ERIC F. MELGREN, District Judge.
Plaintiff Samuel Lee Dartez, II brings this action against multiple Kansas Highway Patrol ("KHP") officers and supervisors (collectively the "KHP Defendants") and three Riley County Police Department detectives (the "RCPD Defendants").
Plaintiff claims that on November 13, 2014, certain officers used excessive force when arresting him, that others failed to intervene to prevent the excessive force, and that he was subsequently denied necessary medical care. Plaintiff originally filed his Complaint on November 12, 2015, and included the KHP as a defendant. Because Plaintiff was a prisoner filing pro se when he filed the action, his Complaint was subject to screening pursuant to 28 U.S.C. § 1915A. On June 2, 2016, after conducting this screening process and reviewing the Complaint, Magistrate Judge Waxse dismissed Plaintiff's initial Complaint but granted Plaintiff 30 days in which to file an amended complaint naming proper defendants and setting forth sufficient facts. The Court noted that the KHP was not a proper defendant because the KHP, as an agency in the State of Kansas, was entitled to absolute immunity and was not a "person" amenable to suit under § 1983. The Court also noted that in Plaintiff's Amended Complaint, Plaintiff must assert a defendant's personal participation in the civil rights action and that Plaintiff could use fictitious names such as "John Doe" but must provide sufficient information so that each defendant could be identified for purposes of service.
On June 30, 2016, Plaintiff timely filed his Amended Complaint. In Plaintiff's Amended Complaint, he asserted multiple claims under 42 U.S.C. § 1983 against Defendants. The KHP Defendants include: Rick Peters (a KHP Special Response Team leader), Lieutenant Peter Ware (a KHP tactical team leader), and seven John Does. Plaintiff alleges that these John Does were members of the KHP's tactical team and participated in his arrest.
On August 10, 2016, after reviewing the Amended Complaint, Judge Waxse issued an order directing the clerk of the court to prepare waiver of service forms. In that same order, Judge Waxse denied without prejudice Plaintiff's motion for appointment of counsel. The next day, the clerk's office issued waivers of service.
On August 18, 2016, Plaintiff filed a Certificate of Service stating that he had delivered a First Request for Production of Documents to Defendants. In this request, he stated that he sought statements and records relating to his arrest. He also stated that he wanted any and all information on all persons involved in his arrest, including the names and contact information of the KHP tactical team members (whether listed as a John Doe in the complaint or not).
On September 13, 2016, counsel for KHP Defendants Peters and Ware entered an appearance and asked for an extension of time (which he received) to respond to Plaintiff's Amended Complaint and Plaintiff's request for production of documents. On October 11, 2016, counsel asked for an additional thirty-day extension. Judge Waxse granted this request and extended the time to respond to Plaintiff's Amended Complaint and request for production of documents to November 10, 2016.
On November 10, 2016, counsel for KHP Defendants Peters and Ware asked for a third extension of time of 11 business days, or until November 28, to respond to the Amended Complaint and requests for production. On November 28, 2016, the KHP Defendants filed a Motion to Dismiss.
On December 2, 2016, KHP Defendants Peters and Ware filed a Certificate of Service indicating that they served their response and objections to Plaintiff's discovery request. In the response to Plaintiff, Defendants indicated that they did not have any responsive documents to Plaintiff's request for production. On December 9, 2016, Judge Waxse entered an order staying the case, including discovery, until the Court ruled upon the two pending dispositive motions.
