DECISION AND ENTRY ADOPTING UNITED STATES MAGISTRATE JUDGE'S REPORT AND RECOMMENDATIONS (DOC. #93); OVERRULING PLAINTIFF'S OBJECTIONS THERETO (DOC. #96); SUSTAINING IN PART AND OVERRULING IN PART MOTION TO DISMISS OF DEFENDANTS MONTGOMERY COUNTY AND DEFENDANTS SGT. CURTIS LARAVIE, OFFICER STACY FRISK, OFFICER THOMAS CONNOR, AND SGT. JAY VITALI (DOC. #84); DISMISSING WITH PREJUDICE ALL CLAIMS AGAINST DEFENDANTS SGT. CURTIS LARAVIE, OFFICER STACY FRISK, OFFICER THOMAS CONNOR, AND SGT. JAY VITALI; DIRECTING PLAINTIFF TO SHOW CAUSE IN WRITING, WITHIN 10 DAYS, WHY CLAIMS AGAINST OFFICER STEVEN LEOPOLD AND JOHN DOE OF SUMMIT BEHAVIORAL HEALTH SHOULD NOT BE DISMISSED WITHOUT PREJUDICE FOR FAILURE TO OBTAIN TIMELY SERVICE OF PROCESS

WALTER H. RICE, UNITED STATES DISTRICT JUDGE.

Plaintiff, David O. Cooper, alleges that his constitutional rights were violated when he was a pretrial detainee at the Montgomery County Jail. In addition to seeking relief under 42 U.S.C. § 1983, he asserts a claim of assault and battery. The Second Amended Complaint, Doc. #74, asserts claims against the following defendants: Montgomery County, Ohio; John Doe of Summit Behavioral Health; Dr. Anthony Whitaker; Captain Chuck Crosby; Major Daryl Wilson; Sergeant Curtis Laravie; Officer Stacey Frisk; Officer Thomas Connor; Officer Steven Leopold; and Sergeant Jay Vitali. All claims against Dr. Whitaker were voluntarily dismissed on May 24, 2016. Doc. #92.

On July 7, 2016, United States Magistrate Judge Michael J. Newman issued a Report and Recommendations, Doc. #93, recommending that the Court sustain in part and overrule in part the Motion to Dismiss of Defendants Montgomery County and Defendants Sgt. Curtis Laravie, Officer Stacey Frisk, Officer Thomas Connor, and Sgt. Jay Vitali, Doc. #84. He found that Plaintiff had stated a viable claim under 42 U.S.C. § 1983 against Defendant Montgomery County. Montgomery County has not objected to this finding.

Magistrate Judge Newman also found that Plaintiff's claims against Defendants Laravie, Frisk, Connor and Vitali were all time-barred. The events giving rise to this lawsuit occurred in 2012. Neither the original Complaint, Doc. #1, nor the Amended Complaint, Doc. #27, identified these defendants by name. They were simply listed as John Doe defendants. It was not until Plaintiff filed the Second Amended Complaint, Doc. #74, on August 17, 2015, that he substituted Laravie, Frisk, Connor and Vitali for the John Doe defendants. This is well beyond the two-year statute of limitations for the § 1983 claims, and the one-year statute of limitations applicable to the assault and battery claim. See Browning v. Pendleton 869 F.2d 989, 990 (6th Cir. 1989); Ohio Rev. Code § 2305,111(B).

Because Plaintiff has filed Objections to this portion of the Report and Recommendations, Doc. #96, the Court must make a de novo review, and may accept, reject or modify the recommended disposition. See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1).

The parties agree that the relevant issue is governed by Federal Rule of Civil Procedure 15(c)(1)(C). Rule 15(c) states as follows:

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

As Magistrate Judge Newman noted, the Sixth Circuit has held that "a mistake concerning the proper party's identity," Fed. R. Civ. P. 15(c)(1)(C)(ii), means "[a]n error, misconception, or misunderstanding; an erroneous belief." Brown v. Cuyahoga Cty., 517 Fed.Appx. 431, 434 (6th Cir. 2013) (quoting Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 548, 130 S.Ct. 2485, 177 L.Ed.2d 48 (2010)). A "mistake" does not result from a plaintiff's failure to exercise due diligence to learn the true identity of John Doe defendants within the applicable statute of limitations period. See Brown, 517 Fed.Appx. at 433-34 ("absence of knowledge is not a mistake as required by Rule 15(c)(1)(C)(ii)"); Smith v. Akron, 476 Fed.Appx. 67, 69 (6th Cir. 2012) (holding that substituting previously unknown defendants for John Doe defendants does not satisfy the "mistaken identity" requirement of Rule 15(c)).

