or"Unknown
Police Officers" in his complaint with the real names of his
assailants, then he would have to file his complaint
substantially before the running of the statute of limitations
on his claim in order to avoid having his claim end up
being barred. This would render the S 1983 statute of
limitations much shorter for this person than it would be
for another complainant who knows his assailants' names.

Although there seems to be no good reason for the Rules
of Civil Procedure to treat two such similarly-situated
plaintiffs so differently, in most Courts of Appeals the
naming of "unknown persons" or "John Does" (the
functional pleading equivalent of "unknown persons") as
defendants in an original complaint does not meet
15(c)(3)(B)'s mistake requirement. In our one case to
consider the issue this Court implied (though we did not
squarely hold) that such "John Doe complaints"1 do meet
_________________________________________________________________

1. For simplicity's sake, for the rest of this opinion we will refer to
complaints that list as defendants "John Does," "Unknown Persons," or
their functional equivalents as "John Doe complaints."

                               4
this mistake requirement. But even if the mistake
requirement is met in this case, it is not at all clear that
Regan knew or should have known that the original
complaint would have included him since the complaint
named "Unknown Corrections Officers," and Regan is a
staff psychologist, not a corrections officer, at SCI-
Rockview.

It is clear that the plaintiff does not meet Rule
15(c)(3)(A)'s notice requirement, and hence we need not
decide the thorny issues outlined in the preceding two
paragraphs. However, because the position taken by the
other Courts of Appeals on Rule 15(c)(3)(B)'s "mistake"
requirement would seem to lead to seriously inequitable
outcomes, we suggest to the Judicial Conference Advisory
Committee on Civil Rules that it amend the language of
Rule 15(c)(3)(B) so as to clearly provide that the
requirements of that section of the Rule can be met in
situations in which the plaintiff seeks to replace a"John
Doe" or "Unknown Person" with the name of a real
defendant. As we further explain infra at note 5, such an
amendment, which is supported by the weight of scholarly
commentary, would make Rule 15(c)(3) fit more closely with
the overall tenor and policy of the Federal Rules of Civil
Procedure.

I.

Edward Singletary was serving a 6-12 year sentence at
SCI-Rockview for his conviction of rape. In November 1995,
Singletary was transferred to the maximum security
restricted housing unit (MSRHU) of SCI-Rockview as a
result of "threatening an employee or family with bodily
harm." Over the next ten months, Singletary became
increasingly agitated, acting hostilely to the staff and
accusing them of tampering with his food and mail. During
this period, Singletary was given chances to leave the
MSRHU and re-enter the general population unit of SCI-
Rockview, but he refused each time.

During his stay in the MSRHU, Singletary was seen
weekly by a counselor, monthly by a three-person Program
Review Committee, and by medical and psychological staff

                                5
as needed. A staff psychiatrist, Dr. Abdollah Nabavi,
prescribed an anti-depressant to help Singletary with his
sleeplessness and anxiety. Nabavi also offered Singletary
Trilafon, an anti-psychotic drug, because he "felt
[Singletary] was agitated, he was over suspicious, he was
just very uncomfortable in the environment. . . . I think he
was [psychotic]. If he was not, he was very close to being
psychotic." Dep. of Dr. Nabavi at 31-32. Singletary,
however, refused the Trilafon.

On October 3, 1996, Singletary became agitated when he
was told to remove some magazines that had accumulated
in his cell, and he threatened a prison officer. Because of
the threat, the next day Singletary was transferred to a cell
in the "Deputy Warden" (DW) building with the approval of
the prison Superintendent, defendant Joseph Mazurkiewicz.
After placement in a DW cell, Singletary was seen on
October 4, 1996 by Kevin Burke, a psychiatrist consultant
for SCI-Rockview, and by Robert Regan, a psychological
services staff member and the person whom Dorothy
Singletary seeks to add as a defendant. Regan was working
as a "psychological service specialist" at SCI-Rockview at
this time; his duties included the psychological testing and
assessment of inmates, parole evaluations, group therapy,
mental health intervention, and suicide risk evaluation and
prevention. Regan did not have any administrative or
supervisory duties at the prison. Beginning in late 1994,
Regan had met with and evaluated Singletary on a weekly
basis.

In their meetings with Singletary on October 4, Regan
and Burke talked separately with him to assess his mental
state. Singletary vehemently denied to both of them at that
time that he was suicidal. On the basis of these
examinations, neither Regan nor Burke saw any reason to
take further precautions for Singletary. Just after midnight
on October 6, 1996, Singletary committed suicide by
hanging himself with a bedsheet.

On October 6, 1998, Dorothy Singletary filed in the
District Court for the Eastern District of Pennsylvania a
S 1983 deliberate indifference lawsuit alleging cruel and
unusual punishment in violation of the Eighth Amendment
along with pendent state law claims for wrongful death.

                               6
Named as defendants were PADOC, SCI-Rockview,
Mazurkiewicz, and "Unknown Corrections Officers." The
action was ordered transferred to the Middle District of
Pennsylvania on January 12, 1999 to correct a venue
deficiency, and that order and the original file were officially
docketed by the Middle District on February 16, 1999. On
April 16, 1999, PADOC and SCI-Rockview moved for
judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c), and on May 28, 1999, the District Court
granted this motion in part by dismissing Singletary's
S 1983 claims against these defendants on Eleventh
Amendment grounds, but denied their motion to dismiss
the pendent state claims on sovereign immunity grounds.