On July 19, 2017, this Court issued an Order granting in part and denying in part the KHP Defendants' Motion to Dismiss. In this Order, the Court discussed the KHP Defendants' argument that John Doe Nos. 1-7 had not been served with process and thus should be dismissed for lack of personal jurisdiction. The Court found that Plaintiff had shown good cause for his failure to timely effect service on John Doe Nos. 1-7 within 90 days of the Amended Complaint being filed. In this Order, the Court noted that Plaintiff's failure to identify or serve the John Does could be attributed to KHP Defendants' counsel's evasiveness in responding to Plaintiff's request for production in documents. The Court ordered the KHP Defendants' counsel to show cause why sanctions should not be imposed for this evasiveness. Furthermore, the Court found that Plaintiff had diligently tried to effect service and that the facts of the case amounted to mitigating circumstances. Thus, the Court granted Plaintiff an extension of time to serve John Doe Nos. 1-7. The Court further ordered KHP Defendants Peters and Ware to submit the full names and service addresses of the John Does within 30 days of the Order and failure to do so would result in a show cause hearing. Plaintiff was ordered to file a Motion for Leave to Amend his Complaint within 30 days of receiving the true identities of the John Does.
On August 2, 2017, Defendants Peters and Ware filed their response to the Court's Show Cause Order. On August 9, the KHP Defendants' filed a Motion for Reconsideration of the Court's order denying and granting their previous Motion to Dismiss. This motion is currently before the Court.
On August 10, 2017, the KHP Defendants filed a Notice of Disclosure in Compliance with Court Order and identified 34 individuals as potential John Does. On August 11, the Court appointed Plaintiff counsel. On August 18, KHP Defendants Peters and Ware each filed a Motion for Summary Judgment (Docs. 93, 96). Counsel for Plaintiff entered his appearance on this date too. On August 23, based on Defendants' Notice of Disclosure, the Court set a show cause hearing for September 5, 2017. The Court also extended Plaintiff's deadline for filing an amended complaint (and responding to the KHP Defendants' pending motions) to October 9, 2017.
The Court held a hearing on September 5, 2017. In this hearing, the Court found that the KHP Defendants' response of identifying 34 individuals as potential John Does violated the Court's previous order of identifying the officers specifically involved in Plaintiff's arrest and found counsel in contempt of court. During this hearing, the KHP Defendants' counsel identified eight individual KHP officers who were likely involved in the physical extraction of Plaintiff from his vehicle and his subsequent arrest.
On October 5, 2017, Plaintiff filed a Motion for Leave to File an Amended Complaint (Doc. 119). In this motion, Plaintiff seeks to add the true identities of John Does 1-7. Plaintiff also filed a Motion for Order Denying Defendants' Motions for Summary Judgment (pursuant to Fed. R. Civ. P. 56(d)) or in the Alternative for an Extension of Time to Respond (Doc. 129). The Court will first consider Plaintiff's Motion for Leave to Amend Complaint and Defendant KHP's Motion for Reconsideration. The Court will then address Plaintiff's Motion seeking the denial of KHP Defendants Peters and Ware's summary judgment motions.
Plaintiff seeks leave from the Court to file a Second Amended Complaint. Fed. R. Civ. P. 15(a)(1) provides that "[a] party may amend its pleading once as a matter of course" within 21 days after serving it, or within 21 days after service of a responsive pleading or a Rule 12 motion. "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave."
Rule 15 is intended "to provide litigants `the maximum opportunity for each claim to be decided on its merits rather than on procedural niceties.'"
Plaintiff does not make any substantive changes to the factual allegations in the previous complaint but seeks to substitute the actual names of eight John Doe defendants and include service of process information for those Defendants. Plaintiff is following this Court's previous order directing Plaintiff to seek leave to file an amended complaint after he obtained the information on the John Doe defendants.
The KHP Defendants oppose the filing of a Second Amended Complaint. They make a number of arguments as to the futility of the amendment including that 1) the claims against Peters and Ware are not viable,
Claims brought under 42 U.S.C. § 1983 are governed by the forum state's statute of limitations for personal injury actions.
Generally, the inclusion of a John Doe in a complaint does not stop the statute of limitations from running.
In this case, Plaintiff does not attempt to toll the limitations period statutorily because there is no basis to do so. Instead, Plaintiff proceeds under equitable tolling, the unique circumstances doctrine, and equitable estoppel.
As an initial matter, Defendants conflate the unique circumstances doctrine with the "extraordinary circumstance" inquiry under equitable tolling. These are two separate theories. To be sure, case law from Kansas only occasionally discusses equitable tolling and generally the circumstances do not warrant it.