Plaintiff does not deny that this is a correct statement of the law. He argues, however, that given the circumstances presented here, the Court should find that the Second Amended Complaint relates back to the original Complaint, and should decide the claims on their merits. He explains that, in the original Complaint, Doc. #1, and the Amended Complaint, Doc. #27, he identified the parties involved as best as he could by their shifts and their names, and explained the nature of the John Doe defendants' participation in the events giving rise to this suit. He maintains, therefore, that they knew or should have known that they would be defendants in this action, and will suffer no prejudice if he is permitted to proceed.

This, however, is not enough. Plaintiff must also show that he made a "mistake concerning the proper party's identity." Smith, 476 Fed.Appx. at 69. As in Smith, he "did not make a mistake about the identity of the parties he intended to sue; he did not know who they were and apparently did not find out within the two-year limitations period. The relation-back protections of Rule 15(c) were not designed to correct that kind of problem." Id. (emphasis in original). See also Wiggins v. Kimberly-Clark Corp., 641 Fed.Appx. 545, 549 (6th Cir.2016) (holding that even if defendants knew or should have known that the plaintiff intended to sue them, plaintiff "failed to establish that his lack of knowledge of their identities was due to a `mistake' as the Rule requires.").

Plaintiff notes that, throughout the course of this litigation, he has been plagued by serious physical and mental health problems, and he did not obtain counsel until after the statutes of limitations had run on his claims. While the Court sympathizes with the struggles Plaintiff has faced, he is nonetheless bound by the procedural rules, regardless of whether he is represented by counsel. See McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993). As the Sixth Circuit noted in Wiggins, once he filed suit, he had the tools he needed to seek discovery concerning the identity of the John Doe defendants, and had ample time to amend the Complaint before the statutes of limitations ran. 641 Fed.Appx. at 549.

Given the circumstances presented here, the relation-back provision does not save Plaintiff's claims against Defendants Laravie, Frisk, Connor or Vitali. As the court explained in Brown, "`[m]istake' means an actual mistake." 517 Fed.Appx. at 435. The relation-back provision does not apply where, as here, the plaintiff simply fails to exercise due diligence in identifying whom to sue. Id. at 434.

For this reason, the Court ADOPTS Magistrate Judge Newman's Report and Recommendations, Doc. #93, in its entirety, and OVERRULES Plaintiff's Objections thereto, Doc. #96. Based on the reasoning and citations of authority set forth in the Report and Recommendations, as well as upon a thorough de novo review of this Court's file and the applicable law, the Motion to Dismiss of Defendants Montgomery County and Defendants Sgt. Curtis Laravie, Officer Stacey Frisk, Officer Thomas Connor, and Sgt. Jay Vitali, Doc. #84, is SUSTAINED IN PART and OVERRULED IN PART.

Because all claims against Defendants Laravie, Frisk, Connor, and Vitali are time-barred, they will be DISMISSED WITH PREJUDICE. Plaintiff may proceed on his § 1983 claims asserted against Montgomery County. In addition, Plaintiff's claims against Captain Chuck Crosby and Major Daryl Wilson remain pending.

The Court notes that Officer Steven Leopold, and John Doe of Summit Behavioral Health, were also named as Defendants in the Second Amended Complaint. However, it is not clear from the record whether they agreed to waive service, or whether they were properly served within the 120-day limit that was still in effect on the date the Second Amended Complaint was filed. See Joint Motion to Vacate Scheduling Order, Doc. #83, PageID##359-60 (indicating that Defendants Montgomery County, Crosby, Wilson, Laravie, Frisk, Connor, and Vitali agreed to waive service on February 12, 2016). Accordingly, within 10 days of the date of this Decision and Entry, Plaintiff is ordered to SHOW CAUSE in writing why the claims against Officer Steven Leopold and John Doe should not be dismissed without prejudice for failure to timely complete service of process.

