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WORTHINGTON v. WILSON

April 27, 1992

RICHARD WORTHINGTON, PLAINTIFF,
v.
DAVE WILSON AND JEFF WALL, DEFENDANTS.



The opinion of the court was delivered by: Mihm, Chief Judge.

MEMORANDUM OPINION AND ORDER

Before the court are the Defendants' motion to dismiss or for more definite statement, the Defendants' motion to strike, and the Defendants' motion for sanctions. For the reasons set forth below, the motion to dismiss (# 16-1) is granted, the motion for more definite statement (# 16-2) is moot, the motion to strike (# 28) is moot, and the motion for sanctions (# 9) is denied.

BACKGROUND

According to the amended complaint, the Plaintiff Richard Worthington ("Worthington") was arrested on February 25, 1989 by two police officers in the Peoria Heights Police Department. At the time of his arrest, Worthington was nursing an injured left hand and so advised the arresting officer. The officer responded by grabbing and twisting Worthington's injured hand and wrist, which prompted Worthington to shove the officer away and tell him to "take it easy." A second officer arrived on the scene and the two officers wrestled Worthington to the ground and handcuffed him. The officers then hoisted Worthington from the ground by the handcuffs, which caused him to suffer broken bones in his left hand. These allegations are taken as true by this court for purposes of the pending motions.

Exactly two years later, on February 25, 1991, Worthington, by his attorney Gary Morris, filed a complaint in the Circuit Court of Peoria County against the Village of Peoria Heights and "three unknown named police officers." This complaint recited the facts above and claimed that the officers' actions deprived Worthington of his constitutional rights in violation of the Civil Rights Act of 1964, 42 U.S.C. § 1983. This complaint was divided into five counts. The first three name the officers jointly and severally, and claim a variety of damages. The fourth and fifth counts name the Village, and claim that it was also responsible for the officers' conduct under the doctrine of respondeat superior. The Village removed the action to this court and moved to dismiss the claims against it on the grounds that respondeat superior is not a valid basis for municipal liability under § 1983.

The motion was set for hearing before Magistrate Judge Robert J. Kauffman on May 2, 1991. Worthington did not respond to the motion to dismiss before that date, but on the date of the hearing he voluntarily dismissed the counts against the Village. Oddly enough, three weeks later, on May 23, 1991, Mr. Morris filed a response to the Village's motion to dismiss, which had already been disposed of when Worthington voluntarily dismissed the claims against the Village. In this response, Mr. Morris confessed that the reliance upon the theory of respondeat superior in the complaint was an oversight, but stressed that there was a valid basis for the § 1983 claims against the officers. On June 4, 1991, the Village of Peoria Heights filed a motion to strike this response as improper since the motion to dismiss was no longer pending. This motion to strike was later granted by the Magistrate. The Village also moved for sanctions against Worthington and Mr. Morris for having filed a baseless action against it. This motion remains pending.

On June 17, 1991, Worthington filed an amended complaint which named as Defendants Dave Wilson and Jeff Wall ("the Defendants"), the two officers who arrested Worthington on February 25, 1989. This amended complaint contains no claim against the Village of Peoria Heights. These Defendants, represented by Jeanne Wysocki (the same attorney who represented the Village), moved to dismiss the amended complaint on the grounds that the statute of limitations had run and that the complaint failed to state a proper claim under § 1983. Worthington responded to this motion and a hearing was held before the Magistrate on October 31, 1991. On December 19, 1991, the Magistrate issued a recommendation that both the motion to dismiss and the motion for sanctions be allowed. Worthington filed an objection to this recommendation, to which the Defendants in turn responded. The Defendants also filed a motion to strike an affidavit included in Worthington's response to the motion to dismiss. This motion also remains pending. On March 17, 1992, this court held an additional hearing on the pending motions.

DISCUSSION

I.  Statute of Limitations/Relation Back

In their motion to dismiss, the Defendants first argue that the amended complaint against them must be dismissed because the statute of limitations has run. The Defendants note that the statute of limitations for § 1983 cases in Illinois is two years, and that the amended complaint was not filed until about four months after this period had expired. Moreover, the Defendants argue that the amended complaint cannot be deemed to relate back to the filing date of the original complaint because the prerequisites of relation back under Federal Rule of Civil Procedure 15(c) have not all been met. Specifically, the Defendants argue that they did not have notice of the action before the statute of limitations period had run as required by Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), and that the renaming of fictitious parties does not constitute a "mistake" under Rule 15(c).

Worthington's primary argument in response is that relation back of his amended complaint is not governed by Rule 15(c), but rather by certain provisions in the Illinois Code of Civil Procedure, namely Ill. Rev.Stat. ch. 110, ¶¶ 2-407 and 2-413. Worthington argues that, under these provisions, his amended complaint is properly deemed to relate back to the February 25, 1991 filing of the original complaint. In the alternative, Worthington suggests that the requirements of Rule 15(c) have been met. Finally, Worthington argues that, whatever rules govern the situation, he should not be punished for omitting the arresting officers' names from the original complaint because the Peoria Heights Police Department had withheld that information from him.

In his recommendation, the Magistrate agreed with the Defendants that, under Rule 15(c) and Schiavone, the amended complaint naming the officers could only relate back if the officers were actually aware of the action before the limitations period expired on February 25, 1991. Since the record demonstrated that the Village was not even served until February 28, 1991, the Magistrate concluded that the Defendants did not have actual knowledge of the action on February 25, 1991 and that the amended complaint should therefore be dismissed as untimely filed. This court now addresses the parties' arguments in turn.

A.  Schiavone Notice Requirements

As an initial matter, there is no doubt that the statute of limitations for a § 1983 action in Illinois is two years. See Wilson v. Garcia, 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985); Kalimara v. Department of Corrections, 879 F.2d 276 (7th Cir. 1989). Therefore, as noted by the Magistrate, Worthington's action against the Defendants must have been filed by February 25, 1991. Since the amended complaint was not filed until June 17, 1991, the only way the amended complaint can be found to be timely filed is if it relates back to the filing of the original complaint. Relation back of amendments under federal rules is covered by Rule 15(c).

The Defendants' first argument is that Rule 15(c), as interpreted by Schiavone, requires that the party to be brought in by amendment receives notice of the action before the expiration of the statute of limitations period. The Defendants argue that because they did not receive notice of this action within this time, the amended complaint does not relate back and is therefore untimely. Because this court finds that Schiavone no longer controls, it rejects the Defendants' first argument.

Until December 1, 1991, Rule 15(c) provided, in relevant part:

  Whenever 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, the
  amendment relates back to the date of the original
  pleading. An amendment changing the party against
  whom a claim is asserted relates back if the
  foregoing provision is satisfied and, within the
  period provided by law for commencing the action
  against the party to be brought in by amendment
  that party (1) has received such notice of the
  institution of the action that the party will not
  be prejudiced in maintaining his defense on the
  merits, and (2) 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.

In Schiavone, the Supreme Court interpreted this provision to require that, in addition to the amended complaint arising out of the same conduct set forth in the original complaint, the new party must have received actual notice of the action (and that it was the proper party) before the statute of limitations period expired. 477 U.S. at 30-31, 106 S.Ct. at 2385. As noted by the Magistrate and counsel for the Defendants, it appears that the Defendants did not receive notice of this action against them by February 25, 1991. Thus, under the old version of Rule 15(c) and Schiavone, the amended complaint against the officers would not relate back and would thus be untimely filed.

However, as of December 1, 1991, Rule 15(c) reads differently. As will be seen momentarily, the amendment was designed to change the requirement of Schiavone that the new party receives notice of the action before the expiration of the limitations period. ...


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