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August 3, 1995


The opinion of the court was delivered by: JOEL B. ROSEN

 ROSEN, United States Magistrate Judge

 Presently before the court is the motion of Lorraine A. DiCintio, Esquire, attorney for the plaintiff, Juan Anthony Cruz, for leave pursuant to Fed. R. Civ. P. 15 to amend the complaint to add new causes of action against "John Doe" defendants and against newly named defendants. After careful consideration of the party's submissions, and after further consideration of the oral argument conducted on the record on June 30, 1995, and for the reasons noted below, the plaintiff's motion shall be granted in part and denied in part.


 This is a civil rights action filed by the plaintiff, Juan Anthony Cruz, against the City of Camden, County of Camden, Camden County Sheriff's Department, City of Camden Police Department, and numerous John Does. It is alleged that the plaintiff's civil rights were violated when the defendants subjected him to wrongful arrest and incarceration.

 As the plaintiff was about to board a train, he was stopped again by a PATCO police officer who claimed that the plaintiff was George Lopez and that there was an outstanding warrant from the City of Camden for his arrest. Despite plaintiff's protests that the warrant was actually for his younger brother, George Lopez, he was arrested by the PATCO officers and taken to the Camden County Correctional Facility (hereinafter "Facility").

 Upon arriving at the Facility, the arresting PATCO officer notified a corrections officer of the plaintiff's misidentification claim. Despite his protestations, the plaintiff was processed at the Facility. While detained, he claims that the correction officers subjected him to an unlawful strip and body cavity search. He contends that each day during his incarceration he wrote to the Warden and routinely spoke to corrections officers advising them that there was a misidentification. *fn1"

 While incarcerated, the plaintiff allegedly slipped and fell on a shower floor and injured his finger. The plaintiff asserts that he reported the injury to a corrections officer and followed up this complaint with a note to the Warden. He claims that he received no medical treatment for his injury during his incarceration.

 Plaintiff also contends that while incarcerated, he witnessed violent attacks by other prisoners. He alleges that the corrections officers delayed trying to stop the acts of violence and, as a result, plaintiff claims that he feared for his life. On the fifth day of his incarceration, he was released.

 On August 5, 1993 the plaintiff, through his attorney Lorraine DiCintio, Esquire, filed the original action alleging that the defendants violated his constitutional rights pursuant to 42 U.S.C. § 1983. He asserts that the defendants failed to take adequate and timely steps to ascertain his true identity and as a result he was wrongfully arrested and incarcerated. Additionally, the plaintiff alleges that he was denied adequate medical treatment while in jail.

 The following defendants were named in the original complaint: *fn2" (1) City of Camden; (2) County of Camden; (3) William Simon, Sheriff of Camden County; (4) Port Authority Transit Corporation (PATCO); (5) City of Camden Police Department; (6) John Doe 1, Jail Administrator of Camden County; (7) John Doe 2, Warden of Camden County; (8) John Does 3 and 4, PATCO Police Officers; (9) John Does 5-10, Camden County Jail Corrections Officers; (10) John Does 11-15, Camden City Police Officers; and (11) John Does 16-25 Camden County Freeholders.

 On December 23, 1994, the plaintiff filed a motion to amend the complaint. On January 20, 1995, I denied the plaintiff's motion as untimely since the trial was set to commence on February 14, 1995 before Judge Brotman, United States District Judge. However, Judge Brotman adjourned the trial date. In fairness to the plaintiff, I permitted him to re-file his motion so that the court could examine the merits of the motion rather than denying the application on procedural grounds.

 Accordingly, the plaintiff filed the instant motion on April 11, 1995. The plaintiff alleges that two key depositions were taken in March 1994. He contends that relevant information was discovered from these depositions that implicated new defendants and raised different causes of action.

 Plaintiff now seeks to amend the complaint to add the following new defendants whose wrongdoing allegedly were not discovered until the commencement of the depositions in March 1994: (1) Daniel John McHugh, Sheriff's Officer, Camden County Sheriff's Department; (2) Fulton Sampona, Sheriff's Officer, Camden County Sheriff's Department; and (3) Edward V. Michalak, Jr., Undersheriff, Camden County Sheriff's Department.