REPORT AND RECOMMENDATION1 THAT: (1) DEFENDANTS' MOTION TO DISMISS BE DENIED WITH REGARD TO DEFENDANT MONTGOMERY COUNTY AND GRANTED WITH REGARD TO DEFENDANTS LARAVIE, FRISK, CONNOR AND VITALI; AND (2) THAT THE SECOND AMENDED COMPLAINT BE DISMISSED AGAINST DEFENDANTS LARAVIE, FRISK, CONNOR AND VITALI WITH PREJUDICE

Michael J. Newman, United States Magistrate Judge.

This civil case is before the Court on the motion to dismiss filed by Defendant Montgomery County, and individual Defendants Curtis Laravie, Stacey Frisk, Thomas Connor and Jay Vitali (hereinafter referred to as "the individual moving Defendants").2 Plaintiff, through counsel, filed a memorandum in opposition to Defendants' motion. Doc. 88. Defendants did not file a reply memorandum, and the time for doing so has expired. The undersigned has carefully considered all of the foregoing, and Defendants' motion to dismiss is now ripe for decision.

I.

For purposes of this motion to dismiss, the Court must: (1) view the complaint in the light most favorable to Plaintiff, and (2) take all well-pleaded factual allegations as true. Tackett v. M&G Polymers, 561 F.3d 478, 488 (6th Cir. 2009); Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir. 2009). Plaintiff David O. Cooper is currently an inmate at the Southern Ohio Correctional Facility ("SOCF") in Lucasville, Ohio who suffers from borderline personality disorder ("BIF"). Doc. 74 at PageID 312. Plaintiff was also an inmate at SOCF serving a six-month parole violation in late February 2012, when, on February 29, 2012, he was transferred to the Montgomery County, Ohio Jail and remained detained pending trial on new state charges — presumably the charges for which he is now serving a ten year prison sentence. Id. at PageID 314, 323; see also doc. 1 at PageID 1-2. According to the allegations in his second amended complaint, Plaintiff was detained pretrial in the Montgomery County Jail from February 29, 2012 through at least October 31, 2012. See doc. 74 at PageID 314, 323.

Plaintiff, pro se, commenced this civil action on August 15, 2013 against: (1) the Montgomery County Sheriff's Office; (2) "Barb Doe," an unknown mental health services agent; (3) an unnamed captain within the Montgomery County Sheriff's Office; (4) an unnamed major within the Montgomery County Sheriff's Office; (5) an unnamed second shift lieutenant within the Montgomery County Sheriff's Office; and (6) unnamed deputies within the Montgomery County Sheriff's Office. See doc. 1 at PageID 1. In his original complaint, Plaintiff asserted civil rights claims pursuant to 42 U.S.C. § 1983 arising from alleged actions and/or inactions taken by Defendants at the Montgomery County Jail during his detainment in 2012. See id. at PageID 1-3.

Plaintiff, again pro se, filed his first amended complaint on May 19, 2014 against: (1) the Montgomery County Sheriff's office; (2) Barb Doe; (3) Captain Chuck Crosby; (4) Major Daryl Wilson; (5) the unnamed second shift lieutenant within the Montgomery County Sheriff's Office; and (6) unnamed deputies within the Montgomery County Sheriff's Office. Doc. 27 at PageID 77. In the first amended complaint, Plaintiff again asserted civil rights claims pursuant to 42 U.S.C. § 1983. See id. at PageID 1-3.

This case is now before the Court on Plaintiff's second amended complaint filed through counsel on August 17, 2015.3 Doc. 74. Plaintiff continues to assert claims under 42 U.S.C. § 1983 and adds/substitutes a number of new parties, namely: Dr. Anthony R. Whitaker;4 Sergeant Curtis M. Laravie; Officer Stacey R. Frisk; Officer Thomas J. Connor; Officer Steven Leopold; and Sergeant Jay Vitali. See doc. 74 at PageID 312. Plaintiff alleges a number of constitutional rights violations during his pretrial detainment, including but not limited to, the use of excessive force and acting with deliberate indifference to his serious medical needs. See id. at PageID 324. Plaintiff also now asserts claims for assault and battery under Ohio state law. Id. at PageID 325. Defendants move to dismiss the second amended complaint pursuant to Fed. R. Civ. P. 12(b)(5) & (6), as well as Rule 4(m). Doc. 84 at PageID 362-71.

II.