The parties then conducted discovery, and on June 23,
2000, the defendants moved for summary judgment. On
July 28, 2000, about a week after filing her response to the
summary judgment motion, the plaintiff moved to amend
her complaint to add Regan as a defendant. In two orders
dated September 20, 2000, the District Court: (1) denied
the plaintiff leave to amend her complaint to add Regan as
a defendant on the grounds that that claim would be
barred by the statute of limitations because it did not meet
the conditions for relation back in Federal Rule of Civil
Procedure 15(c)(3); (2) granted summary judgment for
defendant Mazurkiewicz on the deliberate indifference claim
on the basis that the plaintiff had not presented any
evidence of what Mazurkiewicz knew or should have known
about Edward Singletary; (3) granted summary judgment
for defendants PADOC and SCI-Rockview on the plaintiff 's
pendent state law claims because they were barred by the
Eleventh Amendment; and (4) dismissed the remaining
state law claims without prejudice because there were no
federal law claims remaining in the lawsuit. This appeal
followed.

II.

We find the plaintiff 's assertion that the District Court
erred in granting summary judgment to defendant
Mazurkiewicz to be clearly lacking in merit and dispose of
it in the margin.2 We thus turn to Singletary's contention
_________________________________________________________________

2. The District Court granted summary judgment for Mazurkiewicz
because it found that the plaintiff had not presented any evidence that

                               7
that the court erred by not granting her leave to amend her
complaint to add Regan as a defendant. We review a district
court's decision granting or denying leave to amend a
_________________________________________________________________

tended to show that Mazurkiewicz had been deliberately indifferent to
Edward Singletary's medical needs as that concept has been developed
in Supreme Court and Third Circuit case law. Summary judgment is
proper if there is no genuine issue of material fact and if, viewing the
facts in the light most favorable to the non-moving party, the moving
party is entitled to judgment as a matter of law. See Fed. R. Civ. P.
56(c);
Celotex Corp. v. Catrett, 

(1986). Although the initial burden
is on the summary judgment movant to show the absence of a genuine
issue of material fact, "the burden on the moving party may be
discharged by `showing'--that is, pointing out to the district court--that
there is an absence of evidence to support the nonmoving party's case"
when the nonmoving party bears the ultimate burden of proof. 

.

The general standard for a S 1983 deliberate indifference claim made
against a prison official is set forth in Farmer v. Brennan, 

(1994), which focuses on what the official actually knew: "a prison
official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows
of and disregards an excessive risk to inmate health or safety." 

In the context of a deliberate indifference claim based on failure to
provide adequate medical treatment, "[i]t is well-settled that claims of
negligence or medical malpractice, without some more culpable state of
mind, do not constitute `deliberate indifference.' " Rouse v. Plantier,

, 197 (3d Cir. 1999).

The plaintiff 's basic argument on deliberate indifference is that
Mazurkiewicz authorized Edward Singletary's transfer to a disciplinary
cell instead of a medical facility with deliberate indifference to his
medical/psychological needs. The only evidence the plaintiff presents in
support of this is a report by Faith Liebman, a"Forensic Sexologist and
Criminologist," which states that Edward Singletary was exhibiting
various suicidal symptoms and then conclusorily opines that "the
Department of Corrections exhibited a deliberate indifference to the
needs of Mr. Singletary by ignoring these symptoms." Nowhere does the
report address what Mazurkiewicz knew or must have known, and the
plaintiff 's brief does not address this either.

The plaintiff would have the burden of proving at trial that
Mazurkiewicz was deliberately indifferent to the excessive risk to her
son,
which, as Farmer instructs us, would involve showing that Mazurkiewicz
knew or was aware of that risk. The defendants contend that the record

                               8
complaint for abuse of discretion. See Urrutia v. Harrisburg
County Police Dept., 

, 457 (3d Cir. 1996).
However, if we are reviewing the factual conclusions that a
district court made while considering the Rule 15 motion,
our standard of review is clear error. See Varlack v. SWC
Caribbean, Inc., 

, 174 (3d Cir. 1977).
Furthermore, if the district court's decision regarding a
Rule 15(c) motion was based on the court's interpretation of
the Federal Rules of Civil Procedure, our review is plenary.
See Lundy v. Adamar of New Jersey, Inc., 

,
1177 (3d Cir. 1994).

A. Rule 15(c)(3)

The parties agree that the statute of limitations for this
action is two years, which expired on October 6, 1998, the
day that Singletary filed her original complaint. The plaintiff
then moved to amend her complaint by adding Regan as a
defendant on July 28, 2000, almost two years after the
statute of limitations had run. The plaintiff argues that this
proposed amendment did not violate the statute of
limitations because the amendment would relate back to
the original, timely filed complaint under Federal Rule of
Civil Procedure 15(c)(3). Rule 15(c) can ameliorate the
running of the statute of limitations on a claim by making
the amended claim relate back to the original, timely filed
complaint. See Nelson v. County of Allegheny, 

, 1015 (3d Cir. 1995). Rule 15(c) provides:

       (c) Relation Back of Amendments. An amendment of a
       pleading relates back to the date of the original
       pleading when
_________________________________________________________________

is lacking any evidence to support that claim, and in fact, the plaintiff
does not dispute that contention. Instead, she argues that the burden is
on the defendants to show the lack of a genuine issue of material fact as
to Mazurkiewicz's deliberate indifference. This assertion, however, is
clearly contrary to the Supreme Court jurisprudence on summary
judgment as we outlined above; in order to survive a summary judgment
motion in which the movant argues that there is an absence of evidence
to support her case, the plaintiff must point to some evidence beyond her
raw claim that Mazurkiewicz was deliberately indifferent. See 

. Because she failed to do that, the District Court was
correct to grant summary judgment for Mazurkiewicz.