 In his original Complaint the plaintiff named six John Doe defendants, John Does 5-10, Camden County Jail Corrections Officers, and described them as employees of the County of Camden and the Camden County Jail "who were responsible for the safekeeping and supervision of the prisoners and detainees, including the plaintiff." (Compl. at P 12). The plaintiff also named as a defendant, John Doe 2, Warden Camden County. The plaintiff now seeks to amend the complaint to name with specificity these defendants. They are: (1) William C. Strang, Warden, Camden County Correctional Facility; (2) Captain Joseph Petruzzi, Supervisor of Admissions, Camden County Correctional Facility; (3) Durwin Pearson, Corrections Officer, Camden County Correctional Facility; (4) Brian Belcher, Corrections Officer, Camden County Facility; (5) Craig Vines, Corrections Officer, Camden County Correctional Facility; (6) John R. Zindel, Sergeant in Admissions, Camden County Correctional Facility.

 With respect to the "John Does" mentioned above, the plaintiff specifically seeks to name Pearson and Belcher as the officers who allegedly performed a strip search of the plaintiff. (Pl.'s Ex. J, P 28, P 29). Plaintiff also seeks to add Zindel, Petruzzi and Vines as defendants for their alleged respective roles in the misidentification and strip search. Zindel, as Sergeant in the admissions section of the Facility was responsible for training and supervising the corrections officers assigned to Admissions. Petruzzi, as Supervisor of Admissions was allegedly responsible for ensuring that proper procedures were followed for claims of misidentification. Vines as officer on duty in the Admissions booth was allegedly told of the misidentification claim but took no action.

 Plaintiff also seeks to specifically name "John Doe" defendants who were described in the original complaint as John Does 11-15, Camden City Police Officers. He seeks to name these defendants as Coley Barbee and Walter Arthur. *fn3" Both Arthur and Barbee are Detectives of the Camden Police Department. Defendant Arthur was responsible for the original arrest of George Lopez, the plaintiff's brother. Defendant Barbee was the detective assigned to the investigation. Plaintiff alleges that Barbee and Arthur immediately learned through a computer check that Lopez was using an alias and failed to process Lopez on a juvenile complaint and correct his date of birth on the new arrest records. Plaintiff alleges this led to an indictment and bench warrant in the name of Juan A. Cruz.

 Plaintiff also seeks to amend the complaint to add alternative theories of liability. He claims false imprisonment against: (1) McHugh; (2) Sampona; (3) Pearson; (4) Belcher; (5) Vines; (6) Zindel; (7) Simon; (8) Strang; (9) and Petruzzi. He asserts a claim of negligence against: (1) McHugh; (2) Sampona; (3) Barbee; (4) Arthur; (5) Michalak; (6) Strang; (7) Simon; (8) Vines; (9) Zindel; (10) Petruzzi; (11) Pearson; and (12) Belcher. He also asserts a claim of assault and battery against: (1) Pearson and (2) Belcher. Lastly, plaintiff asserts a claim of intentional infliction of emotional distress against: (1) Pearson and (2) Belcher.

 My discussion will analyze every defendant and each separate cause of action the plaintiff seeks to add. First my analysis will set forth the relevant law relating to amending the complaint.


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

 The Federal Rules of Civil Procedure encourage and provide for a liberal policy for amending pleadings. Under Fed. R. Civ. P. 15(a), leave to amend pleadings shall be freely given when justice so requires. In Foman v. Davis, 371 U.S. 178, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962), the Supreme Court articulated the liberal policy of allowing amendments underlying Rule 15(a) as follows:

If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or undeclared reasons -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.' Id. at 182.

 Under the Foman standard, leave to amend may be denied where there is "undue delay, bad faith or dilatory motive . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Id. The Third Circuit has elaborated on the proper analysis to apply:

The trial court's discretion under Rule 15, however, must be tempered by considerations of prejudice to the non-moving party, for undue prejudice is 'the touchstone for the denial of leave to amend. ' . . In the absence of substantial or undue prejudice, denial must be grounded in bad faith or dilatory motives, truly undue or unexplained delay, repeated failure to cure deficiency by amendments previously allowed or futility of amendment.