A motion to dismiss filed pursuant to Fed. R. Civ. P. 12(b)(6) operates to test the sufficiency of the complaint and permits dismissal for "failure to state a claim upon which relief can be granted." To show grounds for relief, Fed. R. Civ. P. 8(a)(2) requires that the complaint contain a "short and plain statement of the claim showing that the pleader is entitled to relief." While Fed. R. Civ. P. 8 "does not require `detailed factual allegations' ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Pleadings offering mere "`labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do." Id. (citing Twombly, 550 U.S. at 555, 127 S.Ct. 1955).

In determining a motion to dismiss, "courts `are not bound to accept as true a legal conclusion couched as a factual allegation.'" Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). Further, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id.

In order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. In addition to well-pleaded allegations in the complaint, the Court may also consider "matters of public record, orders, items appearing in the record of the case, and exhibits attached to the complaint," as well as documents attached to a defendant's motion to dismiss that are important to the plaintiff's claims or if referred to in the complaint. Amini v. Oberlin College, 259 F.3d 493, 502 (6th Cir. 2001) (citation omitted); Composite Tech., L.L.C. v. Inoplast Composites SA DE CV, 925 F.Supp.2d 868, 873 (S.D. Ohio 2013).

A claim is plausible where "plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Plausibility "is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not `show[n]' — `that the pleader is entitled to relief.'" Id. at 679, 129 S.Ct. 1937 (alteration in original) (citing Fed. R. Civ. P. 8(a)(2)).

III.

Defendants move to dismiss claims asserted against: (A) Montgomery County; and (B) the individual moving Defendants. The undersigned addresses the arguments presented by Defendants in turn.

A. Montgomery County

Defendants first move to dismiss the claims against Montgomery County, arguing: (1) the County is not sui juris; and (2) Plaintiff fails to allege any facts supporting its liability under § 1983 and Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Doc. 84 at PageID 365-66.

1. Sui Juris

The Court first addresses Defendants' contention that the claims against Montgomery County — all of which are asserted under 42 U.S.C. § 1983 — must be dismissed because it is not sui juris, i.e., not an entity capable of suing or being sued under Ohio law. See doc. 84 at PageID 365-66. In response, Plaintiff cites the case of Stack v. Karnes, 750 F.Supp.2d 892, 897-99 (S.D. Ohio 2010), in which Judge Frost concluded that, despite an Ohio county's lack of capacity to sue or be sued under Ohio law, individuals may properly sue counties under § 1983 for Monell claims. Such holding has been adopted by other Judges in this District. Black v. Hamilton Cty. Pub. Def. Comm'n, No. 1:12-CV-503, 2013 WL 684394, at *4 (S.D. Ohio Feb. 25, 2013) (Litkovitz, M.J.), report and recommendation adopted, No. 1:12CV503, 2013 WL 1155253 (S.D. Ohio Mar. 19, 2013) (Dlott, C.J.) (holding that "a county may be held liable [under § 1983] even though it is not sui juris under Ohio law"). Finding authority supporting the contention that Montgomery County may be sued under § 1983 on a Monell theory of liability, the undersigned finds no merit to Defendants' contention in this regard.

2. Sufficiency of the Pleadings

Defendants also argue that Plaintiff fails to plead sufficient facts to support a claim against it under the authority of Monell. Id. at PageID 366. "A local government is not responsible under § 1983 solely because injuries were inflicted by its employees or agents." Brown v. Cuyahoga Cty., Ohio, 517 Fed.Appx. 431, 436 (6th Cir. 2013) (citing Monell, 436 U.S. at 694, 98 S.Ct. 2018). Instead, local governments are liable under § 1983 only "when execution of a government's policy or custom ... inflicts the injury. Id. To survive a motion to dismiss, "[a] plaintiff must therefore specify a governmental policy or custom from which his injuries flowed." Id. (citing Paige v. Coyner, 614 F.3d 273, 284 (6th Cir. 2010)).

Plaintiff contends that he sufficiently pleads facts supporting his Monell claim in paragraph 93 of the second amended complaint, by alleging:

Doc. 88 at PageID 389 (citing doc. 74 at PageID 324). While the allegations set forth in paragraph 93, viewed alone, appear conclusory to the undersigned, in the interests of justice, the Court has carefully reviewed all of the allegations in the second amended complaint, including but not limited to, allegations from which the undersigned can reasonably infer County policies of allegedly causing injury to Plaintiff. Such policies include, inter alia, cell assignments (observation units verses general population), the denial of prescribed medication following incidents of hoarding, and the supervision of mentally ill inmates. See doc. 74 at PageID 315-23. In light of the foregoing, the undersigned finds no merit to Defendants' motion in this regard.