                               9
       (1) relation back is permitted by the law that
       provides the statute of limitations applicable to
       the action, or

       (2) the claim or defense asserted in the amended
       pleading arose out of the conduct, transaction,
       or occurrence set forth or attempted to be set
       forth in the original pleading, or

       (3) the amendment changes the party or the
       naming of the party against whom a claim is
       asserted if the foregoing provision (2) is satisfied
       and, within the period provided by Rule 4(m) for
       service of the summons and complaint, the
       party to be brought in by amendment (A) has
       received such notice of the institution of the
       action that the party will not be prejudiced in
       maintaining a defense on the merits, and (B)
       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.

Fed. R. Civ. P. 15(c).

The issue in the case is whether the plaintiff can use
15(c)(3) to have her amended complaint substituting Regan
as a defendant in place of "Unknown Corrections Officers"
relate back to her original complaint. The Rule is written in
the conjunctive, and courts interpret 15(c)(3) as imposing
three conditions, all of which must be met for a successful
relation back of an amended complaint that seeks to
substitute newly named defendants. See Urrutia , 91 F.3d at
457. The parties do not dispute that the first condition--
that the claim against the newly named defendants must
have arisen "out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
pleading"--is met. The second and third conditions are set
out in 15(c)(3)(A) & (B), respectively, and must be met
"within the period provided by Rule 4(m) for service of the
summons and complaint," Fed. R. Civ. P. 15(c)(3), which is
"120 days after the filing of the complaint," Fed. R. Civ. P.
4(m). The second condition is that the newly named party
must have "received such notice of the institution of the

                               10
action [within the 120 day period] that the party will not be
prejudiced in maintaining a defense on the merits." Fed. R.
Civ. P. 15(c)(3)(A). Urrutia states that this condition "has
two requirements, notice and the absence of prejudice, each
of which must be 

. The third
condition is that the newly named party must have known,
or should have known, (again, within the 120 day period)
that "but for a mistake" made by the plaintiff concerning
the newly named party's identity, "the action would have
been brought against" the newly named party in the first
place. Fed. R. Civ. P. 15(c)(3)(B).

Under these facts, we are concerned with three issues: (1)
did Regan receive notice of the institution of the action
before February 3, 2000 (which is 120 days after the
complaint was filed); (2) was the notice that Regan received
sufficient that he was not prejudiced in maintaining his
defense; and (3) did Regan know (or should he have known)
by February 3, 2000 that but for a mistake Singletary
would have named him as a party in the original
complaint? As explained above, the answers to all of these
questions must be "Yes" for Singletary to prevail on her
Rule 15(c)(3) argument. The District Court concluded that
Regan did not receive any notice of the litigation or of his
role in that litigation during the 120 day period. The court
also concluded that Regan would be unfairly prejudiced by
having to mount his defense at this late date, and that he
neither knew nor should have known that, but for a
mistake, he would have been named in the original
complaint.

Notice is the main issue, and we will address that first.
For reasons that we set forth in the margin, the unfair
prejudice issue is closely dependent on the outcome of our
notice inquiry; because we agree with the District Court
that Regan did not receive notice within the 120 day period
(and because the District Court based its decision on notice
and mentioned prejudice only in passing), we will not
address prejudice.3
_________________________________________________________________

3. Prejudice and notice are closely intertwined in the context of Rule
15(c)(3), as the amount of prejudice a defendant suffers under 15(c)(3) is
a direct effect of the type of notice he receives. See 6A Charles A.
Wright

                               11
B. Notice

This court has seldom spoken on the meaning of "notice"
in the context of Rule 15(c)(3). Still, we can glean some
_________________________________________________________________

et al., Federal Practice And Procedure S 1498, at 123 (2d ed. 1990) ("A
finding that notice, although informal, is sufficient . . . frequently
[depends] upon determining whether the party to be added would be
prejudiced by allowing relation back under the circumstances of the
particular case."). That is, once it is established that the newly named
defendant received some sort of notice within the relevant time period,
the issue becomes whether that notice was sufficient to allay any
prejudice the defendant might have suffered by not being named in the
original complaint.

If the newly named defendant received no notice, then it would appear
unlikely that such non-notice was sufficient to allay the prejudice. We
recognize that it is at least arguable that it is conceptually possible
for
a newly named defendant to have received no notice and yet not be
prejudiced. But, since Rule 15(c)(3) does not appear to contemplate such
a scenario, we will not undertake to express an opinion on that question.

If Regan had received notice of the institution of this action within the
120 day period, his failure to prepare a defense could be construed as
"careless or myopic," so he would not be legitimately prejudiced because
his "alleged prejudice results from his own superficial investigatory
practices or poor preparation of a defense." 

at 126. The
District Court, however, based its prejudice analysis on the premise that
Regan received no such notice:

       Singletary seeks $10,000,000 in various damages from the
       Defendants. The underlying events occurred more than 4 years ago
       and the trial is scheduled to commence in a very short time.
       Subjecting Regan to such potential liability for the first time at
this
       late date on the eve of trial and requiring him to"set about
       assembling evidence and constructing a defense when the case is
       already stale," 

, would unfairly prejudice
       him.

