The opinion of the court was delivered by: Judge Robert M. Dow, Jr.
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas P. Lally ("Plaintiff") filed this 42 U.S.C. § 1983 action against various employees of the Chicago Police Department (collectively, "Defendants"). Plaintiff alleges that Defendants falsely arrested and imprisoned him, attempted to cover up their unlawful actions, and intentionally caused him emotional distress, in violation of his First, Fourth and Fourteenth Amendment rights. Plaintiff's first amended complaint  adds Officer Gonzalez as a defendant in place of the originally named "Jane Doe." Before the Court is Gonzalez's motion to dismiss  Plaintiff's first amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the amendment is time-barred. Also before the Court is Plaintiff's motion  for leave to file a second amended complaint that names Sergeant Kaupert as a defendant in place of the originally named "Sergeant Crawford." For the reasons stated below, the Court grants Defendant Gonzalez's motion to dismiss  and grants Plaintiff's motion for leave to file a second amended complaint  naming Sergeant Kaupert as a defendant.
On August 15, 2008, Plaintiff, a battalion chief of the Chicago Fire Department, was supervising a response to a fire. Plaintiff requested that Defendant police officers Ramos and Gonzalez, who were on the scene of the fire, provide a report number to document the property damage that the fire caused. Ramos and Gonzalez refused to provide the report number, so Plaintiff was forced to radio for help from a police supervisor. The police supervisor, Sergeant Kaupert, soon arrived, but instead of directing Ramos and Gonzalez to prepare the report, Kaupert, Ramos, and Gonzalez publically belittled Plaintiff. When Plaintiff threatened to report this behavior, Kaupert ordered Plaintiff to be arrested. Defendant Officer Norberg and another male officer handcuffed Plaintiff and transported him from the scene of the fire to Police District 17 in a squad car. In the car and at the station, Defendant Officer Norberg continually insulted Plaintiff.
After being held in custody for approximately one hour, Defendant Gale, the acting watch commander, informed Plaintiff that he would not be charged as he had committed no offense. Gale urged Plaintiff to lie about the incident, suggesting that Plaintiff file a report stating that he had voluntarily gone to the station as part of the fire investigation. While driving Plaintiff back to the fire scene, Gale urged Plaintiff to participate in a cover-up and offered to purchase alcohol for him in exchange. Plaintiff refused these offers. The following morning, Plaintiff received a police report from Gale, prepared by defendants Ramos and Gonzalez, which falsely indicated that the property damage caused by the fire was minimal and that Plaintiff's presence in the District 17 station was voluntary.
Nearly two years later, on August 10, 2010, Plaintiff filed a pro se complaint under 42 U.S.C. § 1983, alleging violations of his constitutional rights by named individual defendants Ramos, Norberg, Gale, John Doe, Jane Doe, and a "Sergeant Crawford." Plaintiff alleged that "Jane Doe" was the officer working with Ramos from whom Plaintiff originally requested the property damage report. Plaintiff alleged that "Sergeant Crawford" was the police supervisor whom Plaintiff summoned to the scene after Ramos and "Jane Doe" refused to prepare the property damage report. Plaintiff subsequently attempted to serve defendants through the Chicago Police Department. The Department was unable to serve Jane Doe and Sergeant Crawford, so on August 28 -- more than one week after the two-year anniversary of the incident -- Plaintiff provided the "star" (or badge) numbers of both officers and indicated that "'C. Gonzalez' on the [original police] report [for the incident] is likely the 'Jane Doe' identified in the Complaint." [32, at 10.]
On October 27, 2010, Plaintiff filed a first amended complaint , changing defendant "Jane Doe" to "Officer Gonzalez." Plaintiff claimed that at the time the original complaint was filed, he was unsure of Officer Gonzalez's name, and thus referred to her as "Jane Doe." Defendants have moved to dismiss Plaintiff's claim against Officer Gonzalez, arguing that the amendment is barred by the two-year statute of limitations applicable to Plaintiff's § 1983 claims. [21.]
On January 12, 2011, Plaintiff filed a motion for leave to file a second amended complaint , pursuant to Rule 15(c), that changes the name of defendant "Sergeant Crawford" to "Sergeant Kaupert." Plaintiff claims that Kaupert was not wearing a name tag at the time of the incident and that when Plaintiff twice asked Kaupert his name in the midst of the altercation, Plaintiff misheard the response to be "Crawford" rather than "Kaupert." Plaintiff discovered the correct spelling through Defendants' Rule 26 disclosures. Defendants argue that Plaintiff should be denied leave to file the second amended complaint because the amendment is beyond the two-year limitations period and thus time-barred.
On a Motion to Dismiss and Motion for Leave to File an Amended Complaint A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the case. See Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). To survive a Rule 12(b)(6) motion to dismiss, the complaint first must comply with Rule 8(a) by providing "a short and plain statement of the claim showing that the pleader is entitled to relief" (Fed. R. Civ. P. 8(a)(2)), such that the defendant is given "fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the "speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Twombly, 550 U.S. at 555). "Detailed factual allegations" are not required, but the plaintiff must allege facts that, when "accepted as true, * * * 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. The Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Barnes v. Briley, 420 F.3d 673, 677 (7th Cir. 2005).
A plaintiff's failure to adhere to a statute of limitations is an affirmative defense and therefore generally is not amenable to dismissal under Rule 12(b)(6) at the complaint stage. United States v. Lewis, 411 F.3d 838, 842 (7th Cir. 2005). However, dismissal under Rule 12(b)(6) is appropriate when a plaintiff pleads himself out of court by establishing that a defendant is entitled to a limitation's defense. Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671, 675 (7th Cir. 2009) (dismissal appropriate where it is "clear from the face of the amended complaint that it [was] hopelessly time-barred"); U.S. Gypsum Co. v. Ind. Gas Co., Inc., 350 F.2d 623, 626 (7th Cir. 2003)("A litigant may plead itself out of court by alleging (and thus admitting) the ingredients of a defense").
Federal Rule of Civil Procedure 15(a) instructs a district court to freely grant parties leave to amend when justice so requires. Fed. R. Civ. P. 15(a); see also Sound of Music Co v. Minnesota Mining & Mfg. Co., 477 F.3d 910, 922 (7th Cir. 2007) (quoting Park v. City of Chicago, 297 F.3d 606, 612 (7th Cir. 2002)). A district court may deny a motion for leave to amend, however, if the amendment would be futile. Sound of Music Co., 477 F.3d at 922. A new claim is considered futile if it would not withstand a Rule 12(b)(6) motion to dismiss. See Vargas-Harrison v. Racine Unified Sch. Dist., 272 F.3d 964, 974-975 (7th Cir. 2001). For instance, if a proposed amended complaint is filed after the period of limitations has run, and does not relate back to the date of the original complaint pursuant to the requirements of Rule 15(c), the amended complaint would be time-barred and could not, as a matter of law, withstand a motion to dismiss. Id. A court may then deny the motion for leave to amend as futile. Id.
Rule 15(c)(1) allows amendment to a pleading that would otherwise ...