Defendants further contend that it is questionable "whether equitable tolling based on `unique circumstances'" is a viable legal doctrine under Kansas law and Defendants state that this Court should certify the question to the Kansas Supreme Court. Defendants' contention, however, is an incorrect statement and ignores the discussion in several Kansas cases. In Mangus v. Stump, the Kansas Court of Appeals discussed the confusion surrounding the unique circumstances doctrine and whether it was still viable in some cases.
Several months after the Kansas Court of Appeals' decision in Mangus, the Kansas Supreme Court decided Board of County Commissioners of Sedgwick County v. City of Park City.
Plaintiff contends that the unique circumstances doctrine is applicable here because he was subject to a non-party's (the Court) delay. The Court agrees. Plaintiff filed suit on November 12, 2015.
On June 30, 2016, Plaintiff filed his Amended Complaint, naming Peters, Ware, and seven John Does of the KHP. The Court took until August 10, 2016 to screen the Amended Complaint and then directed the clerk of the court to prepare waiver of service forms for the named Defendants. On August 11, 2016, the waivers of service of summons were issued—42 days after the Amended Complaint was filed. In all, from the time Plaintiff initially filed his complaint until the Court directed the clerk to issue waivers of service of summons, 274 days passed. During this time, the statute of limitations continued to run and Plaintiff could do nothing with his case while waiting on the Court's screening process. Thus, the Court concludes that the unique circumstances of the case (screening the complaint for 274 days) extended the statute of limitations.
Additional circumstances, however, extend the statute of limitations even longer. On August 11, 2016, the case essentially began. On August 18, Plaintiff attempted to ascertain the identities of the John Doe Defendants when he specifically requested identification of the John Doe Defendants through discovery.
The KHP Defendants requested two more extensions of time to respond to the Amended Complaint and the discovery. The Court granted both requests. Again, as noted above, the Court should not have granted the requests for extensions of time with respect to the discovery responses (for which, again, no real justification was proffered in the requests) and these extensions of time compounded and exacerbated Plaintiff's inability to ascertain the identities of the seven John Does. Plaintiff should not be penalized by the Court erroneously extending the KHP Defendants' time to respond. Thus, the Court concludes that because the Court erroneously granted the requests for extension of time, the statute of limitations should be tolled from the date the KHP Defendants' response to the discovery requests would have been due (September 20, 2016) until when the KHP Defendants actually answered the request (December 2, 2016). This timeframe amounts to an additional 73 days of tolling.
Finally, one more period must be included. On December 9, 2016, the Court entered a stay on all proceedings in the case until the resolution of several Defendants' dispositive motions. At that point, due to the Court's issuance of a stay in the case, Plaintiff could not do anything with this case. The case was on hold until this Court's ruling on the dispositive motions on July 19, 2017. Between December 9, 2016, and July 19, 2017, 222 additional days passed. In total, there are 569 days for which Plaintiff was waiting on a non-party to perform an action in this case and it was not due to Plaintiff's lack of diligence. The Court finds that under the unique circumstances of this case, the statute of limitations was tolled and has not yet expired. Accordingly, Plaintiff's claims against the John Does are timely.
The Court notes that equitable tolling would also likely provide a basis for the tolling of the statute of limitations. Equitable tolling applies when a person has been pursuing his rights diligently and some "extraordinary circumstance" prevented the timely filing.
In this lawsuit, Plaintiff tried to ascertain the names by sending a request for production of documents to Defendants. When the named KHP Defendants Peters and Ware responded, they asserted that they had no documents or knowledge regarding the identities of the officers. Plaintiff did not receive any information as to the identities of the KHP officers without court involvement.
Defendants insist that Plaintiff did not make any efforts to ascertain the identities of the John Doe Defendants or that his attempts "were minimal at best and hardly constitute diligence." Defendants first complain that Plaintiff did not do enough during the nine-month screening process by the Court to discover the true identities of the John Does. The case, however, was on hold because the Court was screening Plaintiff's complaint, and Plaintiff was waiting on the Court's decision to see if the case could move forward.