Dist. Ct. Order #1, Sept. 20, 2000, at 11-12. Of course, if Regan had
received notice earlier, he could have prepared his defense when the case
was not so stale. We agree with the District Court that Regan did not
receive any notice within the requisite time period, and we also agree
that Regan would suffer prejudice by being forced to prepare his defense
at this point. We have noted above that, arguably, a non-notice non-
prejudice scenario is a conceptual possibility; but this case does not
present such a situation.

                               12
general instruction from the few cases that address the
issue. First, Rule 15(c)(3) notice does not require actual
service of process on the party sought to be added; notice
may be deemed to have occurred when a party who has
some reason to expect his potential involvement as a
defendant hears of the commencement of litigation through
some informal means. See Varlack v. SWC Caribbean, Inc.,

, 175 (3d Cir. 1977) (holding that a person
who the plaintiff sought to add as a defendant had
adequate notice under 15(c)(3) when, within the relevant
period, the person by happenstance saw a copy of the
complaint naming both the place where he worked and an
"unknown employee" as a defendant, which he knew
referred to him); see also Berndt v. Tennessee , 

, 884 (6th Cir. 1986) (notice need not be formal); Eakins
v. Reed, 

, 187-88 (4th Cir. 1983) (same); Kirk
v. Cronvich, 

, 407-08 (5th Cir. 1980) (same).
At the same time, the notice received must be more than
notice of the event that gave rise to the cause of action; it
must be notice that the plaintiff has instituted the action.
See Bechtel v. Robinson, 

, 652 n.12 (3d Cir.
1989).

The plaintiff does not argue that Regan received formal or
even actual notice within the 120 day period; instead, she
contends that Regan received "constructive or implied
notice" of the institution of the action. She cites to several
district court cases within this Circuit for the proposition
that "notice concerning the institution of an action may be
actual, constructive, or imputed." 

v. Doe,

at *4 (E.D. Pa. July 22, 1994); Heinly v.
Queen, 

, 107 (E.D. Pa. 1993); Kinnally v.
Bell of Pennsylvania, 

, 1141 (E.D.
Pa.1990)). The plaintiff then advances two methods of
imputing notice to Regan that she argues are implicated
here: (1) the shared attorney method (Regan received timely
notice because he shared his attorney with SCI-Rockview,
an originally named party); and (2) the identity of interest
method (Regan received timely notice because he had an
identity of interest with SCI-Rockview). The central question
before us is whether the facts of this case support the
application of one or the other of these forms of notice.

                               13
1. Notice via Sharing an Attorney with an Original
       Defendant

The "shared attorney" method of imputing Rule 15(c)(3)
notice is based on the notion that, when an originally
named party and the party who is sought to be added are
represented by the same attorney, the attorney is likely to
have communicated to the latter party that he may very
well be joined in the action. This method has been accepted
by other Courts of Appeals and by district courts within
this Circuit. See Gleason v. McBride, 

, 693 (2d
Cir. 1989); Barkins v. Int'l Inns, Inc., 

, 907
(5th Cir. 1987); Berndt v. State of Tennessee , 

,
884 (6th Cir. 1986); 

; 

. We endorse this method of imputing
notice under Rule 15(c)(3).

The relevant inquiry under this method is whether notice
of the institution of this action can be imputed to Regan
within the relevant 120 day period, i.e., by February 3,
1999, by virtue of representation Regan shared with a
defendant originally named in the lawsuit. The plaintiff
contends that Regan shared an attorney with all of the
originally named defendants; more precisely, she submits
that appellees' attorney, Deputy (State) Attorney General
Gregory R. Neuhauser, entered an appearance as "Counsel
for Defendants" in the original lawsuit, and hence that
Neuhauser represented the "several Unknown Corrections
Officers" defendants, one of whom turned out to be Regan.
The plaintiff submits that Neuhauser's investigation for this
lawsuit must have included interviewing Regan (as he was
one of the last counselors to evaluate Edward Singletary's
mental state), so that Regan would have gotten notice of the
institution of the lawsuit at that time.

The plaintiff notes further that Neuhauser responded to
all of the allegations in the complaint including those
governing the unknown corrections officers; that Neuhauser
defended at Regan's deposition; and that nothing in
Neuhauser's Answer to the Complaint was inconsistent
with jointly representing employees like Regan. The
defendants counter that, even if Regan were made a
defendant in this suit, Regan would not have to accept
Neuhauser as his counsel: Pennsylvania law specifically

                                14
allows state employees to engage their own counsel when
sued for actions taken in the course of their employment.
See 4 Pa. Code S 39.13(a)(3) (2001).

The plaintiff 's contentions raise an interesting issue:
whether an attorney's original entry of appearance as
"Counsel for Defendants" can be used to establish, at the
time of that appearance, a sufficient relationship for Rule
15(c)(3) notice purposes with a party who is later
substituted as a defendant for a "John Doe" (or its
functional equivalent) named in the original complaint.
Because we are concerned with the notice that the newly
named defendant received, the fundamental issue here is
whether the attorney's later relationship with the newly
named defendant gives rise to the inference that the
attorney, within the 120 day period, had some
communication or relationship with, and thus gave notice
of the action to, the newly named defendant.

