FREDA L. WOLFSON, District Judge.
This matter having been opened to the Court by Defendants' motion to dismiss Plaintiff's Amended Complaint (ECF No. 20) and Plaintiff's cross-motion to amend his Complaint to add Defendants S. Thompson and R. Turner. (ECF No. 26.) For the reasons explained below, the Court denies without prejudice Plaintiff's cross-motion to amend as premature in light of counsel's certification submitted on Plaintiff's behalf. The Court will not strike the entire Amended Complaint, which has been answered by Defendant Warren, but will strike the names of S. Thompson and R. Turner from the Amended Complaint. The Court dismisses Defendants' motion to dismiss the Amended Complaint as to S Thompson and R. Turner as moot in light of the Court's denial of Plaintiff's motion to amend.
Plaintiff, who is represented by counsel, initially filed his Complaint on September 30, 2013. (ECF No. 1.) Plaintiff sued Gary M. Lanigan, Commissioner of the New Jersey Department of Corrections ("NJDOC"), Charles Albino, Administrator at Southern State Correctional Facility ("SSCF"), and Charles Warren, Administrator at SSCF, alleging Eighth Amendment violations under Section 1983 and state-law claims under New Jersey's Tort Claims Act ("NJTCA") arising out of the State Defendants' alleged failure to protect Plaintiff from an attack by a fellow inmate, Defendant Jermaine Carter, who threw boiling water at Plaintiff. (See Id.) The Complaint included a state law claim for assault against Defendant Carter. (Id. at 8.) Finally, the Complaint also named as Defendants "John Doe 1-10, individually and officially as Corrections Officers for the State of New Jersey Department of Corrections, Jane Roe 1-10, individually and officially as Supervisory Corrections Officers for the New Jersey Department of Corrections." (Id.)
Summons issued, but the Complaint was served only on Defendant Lanigan, and he filed a motion to dismiss on December 30, 2013 (ECF No. 6), which was granted by the Honorable Joel A. Pisano, U.S.D.J. (retired) on May 9, 2014.
On November 25, 2014, Plaintiff's attorney filed an Amended Complaint on the docket that identifies two of the John Does as Defendants S. Thompson and R. Turner.
Plaintiff alleges that Defendant Thompson, along with other John Does, was a correctional officer assigned to Plaintiff's unit and left his post "completely unattended" at the time Defendant Carter attacked Plaintiff with the boiling water:
(Am. Compl. at ¶ 19.) Plaintiff further alleges that "by leaving the unit/floor completely unattended . . . Defendants S. Thompson and/or John Doe 1-10 failed to protect Plaintiff from a violent attack at the hands of an inmate with a known history of violence thereby disregarding an excessive risk to his health and safety in violation of his constitutional rights." (Id.)
The Amended Complaint alleges that Defendant Turner, among other supervisors, "was responsible for the oversight, training, and supervision of Corrections staff at Southern State Correctional Facility, including Defendant Thomson." (Am. Compl. at ¶ 6.) Plaintiff's amended Complaint further alleges that "this problem had occurred on numerous previous occasions," and that Defendants Turner, Warren, and Jane Doe 1-10 "failed to take appropriate remedial measures" and failed to train and supervise their employees. (Am. Compl. at ¶ 27.) The Amended Complaint also alleges that Defendants Turner, Jane Roe 1-10, Albino, and Warren "created and/or permitted a policy, practice, or custom under which unconstitutional practices occurred." (Id. at ¶¶ 27-28.)
Prior to the January 9, 2015 deadline for service set by the Magistrate Judge, Defendants Warren, Turner, and Thompson waived service of the Amended Complaint (ECF No. 16). Defendant Warren filed an answer to the Amended Complaint on February 9, 2015. (ECF No. 19). On February 10, 2015, Turner and Thompson then filed a motion to dismiss the Amended Complaint, claiming that (1) the Amended Complaint was improperly filed without written consent of Defendant or leave of Court, (2) the statute of limitations had run, (3) and that Plaintiff cannot take advantage of New Jersey's fictitious defendant rule because he failed to exercise diligence in identifying Defendants Thompson and Turner. (ECF No. 20.)
On April 2, 2015, Plaintiff's attorney filed both (1) a response to Defendants' motion to dismiss (ECF No. 27) and (2) a cross-motion to amend the Complaint in an apparent attempt to cure the improper filing of the Amended Complaint. (ECF No. 26.) Plaintiff's attorney did not attach a copy of the proposed Amended Complaint to his cross-motion to amend, but did attach a certification in support of his motion to amend, including exhibits.
The Court will first address Plaintiff's retroactive cross-motion to amend because it may moot Defendants' motion to dismiss. See e.g., Profoot, Inc. v. MSD Consumer Care, Inc., No. CIV. 11-7079, 2012 WL 1231984, at *1 (D.N.J. Apr. 12, 2012). The Court begins by noting that Plaintiff filed the Amended Complaint improperly without seeking written consent of his adversaries or leave of court.
