The opinion of the court was delivered by: Hillman, District Judge
In this case involving claims of excessive force by law enforcement officers, presently before the Court is the motion of defendants, the Camden County Prosecutor's Office, Peter Longo, and Thomas DiNunzio, to dismiss plaintiffs' complaint against them. For the reasons expressed below, defendants' motion will be granted in part and denied in part.
Plaintiffs' complaint relates the following: On April 22, 2009, in Camden, New Jersey, Jorge E. Rivera was sitting outside with friends. Police officers approached the group, Rivera's friends ran away, but Rivera remained seated. While Rivera attempted to swallow a small plastic bag, the officers grabbed Rivera, shoved him to the ground, and kicked him. After they handcuffed and restrained him, the officers continued to kick and punch Rivera on his head and body. During this encounter, Rivera began to choke on the bag, which had become lodged in his throat. The officers knew he was choking and unable to breathe, but they continued to beat him. Even after he slumped over unconscious, the officers continued their attack. Because of a gathering crowd, the officers finally halted their attack and sent Rivera to Cooper University Hospital. He was pronounced dead upon arrival. Rivera's cause of death was asphyxiation from the plastic bag in his throat.
Plaintiff, Maria Ortiz, is the administrator of Rivera's estate, and she is the mother of plaintiff, J.R., who is Rivera's minor son. Plaintiffs claim that the defendants' use of excessive force on Rivera caused him to asphyxiate on the plastic bag, in addition to his suffering from their physical assault prior to becoming unconscious. They have brought claims for violations of Rivera's civil rights under federal and state law, as well as for assault and battery and wrongful death.
Over the course of three amended complaints, plaintiffs have advanced their claims against the City of Camden, the New Jersey State Police, New Jersey State Trooper Dennis Quinn, the Camden County Prosecutor's Office, and two investigators for the prosecutor's office, Peter Longo and Thomas DiNunzio. The Camden County Prosecutor's Office, Longo, and DiNunzio have moved to dismiss plaintiffs' claims against them. The prosecutor's office has moved to dismiss plaintiffs' claims against it because it is immune from suit under the principles of sovereign immunity. Plaintiffs do not dispute that their claims against the prosecutor's office, as well as claims against Longo and DiNunzio in their official capacities, should be dismissed on that basis. Plaintiffs do dispute, however, Longo and DiNunzio's motion to dismiss their claims because of plaintiffs' failure to properly serve them, and because of plaintiffs' failure to assert claims against them within the applicable statue of limitations. Plaintiffs argue that they properly served Longo and DiNunzio, and that their complaint is not barred by the running of the applicable statute of limitations.
Plaintiffs have brought their claims pursuant to 42 U.S.C. § 1983, as well as pursuant to the New Jersey constitution and New Jersey state law. This Court has jurisdiction over plaintiffs' federal claims under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiffs' state law claims under 28 U.S.C. § 1367.
Plaintiffs' original complaint, filed on April 22, 2011, named as defendants the City of Camden and "John Does #1 & #2 in their individual and official capacities." Their first amended complaint was filed on June 10, 2011, and it did not add any new parties. On October 26, 2011, plaintiff's motion to file a second amended complaint was granted, and that complaint added the New Jersey State Police as a defendant.
On June 27, 2012, plaintiffs filed a third amended complaint, without leave of court, and added the Camden County Prosecutor's Office, Peter Longo, and Thomas DiNunzio as defendants.*fn1 After plaintiffs attempted to obtain a default judgment against the Camden County defendants for their failure to respond to the third amended complaint, on August 22, 2012, counsel entered an appearance on their behalf, and filed a motion to set aside the Clerk's entry of default. Through conferences with the Magistrate Judge, on October 23, 2012, it was agreed that the default would be set aside, the third amended complaint deemed to have been filed on June 27, 2012, and the Camden County defendants would have 30 days to respond to the complaint.
The Camden County defendants have moved to dismiss plaintiffs' complaint against them on two grounds.*fn2 First, defendants argue that plaintiffs' claims against them must be dismissed because plaintiffs never properly served them with their complaint. Second, defendants argue that they were not named as defendants until a year and two months after the expiration of the statute of limitations, and that plaintiffs' claims cannot be saved by the fictitious party practice rule or the relation back rule.
Plaintiffs do not dispute that a two-year statute of limitations governs their claims, and that the statute of limitations ran on April 23, 2011. See Cowell v. Palmer Twp., 263 F.3d 286, 291 (3d Cir. 2001) (noting § 1983 actions in ...