 Heyl & Patterson International, Inc. v. F.D. Rich Housing of the Virgin Islands, 663 F.2d 419, 425 (3d Cir. 1981), citing Cornell & Co., Inc. v. Occupational Safety and Health Review Comm'n, 573 F.2d 820, 823 (3d Cir. 1978). However, in the present case more than Rule 15(a) is implicated. To evaluate whether or not the proposed amendment should be permitted, I must also look to Rule 15(c) which governs the relation back of proposed amendments.

 To determine which rule is applicable, the analysis must draw a distinction between the two types of proposed defendants sought to be added in the amended complaint: (a) those who were named as "John Doe" in the original complaint, and (b) those who were not named at all in the original complaint and are now sought to be added as entirely new defendants. For the "John Doe" defendants, the plaintiff contends that the amendment should be granted despite the running of the statute of limitations. He asserts that the relation back provision of Fed. R. Civ. P. 15(c) permits the claim to relate back to the date of the filing of the original complaint.

 As to the entirely new defendants not named in the original complaint as John Does, the plaintiff claims that his causes of action were timely filed and within the statute of limitations period. Thus, he contends that there is no statute of limitations problem and the court should permit the amendment solely pursuant to Fed. R. Civ. P. 15(a). I will first address the plaintiff's Rule 15(c) argument in relation to the "John Doe" defendants.


 Proposed "John Doe" Defendants: Strang, Pearson, Belcher, Petruzzi, Vines and Zindel

 Fed. R. Civ. P. 15(c) governs the relation back of amended complaints. The plaintiff's motion seeks to amend the complaint by replacing a "John Doe" caption with the newly named defendants' real names. Replacing a "John Doe" caption with the newly named defendants' correct names amounts to "changing a party" within the meaning of Rule 15(c). See Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 174 (3d Cir. 1977). Therefore, in deciding whether an amendment will relate back, the court must look to Rule 15(c) and determine whether all of the requirements of the Rule are satisfied. These requirements are:

(1) relation back is permitted by the law that provides the statute of limitations applicable to the action;
(2) the basic claim must have arisen out of the conduct, transaction, or occurrence set forth in the original pleading;
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by Rule 4(m) for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining its defense and (B) the party must or should have known that, but for a mistake concerning identity, the action would have been brought against it. *fn4"

 Plaintiff's motion as to the "John Doe" defendants presents three issues. First, whether the John Doe descriptions in the original complaint were sufficient to place the proposed defendants on notice to allow the relation back of the amendment as provided under Fed. R. Civ. P. 15(c)(1). Second, whether the proposed defendants received actual notice of the action within a 120 day period such that they will not be prejudiced in maintaining a defense as provided under Fed. R. Civ. P. 15(c)(3)(A). Third, whether the plaintiff has satisfied the notice requirements of Fed. R. Civ. P. 15(c)(3)(B), which requires him to show that the defendants "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." *fn5"

 1. Timeliness of the Complaint

 The parties agree that the two year New Jersey limitation governs the § 1983 actions since the statute of limitations is determined by borrowing the state's general or residual statute for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938, (1985); Callwood v. Questel, 883 F.2d 272 (3d Cir. 1989). Therefore, to satisfy the statute of limitations a complaint must be filed within two years of the cause of action. Under New Jersey law, the cause of action is deemed to accrue for statute of limitations purposes when the potential plaintiff knows of his or her injuries and of facts sufficient to attribute those injuries to the fault of another. Viviano v. CBS, Inc., 101 N.J. 538, 546, 503 A.2d 296, (1986). See also PBA Local No. 38 v. Woodbridge Police Dept., 832 F. Supp. 808, 817 n.4 (D.N.J. 1993). Federal law is in accord. See Keystone Ins. Co. v. Houghton, 863 F.2d 1125 ...

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