The extraordinary circumstance in this case is generally what occurred during Plaintiff's case once he filed it in federal court. Plaintiff filed this action approximately one year after the events in question and one year prior to the expiration of the statute of limitations. The Court first took approximately nine months to screen Plaintiff's initial and Amended Complaint. Once the Court screened the Amended Complaint and allowed it to proceed, during the next three months, the KHP Defendants delayed in responding to Plaintiff's request to identify the John Does (and the Court allowed these extensions of time). For over one year (November 12, 2015, through November 13, 2016), the statute of limitations continued to run and indeed expired while Plaintiff could take no action. To penalize Plaintiff for events beyond his control is not equitable. Accordingly, the Court finds that this is a case in which equitable tolling is available to Plaintiff.
In sum, the Court finds that the circumstances of this case warrant equitable considerations. Because the statute of limitations was tolled, either by the unique circumstances doctrine or equitable tolling, and it has not yet expired, Defendants' argument as to the futility of Plaintiff's proposed amendment to add the names of the John Does fails. Accordingly, the Court grants Plaintiff leave to file the Amended Complaint.
KHP Defendants Peters and Ware have each filed a Motion for Summary Judgment. Plaintiff requests that the Court deny KHP Defendant Peters' and Ware's motions because counsel has only recently been appointed and there has not been a sufficient opportunity to conduct discovery. Defendants oppose the motion arguing that there is no discovery that will change the facts and evidence set forth to date. Defendants also assert that the Court has already recognized in a previous order that any opportunity to engage in discovery pursuant to Rule 56(d) will not change any of the material facts.
When the nonmoving party "has not had the opportunity to discover information that is essential to his opposition," summary judgment should be refused.
Here, Plaintiff states that further discovery will provide more accurate evidence of the activities and whereabouts of Defendants Peters and Ware, including whether they could see or hear the events as they occurred. Plaintiff contends that further discovery may establish that Peters and Ware were aware of and had the opportunity to intervene during the alleged assault. Plaintiff's counsel avers that he believes discovery may reveal that Defendants Peters and Ware were not isolated from the events as the facts set forth in their respective summary judgment motions make it appear.
Plaintiff and Plaintiff's counsel have also detailed the previous efforts to obtain discovery. As noted above, Plaintiff (while proceeding pro se) attempted to obtain discovery but little to no information was obtained. Then, discovery in the case was stayed for quite some time. Discovery only recently resumed when Plaintiff was appointed counsel. The day that Plaintiff's counsel entered his appearance in the case is the same day that Defendant Peters' and Ware filed their motions for summary judgment. Plaintiff's counsel avers that additional time and discovery will allow him the ability to rebut Defendant Peters' and Ware's version of the events in their motions for summary judgment. The Court agrees. Defendants do not make an argument that Plaintiff has not met the four required elements and do not make any compelling argument as to why Plaintiff's motion should not be granted. Accordingly, Plaintiff's Motion to Deny Defendants Peters' and Ware's Motion for Summary Judgment Pursuant to Rule 56(d) is granted. This motion is granted without prejudice to Defendants refiling their motions for summary judgment at a later date.
A Motion for Reconsideration is not the time to assert new arguments that were not previously made. Instead, it must be based on an 1) an intervening change in the law, 2) new evidence that was previously unavailable, or 3) the need to correct clear error or manifest injustice. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Defendants do not identify any of these factors. As noted above, Defendants raised the statute of limitations issue in their previous briefing, but they did not brief it in detail. Thus, the Court will not reconsider its prior ruling and accordingly denies Defendants' Motion to Reconsider. For purposes of this Order, the Court will address the statute of limitations, relation back, and equitable consideration arguments in the context of Plaintiff's Motion for Leave to Amend as these issues ultimately address whether the amendment to include the true identities of the John Does is futile or not.