Rule 15(a), however, does not automatically preclude the Court from accepting an amended complaint, where a Plaintiff has retroactively sought to amend his or her complaint and otherwise meets the requirements for amendment under Fed. R. Civ. P. 15. See, e.g., Beale v. Dept. of Justice, Civ. A. No. 06-2186, 2007 WL 327465, at *3 (D.N.J. Jan. 30, 2007) (allowing the plaintiff retroactive leave to amend even though his second amended complaint was filed without consent of the defendant or leave of the Court); Deeley v. Genesis Healthcare Corp., No. CIV.A. 10-1242, 2010 WL 3239352, at *2 (E.D. Pa. Aug. 16, 2010) (finding that plaintiff's second amended complaint was improperly filed because he failed to obtain the consent of defendants or leave of this Court as required under Rule 15(a) but granting belated motion to amend complaint); see also Lehman v. Diamond Dev. Co., Civ. A. No. 10-cv-0197, 2010 WL 2265876, at *2 (M.D. Pa. June 2, 2010) (striking Plaintiff's second amended complaint and directing Plaintiff to obtain necessary leave before refiling); Thomas v. Ne. Educ. Intermediate Unit 19, Civ. A. No. 3:06-CV-1902, 2008 WL 314373, at *4 (M.D. Pa. Feb.1, 2008) (allowing the plaintiff leave to amend and in effect re-file after striking the plaintiff's second amended complaint for failure to follow Rule 15(a)).
The issue here is whether Plaintiff's Amended Complaint naming Defendants Thompson and Turner relates back to the original Complaint under Fed. R. Civ. P. 15(c). Plaintiff filed his original Complaint on September 30, 2013 and that Complaint lists the date of the incident as "on or around September 28, 2013." (ECF No. 1.) Plaintiff's Amended Complaint, however, corrects the year of the incident, and lists it as occurring "on or around September 28, 2011," i.e., approximately two years earlier than the date listed in the original Complaint. Thus, the Amended Complaint was filed well outside the applicable two-year statute of limitations.
Pursuant to Rule 15(c)(1)(A), an amended complaint relates back to the filing of the original complaint if relation back is allowed under the law that provides the applicable statute of limitations, in this case, New Jersey law. See Fed. R. Civ. P. 15(c)(1)(A) ("An amendment to a pleading relates back to the date of the original pleading when: the law that provides the applicable statute of limitations allows relation back[.]"). New Jersey law provides the statute of limitations for this action. As such, New Jersey law also determines whether the Second Amended Complaint relates back to the filing date of the Complaint. See Padilla v. Twp. of Cherry Hill, 110 F. App'x. 272, 276 (3d Cir. 2004).
Under New Jersey law, a plaintiff may avail himself of the so-called fictitious party rule if a defendant's true identity is "unknown" at the time of filing. N.J. Ct. R. 4:26-4; Mears v. Sandoz Pharm., Inc., 300 N.J.Super. 622, 631-32 (App. Div. 1997). Rule 4:26-4 provides in relevant part that "if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification." Id. Rule 4:26-4 further provides that "Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name, such motion to be accompanied by an affidavit stating the manner in which that information was obtained." Id.
Based on the certification attached to his cross-motion to amend, Plaintiff's counsel appears to have obtained the names of S. Thompson and R. Turner through a handwritten disciplinary report, which is dated September 29, 2011. (Patti Cert, at Ex. I.) The disciplinary report appears to have been written by Defendant Thompson, who is listed as the "reporting employee" and provides the following "description of [the] alleged infraction":
(Id.)
Plaintiff's counsel acknowledges that Plaintiff has had the disciplinary report in his possession at least since the filing of the Complaint on September 30, 2013, but states that Plaintiff's "counsel determined that the information contained [in the disciplinary report] was too vague with regard to which specific corrections officer was on duty. The report only identifies S. Thopson [sic] as the `reporting employee' who then in turn reported the incident to Sgt. Turner." (Patti Cert., at ¶ 19 (alteration in original).) Plaintiff's counsel offers no explanation in his certification for why he then decided to file an Amended Complaint in late 2014 naming these two Defendants after he had already determined that the report was too vague to support specific allegations against Defendants Thompson and Turner. Instead, Plaintiff's counsel's certification states only that "[o]ne can assume upon information and belief that these two correctional officers were directly responsible for the oversight and control of the relevant housing unit."
Plaintiff's counsel cannot have it both ways. If the Court accepts Plaintiff's counsel's statement that he believed that the information contained in the disciplinary report was too vague to identify Thompson and Turner as correctional officers who played a role in causing Plaintiff's injuries, Plaintiff's counsel must point to
In contrast, the allegations against Defendant Thompson in the Amended Complaint identify Thompson as one of John Doe officers who allegedly left his post "completely unattended" and thus enabled Defendant Carter to heat the boiling water unobserved and throw the boiled water at Plaintiff. (Am. Compl. at ¶ 19.) The Amended Complaint alleges that Defendant Turner "was responsible for the oversight, training, and supervision of Corrections staff at Southern State Correctional Facility, including Defendant Thompson" (Am Compl. at ¶ 6) and "failed to take appropriate remedial measures" and/or "train and supervise their employees" and/or implement policies in light of prior similar problems. (Am. Compl. at ¶¶ 27-28.)
The Court finds that Plaintiff's counsel has not sufficiently explained (1) how he came to identify Defendants Thompson as one of the John Doe correctional officers who abandoned his post and (2) how he came to identify Defendant Turner as one of the John Does supervisors who failed to train, supervise and/or implement policies in light of prior similar problems. As such, the Court denies Plaintiff's motion to amend as premature in light of his counsel's certification. The Court makes no findings at this time as to whether Plaintiff's counsel will meet his other obligations under the fictitious party rule should discovery commence and reveal that Thompson, Turner, or any other as-yet-unidentified individual played a role in causing Plaintiff's injuries.