In this case, however, the record is clear that Neuhauser
did not become the attorney for the defendants until well
after the relevant 120 day period had run. The plaintiff
originally filed this action in the Eastern District of
Pennsylvania on October 6, 1998. The action was then
transferred to the Middle District of Pennsylvania; the order
directing the clerk to transfer the case was entered on
January 12, 1999, and that order and the original file were
docketed by the Middle District on February 16, 1999.
Neuhauser was substituted as counsel for the defendants
on February 24, 1999, replacing John O.J. Shellenberger.
The relevant 120 day period ended on February 3, 1999, so
any representation and investigation (and contact with
Regan) by Neuhauser did not begin until at least three
weeks after the 120 day period ended.

Therefore, even if we were to conclude that Neuhauser in
some sense represented and thereby gave notice to Regan
before Regan was sought to be named as a defendant, this
does not help the plaintiff because Neuhauser's
representation of the defendants commenced after the 120
day period. Furthermore, the plaintiff has not made a
"shared attorney" argument regarding the original attorney
Shellenberger (the defendants' attorney of record during the
120 day period), but even if she did, Shellenberger has not

                               15
represented, and will never represent, Regan at any point in
this action. Because this case was quickly transferred to
the Middle District, the record does not support the
inference that any investigation of the case was performed
that would have given Regan notice within the 120 days;
that is, there is no evidence in the record that
Shellenberger contacted Regan about this case or had any
relationship with Regan at all. For these reasons, we reject
the plaintiff 's argument that Regan obtained sufficient Rule
15(c)(3) notice via the "shared attorney" method of imputing
notice.

2. Notice via an Identity of Interest with an Originally
       named Defendant

The "identity of interest" method of imputing Rule 15(c)(3)
notice to a newly named party is closely related to the
shared attorney method. Identity of interest is explained by
one commentator as follows: "Identity of interest generally
means that the parties are so closely related in their
business operations or other activities that the institution
of an action against one serves to provide notice of the
litigation to the other." 6A Charles A. Wright et al., Federal
Practice And Procedure S 1499, at 146 (2d ed. 1990). One
could view the shared attorney method as simply a special
case of, or as providing evidence for, the identity of interest
method, in that sharing an attorney with an originally
named party demonstrates that you share an identity of
interest with that party. See, e.g., Jacobsen v. Osborne, 

, 320 (5th Cir. 1998) (using the fact that the
parties shared an attorney as evidence that the identity of
interest test was met). But cf. 3 James Wm. Moore, Moore's
Federal Practice S 15.19[3][c], at 15-88 to 15-89 (3d ed.
2001) ("Legal counsel shared by the original and new
defendants is not sufficient to establish an identity of
interest." (citing In re Integrated Res. Real Estate Ltd. P'ship
Sec. Litig., 

, 645 (S.D.N.Y. 1993))).
However, because the parties and various district court
cases within this Circuit treat identity of interest and
shared attorney as separate methods of imputing Rule
15(c)(3) notice, we will do likewise. See, e.g. , Keitt v. Doe,

(E.D. Pa. July 22, 1994).

                               16
In Schiavone v. Fortune, 

(1986), the Supreme
Court seemingly endorsed the identity of interest method of
imputing notice for Rule 15(c)(3): "Timely filing of a
complaint, and notice within the limitations period to the
party named in the complaint, permit imputation of notice
to a subsequently named and sufficiently related party." 

District courts within this Circuit have interpreted
this passage to mean that the Supreme Court has accepted
the identity of interest notice method, see, e.g., Keitt 

at *4, and we find this reading of Schiavone
plausible. At all events, we adopt it as a logical construction
of the Rule. Thus, the relevant issue is whether Regan has
a sufficient identity of interest with an originally named
defendant to impute the notice that defendant received to
Regan.

The plaintiff does not substantially develop her identity of
interest argument (she concentrates mainly on the shared
attorney method of imputing notice), but she does advance
the argument that Regan shared an identity of interest with
SCI-Rockview because he was employed by SCI-Rockview.
The question before us is therefore whether an employee in
Regan's position (staff psychologist) is so closely related to
his employer for the purposes of this type of litigation that
these two parties have a sufficient identity of interest so
that the institution of litigation against the employer serves
to provide notice of the litigation to the employee. See 6A
Wright et al., supra, S 1499 at 146.

There is not a clear answer to this question in the case
law. The parties do not cite, and we have not found, any
Third Circuit case that addresses this issue. We have
found, however, two cases from other Circuits and one
district court case from within this Circuit that shed some
light on this topic. In Ayala Serrano v. Lebron Gonzalez,

(1st Cir. 1990), the plaintiff, a prisoner in
Puerto Rico, brought a S 1983 lawsuit alleging that a prison
guard violated his civil rights by standing idly by as the
plaintiff was stabbed seven times by other inmates in the
Intensive Treatment Unit of the prison. The original
complaint was filed pro se, and named as defendants the
superintendent of the prison and the head administrator of
the Puerto Rican prison system. The District Court allowed

                               17
the plaintiff 's amended complaint, which added the prison
guard as a defendant, to relate back to the original
complaint under Rule 15(c)(3), on the grounds that the
identity of interest that the prison guard shared with the
prison officials named in the original complaint meant that
the notice given to the latter could be imputed to the
former.

