United States District Court, S.D. Indiana, Terre Haute Division
ORDER DENYING MOTIONS FOR LEAVE TO FILE AMENDED
Patrick Hanlon United States District Judge
Randeep Singh Mann filed this Bivens action on April
11, 2018, raising claims of failure to protect and
retaliation based on an attack he suffered on April 21, 2016.
Mr. Mann filed an amended complaint on April 23, 2019.
before the Court are Mr. Mann's July 17, 2019, and August
15, 2019, motions to file a second amended complaint. Dkt.
49; dkt. 54. The proposed second amended complaint attached
to each motion is identical. The defendants have objected to
both motions, arguing that the proposed second amended
complaint is futile because it seeks to add untimely claims
against previously unnamed defendants. Dkt. 50; dkt. 55. Mr.
Mann has not filed a reply. For the reasons below, Mr.
Mann's motions for leave to amend are
DENIED. Dkt. ; dkt. .
court should freely give leave [to amend] when justice so
requires.” Id. But when the deadline for
amending a pleading has passed, a party must show “good
cause” for the late amendment. Arrigo v. Link,
836 F.3d 787, 797 (7th Cir. 2016); see Fed. R. Civ.
P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge's consent.”). “In
making a Rule 16(b) good-cause determination, the primary
consideration for district courts is the diligence of the
party seeking amendment.” Alioto v. Town of
Lisbon, 651 F.3d 715, 720 (7th Cir. 2011). No matter the
timing, a district court has broad discretion to deny leave
to amend where amendment would be futile.
Gonzalez-Koeneke v. West, 791 F.3d 801, 807 (7th
The Proposed Second Amended Complaint
proposed second amended complaint names seven defendants who
are named in the now-operative amended complaint: (1) Warden
Charles Daniels, (2) Lieutenant Tussey, (3) Officer R.
Starnes, (4) Officer K. Arnett, (5) Officer J. Hayden, (6)
Officer Sherman, and (7) Officer Thomas. The proposed second
amended complaint raises failure to protect claims against
Warden Daniels, Lieutenant Tussey, Officer Starnes, Officer
Arnett, and Officer Hayden, as well as retaliation claims
against Officer Sherman and Officer Thomas. These claims are
all proceeding in the amended complaint.
proposed second amended complaint also names four previously
unnamed defendants (Officer Collins, Case Manager Jensen,
Officer Shipman, and Officer Monnett), plus one defendant who
was named in the original complaint but dismissed at
screening (Unit Manager Royer). Mr. Mann alleges that Officer
Collins failed to protect him during the April 21, 2016
attack and that Unit Manager Royer, Case Manager Jensen,
Officer Shipman, and Officer Monnett retaliated against him
throughout 2016. See (dkt. 54-1 at 9 (“My
harassment continued to the very end, when I was in the SHU
Dec 2016 pending transfer.”).
statute of limitations for Bivens claims against
federal officers is the same as for § 1983 actions
against state officers: both periods are borrowed from the
state in which the alleged injury occurred.” Cesal
v. Moats, 851 F.3d 714, 721-22 (7th Cir. 2017). In
Indiana, personal injury claims must be brought within two
years. Ind. Code § 34-11-2-4; see also Richards v.
Mitcheff, 696 F.3d 635, 637 (7th Cir. 2012). That two
years begins to run “when the plaintiff knows or should
know that his or her constitutional rights have been
violated.” Savory v. Lyons, 469 F.3d 667, 672
(7th Cir. 2006); see also Serino v. Hensley, 735
F.3d 588, 590 (7th Cir. 2013) (federal law determines when
limitations period begins to run).
Mann's failure to protect claim accrued on April 21,
2016, when he alleges that the defendants failed to intervene
during an attack from his cellmate. His retaliation claims
accrued, at the latest, in December 2016. He did not move for
leave to file the proposed second amended complaint until
July 17, 2019, outside the limitations period for these
claims. Any claims in the proposed second amended complaint
are therefore untimely unless they relate back to the
original complaint. See Fed. R. Civ. P. 15(c).
as here, an amendment names a new defendant, the amendment
relates back only if the defendant “(i) received such
notice of the action that it will not be prejudiced in
defending on the merits; and (ii) knew or should have known
that the action would have been brought against it, but for a
mistake concerning the proper party's identity.”
Fed.R.Civ.P. 15(c)(1)(C). “A plaintiff's lack of
knowledge about a defendant's identity is not a
‘mistake' within the meaning of Federal Rule of
Civil Procedure 15(c) such that the plaintiff could amend his
complaint outside the statute of limitations period upon
learning the defendant's identity.” Gomez v.
Randle, 680 F.3d 859, 864 n.1 (7th Cir. 2012).
Mann's proposed claims do not relate back under Rule
15(c)(1)(C). Indeed, Mr. Mann does not argue for relation
back. He instead argues that the other defendants' late
initial disclosures in this action prevented him from filing
a timely amendment. Dkt. 54. But the defendants' initial
disclosures were not due until March 29, 2019, dkt. 22 at 1,
after the limitations period had already run. If Mr. Mann had
not waited more than 23 months from the alleged attack before
filing this action, he likely would have had time to amend
his complaint and add additional defendants. He cannot blame
the defendants for his untimely proposed amendment.
Mr. Mann's new proposed claims are untimely and do not
relate back to any timely complaint, his proposed amendment
is futile and his motions for ...