The opinion of the court was delivered by: Judge Virginia M. Kendall
MEMORANDUM OPINION AND ORDER
Plaintiff Andre Jackson ("Jackson") filed a six-count suit against the City of Elgin ("Elgin"), Detective Todd Ramljak ("Ramljak"), and Tracey Dykema ("Dykema") on August 20, 2009.*fn1 Count I of Jackson's Amended Complaint alleges excessive force against Ramljak. Count II, alleging unlawful detention, was dismissed by prior Order of this Court on November 20, 2009. Count III alleges Dykema failed to intervene during the altercation with Ramljak, in violation of 42 U.S.C. § 1983. Counts IV and V, alleging state law claims against Ramljak for assault and battery and Elgin's liability through respondeat superior, were dismissed with prejudice by prior Order of this Court on April 16, 2010. Count VI asserts indemnification against Elgin. Three Counts remain: Count I alleging excessive force against Ramljak; Second Amended Count III alleging failure to intervene against Dykema; and Count VI alleging indemnification against Elgin. Defendant Dykema moves to dismiss Jackson's Second Amended Count III of the Amended Complaint. For the foregoing reasons, Dykema's Motion to Dismiss is denied.
On July 31, 2007, Jackson was arrested in Elgin, Illinois. (Am. Compl. ¶ 1). At the Kane County Jail, a verbal confrontation ensued between Ramljak and Jackson. (Am. Compl. ¶¶ 2, 3). The confrontation turned physical, and Ramljak put Jackson in a physical hold and forced Jackson to walk to the front of the booking area of the jail, causing Jackson to collide with a public telephone (Am. Compl. ¶¶ 4, 5). Jackson suffered injuries as a result of the confrontation with Ramljak. (Am. Compl. ¶ 8). Dykema witnessed the entire incident and at no point therein did she attempt to intervene, despite a reasonable opportunity to do so. (Am. Compl. ¶ 24). Count III alleges that Dykema is jointly liable in her individual and official capacity for the resultant injuries because she failed to intervene in violation of 42 U.S. C. § 1983. Jackson brought this suit pro se on May 18, 2009, naming only Elgin and Ramljak as defendants, but mentioning Dykema's failure to intervene as part of his Count I against Ramljak. Jackson filed an Amended Complaint on August 20, 2009 that listed, for the first time, a specific count, Count III, against Dykema. On April 16, 2010, this Court allowed Jackson to amend Count III of his Amended Complaint to name Dykema in the caption. The Court granted Jackson's motion for appointment of counsel on May 5, 2010. Jackson was granted an extension of time and filed his Second Amended Count III on June 29, 2010 and issued summons to Dykema on June 30, 2010. Dykema filed a Motion to Dismiss on July 13, 2010.
When considering a motion to dismiss under Rule 12(b)(6), a court must accept as true all facts alleged in the complaint and construe all reasonable inferences in favor of the plaintiff. See Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Detailed factual allegations" are not required, but the plaintiff must allege facts that if "accepted as true, . . . 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A claim has facial plausibility when the factual content in the pleadings allows the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. See id. Although 12(b)(6) motions are designed to ensure the sufficiency of the legal basis for a claim, if the facts pleaded show that the suit is barred by the relevant statute of limitations, the plaintiff "may plead itself out of court". Whirlpool Fin. Corp. v. GN Holdings, Inc., 67 F.3d 605, 608 (7th Cir. 1995).
Dykema moves to dismiss claiming Jackson exceeded the relevant statute of limitation. State law governs the statute of limitations for § 1983 cases, and in Illinois that period is two years. Johnson v. Sup. Ct. of Ill., 165 F.3d 1140, 1141 (7th Cir. 1999). The offense occurred on July 31, 2007 but Jackson did not include a count against Dykema until he filed his Amended Complaint on August 20, 2009. Jackson did not name Dykema in the caption until he filed his Second Amended Count III on June 29, 2010. Dykema argues that the deadline for including her in the body of the Complaint or in its caption passed on July 31, 2009, two years after the alleged offense and before Jackson's Amended Complaint or Second Amended Count III was filed. Dykema also argues that neither relation back under Rule 15 nor equitable tolling applies in this case. Alternatively, Dykema moves to dismiss because Jackson's failure to issue timely summons violates Rule 4(m). It is undisputed that Jackson filed a specific count against Dykema, and named Dykema in the caption, after the statute of limitations expired. Jackson, however, argues that his Amended Complaint and Second Amended Count III, which added a party against whom he was asserting a claim, related back to his Original Complaint and were thus timely filed under Rule 15(c)(1). Dykema's two arguments in favor of dismissal-the inapplicability of Rule 15's relation back exception and Jackson's violation of Rule 4(m)-will be addressed separately.
Jackson did not timely name Dykema in the caption of his Original Complaint or his Amended Complaint. Therefore his § 1983 claim against Dykema survives only if the filing of his Amended Complaint and Second Amended Count III relate back to the Original Complaint under Rule 15(c). See e.g., Allen v. City of Chi., 2009 WL 4506317 at *3 (N.D. Ill. 2009) (Dow, J.) (naming additional officers in false arrest claim only survives if amended complaint relates back to original). Rule 15(c)(1) provides, in relevant part, that amended pleadings may relate back as if they were filed on the date the original pleading was filed when: the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within 120 days as provided by Rule 4(m), the party to be brought in by amendment (1) received notice of the action so that it will not be prejudiced in defending on the merits and (2) knew or should have known the action would have been brought against it, but for a mistake concerning the party's identity. Fed. R. Civ. P. 15(c); see also Hall v. Norfolk S. Ry. Co., 469 F.3d 590, 595 (7th Cir. 2006). Therefore, the Court must first determine whether Jackson's Second Amended Complaint relates back under Rule 15(c)(1)(B).
Jackson argues that his addition of Dykema in a Count of his Amended Complaint on August 20, 2009, and as a party on June 29, 2010, relate back to his original pleading, which was timely filed within the two year statute of limitations. Under Rule 15(c)(1)(B), "an amendment to a pleading relates back to the date of the original pleading when . . . the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1)(B). Here, Dykema was not named as a defendant and no specific counts were alleged against her in Jackson's original May 18, 2009 Complaint. However, the claims against Dykema arose directly out of the occurrence set out in the Original Complaint-Jackson's altercation with Ramljak at the Kane County Jail on July 31, 2007. Therefore, because Jackson's Amended Complaint and Second Amended Count III assert a claim that arose out of the same conduct in the original pleading, Rule 15(c)(1)(B) is satisfied. The Court must next determine if Dykema received notice of the action and if she knew or should have known the action would have been brought against her but for a mistake concerning her identity.
Jackson argues that Dykema was put on notice by his Original Complaint. Rule 15(c)(1)(C)(i) requires the party to be brought into the amended complaint be given notice so it is not prejudiced in defending itself on the merits. See Woods v. Ind. Univ.-Perdue Univ. at Indianapolis, 996 F.2d 880, 888 (7th Cir. 1993) ("statute of limitations does not insulate from suit an individual who did not initially receive service (or other notice) in the correct capacity, so long as no prejudice resulted"). Here, Dykema does not allege in her Motion to Dismiss or in her Reply that she was prejudiced in any way by Jackson's delay in service. Dykema was present at the altercation that gave rise to this suit and was identified in the Original Complaint. Moreover, Dykema was ...