B. Individual Moving Defendants

The individual moving Defendants also move to dismiss the claims asserted against them, arguing that: (1) they have not been properly served with process within the timeframe required by Fed. R. Civ. P. 4(m); and (2) the claims asserted are barred by the applicable statutes of limitation. Id. at PageID 366-70. The Court need only address Defendants' second argument.5

Specifically, Defendants Laravie, Frisk, Connor and Vitali argue that Plaintiff's causes of action all accrued on or before October 31, 2012, and that he did not file his second amended complaint adding them as parties to this litigation in place of "Doe" or "unknown Defendants" until August 17, 2015, well beyond the two-year limitations period for § 1983 claims, see Browning v. Pendleton, 869 F.2d 989, 990 (6th Cir. 1989), and even further beyond the one-year limitations period for assault and battery claims under Ohio law, see Ohio Rev. Code § 2305.111(B).6 In response, Plaintiff points to Fed. R. Civ. P. 15(c), which governs the relation back of amendments to a pleading.

"The Sixth Circuit treats naming a specific individual in place of a John Doe as joinder of a new party[,]" i.e., a change of parties and not a "mere substitution of parties." Wiggins v. Kimberly-Clark Corp., 641 Fed.Appx. 545, 547-48 (6th Cir. 2016) (citing Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 1996)). Specifically, "[a]n amendment that has the effect of changing a party is controlled by Federal Rule of Civil Procedure 15(c)(1)(C). Erie Indem. Co. v. Keurig, Inc., No. 1:10-CV-02899, 2011 WL 2893013, at *1 (N.D. Ohio July 15, 2011) (citing Jackson v. Herrington, 393 Fed.Appx. 348, 352 (6th Cir. 2010)). Where, as here, "the amendment is filed after the statute of limitation period has run, it will only relate back to the date of the filing of the initial complaint if three requirements are met[:]"

Id. Defendants, in their motion to dismiss, make no argument regarding the relation back of the second amended complaint and fail to respond to the arguments advanced by Plaintiff in this regard. See doc. 84 at PageID 369-70; doc. 88 at PageID 391-92.

Nevertheless, Plaintiff bears the burden of establishing relation back, and fails to meet the "mistake" requirement of Fed. R. Civ. P. 15(c)(1)(C)(ii). DeBois v. Pickoff, No. 3:09CV230, 2011 WL 1233665, at *5 (S.D. Ohio Mar. 28, 2011). While Plaintiff argues that he attempted to identify the parties involved "as best as [he] could" at the time of his original filing, he never determined their real identities before expiration of the limitations period and continued forward against these unidentified Defendants as "Doe" Defendants. See doc. 1 at PageID 1; doc. 27 at PageID 77.

Rule 15(c)(1)(C) "allows relation back for the mistaken identification of defendants, not for defendants to be named later through `John Doe,' `Unknown Defendants' or other missing appellations." Smith v. City of Akron, 476 Fed.Appx. 67, 69 (6th Cir. 2012); see also Brown v. Cuyahoga Cnty., Ohio, 517 Fed.Appx. 431, 433-34; Wiggins, 641 Fed.Appx. at 549. The record demonstrates here that Plaintiff "did not make a mistake about the identity of the parties he intended to sue" and, instead, "he did not know who they were and apparently did not find out within the two-year limitations period." Id. The Sixth Circuit has made clear that "the relation-back protections of Rule 15(c) were not designed to correct that kind of problem." Id. Although the Court recognizes that Plaintiff initiated this case pro se, the Court cannot alter "procedural rules in ordinary civil litigation ... so as to excuse mistakes by those who proceed without counsel." McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993).

Accordingly, Plaintiff's claims against Laravie, Frisk, Connor and Vitali should be dismissed as barred by the applicable statute of limitations.

IV.

Based on all of the foregoing, the undersigned RECOMMENDS that: (1) Defendants' motion to dismiss (doc. 84) be DENIED with regard to the claims asserted against Montgomery County; (2) that the motion to dismiss (doc. 84) be GRANTED with regard to claims asserted against Defendants Laravie, Frisk, Connor and Vitali; and (3) that the claims against Defendants Laravie, Frisk, Connor and Vitali be DISMISSED WITH PREJUDICE.