The First Circuit held that the district court did not err
in imputing notice to the prison guard based on the identity
of interest he shared with the originally named prison
officials. In finding this identity of interest, the Court of
Appeals focused on the facts that the originally named
defendants were the prison guard's superiors, the prison
guard was present at the attack, and the guard continued
to work in the Intensive Treatment Unit where the plaintiff
remained as an inmate, subject to special protective
measures (so the guard and the prisoner would likely have
had further contact). Under these facts, the court held that
"it is entirely reasonable to assume that [the prison guard]
was notified or knew of the lawsuit commenced by[the
prisoner] as a result of the assault." Id . at 13.

In Jacobsen v. Osborne, 

(5th Cir. 1998), the
plaintiff brought a S 1983 action against a named officer
(Osborne) and several unnamed officers, along with state
tort claims against the City of New Orleans and the Sheriff.
The plaintiff sought to have his amended complaint
replacing Osborne with the previously unnamed other
officers relate back under Rule 15(c)(3). The Fifth Circuit
held that the newly named defendants received constructive
notice because there was a sufficient identity of interest
between the newly named officers, Officer Osborne, and the
City to infer notice. The court based this conclusion on the
fact that "the City Attorney, who represented the original
City defendants (the City and Officer Osborne) . . . would
necessarily have represented the newly-named officers. The
City Attorney answered the complaint on behalf of the City
and Officer Osborne and, to do so, presumably investigated
the allegations, thus giving the newly-named officers the
[Rule 15(c)(3)] notice of the action." 

In Keitt, 

, the district court found that
police officers employed by Amtrak did not have a sufficient

                               18
identity of interest with Amtrak for 15(c)(3) imputed notice
purposes. The court stated that "[n]on-management
employees, such as the officers herein, do not bear a
sufficient nexus with their employer to permit a conclusion
that they share an identity of interest in the litigation so as
to permit the presumption that they received notice that
they would be sued simply because their employer had
timely notice." 

(citing Perri v. Daggy, 

(N.D. Ind. 1991)).

These cases demonstrate that this issue is a close one in
this case. We believe, however, that Regan does not share
sufficient identity of interest with SCI-Rockview so that
notice given to SCI-Rockview can be imputed to Regan for
Rule 15(c)(3) purposes. Regan was a staff level employee at
SCI-Rockview with no administrative or supervisory duties
at the prison. Thus, Regan's position at SCI-Rockview
cannot alone serve as a basis for finding an identity of
interest, because Regan was clearly not highly enough
placed in the prison hierarchy for us to conclude that his
interests as an employee are identical to the prison's
interests. That is, Regan and SCI-Rockview are not"so
closely related in their business operations or other
activities that the institution of an action against one serves
to provide notice of the litigation to the other." 6A Wright et
al., supra, S 1499, at 146.

Furthermore, the circumstances present in Ayala Serrano
and Jacobsen that were the bases for the findings of
identity of interest in those cases are not present in this
case. In Ayala Serrano, the prison guard's continued close
contact with the plaintiff led the court to conclude that the
guard likely had notice of the instigation of the lawsuit.
Here, Regan did not have such continuing contact with the
plaintiff, so there is no similar basis for concluding that he
would have received such notice. In Jacobsen, the key fact
for the court was that the same City Attorney would likely
have interviewed the newly named defendants soon after
the lawsuit was filed, thus giving these defendants
sufficient notice of the lawsuit within the relevant 120 day
period. As we noted in the previous section, however, this
case was originally filed in the Eastern District of
Pennsylvania with a different attorney representing the

                               19
defendants, and it was only after the case was transferred
to the Middle District that attorney Neuhauser began his
representation of the defendants and investigation of the
case--well after the 120 day period had expired. Because
there is no evidence or any reason to believe that the
previous attorney for the defendants represented or even
contacted Regan, the basis for finding sufficient notice that
existed in Jacobsen is not present here.

Thus, we find ourselves in agreement with Keitt that,
absent other circumstances that permit the inference that
notice was actually received, a non-management employee
like Regan does not share a sufficient nexus of interests
with his or her employer so that notice given to the
employer can be imputed to the employee for Rule 15(c)(3)
purposes. For this reason, we reject the plaintiff 's identity
of interest argument, and conclude that the District Court
did not err in denying the plaintiff leave to amend her
complaint to add Regan as a defendant.

C. But for a Mistake Concerning the Identity of the
Proper Party

Rule 15(c)(3)(B) provides a further requirement for
relating back an amended complaint that adds or changes
a party: the newly added 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 the
party." Fed. R. Civ. P. 15(c)(3)(B). The plaintiff argues that
this condition is met in her proposed amended complaint,
but the District Court found otherwise. The defendants also
contend that (1) the plaintiff did not make a mistake as to
Regan's identity, and (2) Regan did not know, nor should he
have known, that the action would have been brought
against him had his identity been known, because the
original complaint named "Unknown Corrections Officers"
and Regan is not a corrections officer but a staff
psychologist.

The   issue whether the requirements of Rule 15(c)(3)(B)
are   met in this case is a close one. We begin by noting that
the   bulk of authority from other Courts of Appeals takes
the   position that the amendment of a "John Doe" complaint

                                 20
--i.e., the substituting of real names for "John Does" or
"Unknown Persons" named in an original complaint--does
not meet the "but for a mistake" requirement in 15(c)(3)(B),
because not knowing the identity of a defendant is not a
mistake concerning the defendant's identity. See Wilson v.
United States, 

, 563 (1st Cir. 1994); Barrow v.
Wethersfield Police Dept., 

, 469 (2d Cir. 1995),
amended by 

(2d Cir. 1996); W. Contracting
Corp. v. Bechtel Corp., 

, 1201 (4th Cir. 1989);
Jacobsen v. Osborne, 

, 320 (5th Cir. 1998);
Cox v. Treadway, 

, 240 (6th Cir. 1996);
Worthington v. Wilson, 

, 1256 (7th Cir. 1993);
Powers v. Graff, 

, 1226-27 (11th Cir. 1998).
This is, of course, a plausible theory, but in terms of both
epistemology and semantics is subject to challenge.

In Varlack v. SWC Caribbean, Inc., 

, 175 (3d
Cir. 1977), this Court appeared to have reached the
opposite conclusion insofar as we held that the amendment
of a "John Doe" complaint met all of the conditions for Rule
15(c)(3) relation back, including the "but for a mistake"
requirement. In Varlack, the plaintiff had filed a complaint
against, inter alia, an "unknown employee" of a branch of
the Orange Julius restaurant chain, alleging that this
employee had hit him with a two-by-four in a fight, which
caused him to fall through a plate glass window, injuring
his arm so severely that it had to be amputated. After the
statute of limitations had run, the plaintiff sought to amend
his complaint to change "unknown employee" to the
employee's real name, using Rule 15(c)(3) to have the
amended complaint relate back to the original. The newly
named defendant testified that he had coincidentally seen
a copy of the complaint naming both Orange Julius and an
"unknown employee" as defendants, and that he had
known at that time that he was the "unknown employee"
referred to. This Court affirmed the district court's grant of
the 15(c)(3) motion, holding that the plaintiff met all the
requirements of 15(c)(3), including the requirement that the
newly named defendant "knew or should have known but
for a mistake concerning the identity of the proper party."
See 

We are, of course, bound by Varlack insofar as it held

                               21
that the plaintiff 's lack of knowledge of a particular
defendant's identity can be a mistake under Rule
15(c)(3)(B). See Internal Operating Procedures of the United
States Court of Appeals for the Third Circuit 9.1 (2000).4
Moreover, as is also noted above, every other Court of
Appeals that has considered this issue (specifically, the
First, Second, Fourth, Fifth, Sixth, Seventh, and Eleventh
Circuits) has come out contrary to Varlack; generally
speaking, the analysis in these other cases centers on the
linguistic argument that a lack of knowledge of a
defendant's identity is not a "mistake" concerning that
identity. However, even assuming that Varlack allows for
amended "John Doe" complaints to meet Rule 15(c)(3)(B)'s
"mistake" requirement, it is questionable whether the other
parts of 15(c)(3)(B) are met in this case, namely, whether
Regan knew or should have known that he would have
been named in the complaint if his identity were known.
Because the original complaint named "Unknown
Corrections Officers," it is surely arguable that psychologist
Regan would have no way of knowing that the plaintiff
meant to name him.

These are sticky issues. Because, as we explained above,
the plaintiff 's argument on the applicability of Rule 15(c)(3)
to her case fails on notice grounds, we do not need to
_________________________________________________________________

4. We note, however, that two district court cases from within this
Circuit have seemingly concluded that Varlack 's holding does not entail
that amended "John Doe" complaints meet Rule 15(c)(3)(B)'s "mistake"
requirement, as these cases have followed the rule of the other Circuits
in denying the relation back of amended complaints that replace "John
Doe" defendants because there was no mistake involved in the original
complaints. See Gallas v. The Supreme Court of Pennsylvania, 

, at *4 (E.D. Pa. Aug. 24, 1998); Frazier v. City of Philadelphia,

, 885 (E.D. Pa. 1996). The majority of district court
cases from within this Circuit that have considered this issue, however,
have followed the broader interpretation of Varlack and thus allowed the
relation back of amended "John Doe" complaints under Rule 15(c)(3).
See, e.g., Trant v. Towamencin Township, 

at *5-*6 (E.D.
Pa. 1999); Trautman v. Lagalski, 

, 330 (W.D. Pa.
1998); Cruz v. City of Camden, 

, 1110 n.9 (D.N.J.
1995); Advanced Power Sys., Inc. v. Hi-Tech Sys., Inc., 

, 1457 (E.D. Pa. 1992). We think this to be the better reading of
Varlack.

                               22
decide these questions here. We do, however, take this
opportunity to express in the margin our concern over the
state of the law on Rule 15(c)(3) (in particular the other
Circuits' interpretation of the "mistake" requirement) and to
recommend to the Advisory Rules Committee a modification
of Rule 15(c)(3) to bring the Rule into accord with the
weight of the commentary about it.5
_________________________________________________________________

5. As we note in the text, some Courts of Appeals have held that
proposed amended complaints that seek to replace a"John Doe" or other
placeholder name in an original complaint with a defendant's real name
do not meet Rule 15(c)(3)(B)'s "but for a mistake" requirement. We find
this conclusion to be highly problematic. It is certainly not uncommon
for victims of civil rights violations (e.g., an assault by police
officers or
prison guards) to be unaware of the identity of the person or persons
who violated those rights. This information is in the possession of the
defendants, and many plaintiffs cannot obtain this information until they
have had a chance to undergo extensive discovery following institution of
a civil action. If such plaintiffs are not allowed to relate back their
amended "John Doe" complaints, then the statute of limitations period
for these plaintiffs is effectively substantially shorter than it is for
other
plaintiffs who bring the exact same claim but who know the names of
their assailants; the former group of plaintiffs would have to bring their
lawsuits well before the end of the limitations period, immediately begin
discovery, and hope that they can determine the assailants' names
before the statute of limitations expires. There seems to be no good
reason to disadvantage plaintiffs in this way simply because, for
example, they were not able to see the name tag of the offending state
actor.

The rejoinder to this argument is that allowing the relation back of
amended "John Doe" complaints risks unfairness to defendants, who,
under the countervailing Varlack interpretation of Rule 15(c)(3)(B), may
have a lawsuit sprung upon them well after the statute of limitations
period has run. But fairness to the defendants is accommodated in the
other requirements of Rule 15(c)(3), namely the requirements that (1) the
newly named defendants had received "such notice of the institution of
the action" during the relevant time period "that the party will not be
prejudiced in maintaining a defense on the merits"; and (2) the newly
named defendants knew or should have known that the original
complaint was really directed towards them ("the action would have been
brought against the party"). These requirements generally take care of
the "springing a claim on an unsuspecting defendant" problem. Because
these other Rule 15(c)(3) requirements must be met before an amended
complaint can relate back, the "mistake" requirement of 15(c)(3), as
interpreted by the other Circuits, would be dispositive in disallowing

                               23
III. Conclusion

For the above reasons, the District Court's grant of
summary judgment for the defendants and the court's
_________________________________________________________________

relation back only when the to-be-added defendants had timely notice of
the lawsuit and knew that the lawsuit was really meant to be directed at
them. We do not think that fairness requires that a plaintiff be barred
from adding newly named parties as defendants when these newly
named parties (1) knew about the lawsuit within the relevant time
period, (2) knew they were the ones targeted, and (3) had the information
as to their correct names but withheld that information from the plaintiff
--indeed, we believe that fairness requires that a plaintiff in such a
situation should be allowed to add the newly named defendants to his
complaint.

We also note that Rule 15(c)(3)(B)'s mistake requirement has been held
to be met (and thus relation back clearly permitted) for an amended
complaint that adds or substitutes a party when a plaintiff makes a
mistake by suing the state but not individual officers in a S 1983 action.
See Lundy v. Adamar of New Jersey, Inc., 

, 1192 n.13 (3d
Cir. 1994) (Becker, J., concurring in part and dissenting in part)
(listing
cases in which plaintiffs have been permitted to have their complaints
relate back when they made mistakes in the naming of defendants in
their complaints, including naming states and state agencies instead of
state officials in S 1983 cases). We think that it makes no sense to allow
plaintiffs who commit such a clear pleading error to have their claims
relate back, while disallowing such an option for plaintiffs who, usually
through no fault of their own, do not know the names of the individuals
who violated their rights. This disparity of treatment of S 1983
plaintiffs
seems to have no principled basis and should not be codified in our
Rules of Civil Procedure.

All of the commentators who address this issue (at least those that we
found in our research) call for Rule 15(c)(3) to allow relation back in
cases in which a "John Doe" complaint is amended to substitute real
defendants' names. See Edward H. Cooper, Rule 15(c)(3) Puzzles at 3-5
(November 1999) (unpublished manuscript, on file with the
Administrative Office of the United States Courts, Rules Committee
Support Office); Carol M. Rice, Meet John Doe: It is Time for Federal
Civil
Procedure to Recognize John Doe Parties, 57 U. Pitt. L. Rev. 883, 952-53
(1996); Steven S. Sparling, Note, Relation Back of "John Doe" Complaints
in Federal Courts: What You Don't Know Can Hurt You , 19 Cardozo L.
Rev. 1235 (1997) (arguing that the structure, purpose, history and
development of Rule 15(c) all cut in favor of allowing relation back of
amended John Doe complaints).

                               24
order denying the plaintiff's motion to amend her
complaint will be affirmed. The Clerk is directed to send
copies of this opinion to the Chairman and Reporter of the
Judicial Conference Advisory Committee on Civil Rules and
the Standing Committee on Practice and Procedure, calling
attention to footnote 5.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________

In his manuscript "Rule 15(c)(3) Puzzles," Professor Edward H. Cooper
of the University of Michigan Law School suggests the following
alteration (in italics) in subsection 15(c)(3)(B) of the Rule in order to
make it clear that the relation back of "John Doe" amended complaints
is allowed: "the party to be brought in by amendment . . . knew or
should have known that, but for a mistake or lack of information
concerning the identity of the proper party . . . ." 

,
(manuscript at 8). We believe that a change in Rule 15(c)(3) along the
lines advocated by Professor Cooper would fix the lack of fairness to
plaintiffs with "John Doe" complaints that currently inheres in the other
Circuits' interpretation of the Rule, and would bring the Rule more
clearly into alignment with the liberal pleading practice policy of the
Federal Rules of Civil Procedure.

For these reasons, we encourage the Rules Advisory Committee to
amend Rule 15(c)(3) so that it clearly embraces the Cooper approach to
the relation back of "John Doe" complaints. As the Supreme Court has
said, "the requirements of the rules of procedure should be liberally
construed and . . . `mere technicalities' should not stand in the way of
consideration of a case on its merits." Torres v. Oakland Scavenger Co.,

, 316 (1988). Rule 15(c)(3) is clearly meant to further the
policy of considering claims on their merits rather than dismissing them
on technicalities, and this policy is substantially furthered by the
Cooper
approach to Rule 15(c)(3)(B).

                                25