Alford T. FORD, et al., Plaintiffs,
v.
Isaiah HILL, et al., Defendants.
Civ. A. No. 93-333.
United States District Court,
E.D. Kentucky,
London Division.
Jan. 18, 1995.
OPINION AND ORDER
BERTELSMAN, Chief Judge:
Plaintiffs initiated this civil rights action pursuant to 42 U.S.C. §
1983. Alford T. Ford, Jr.,
plaintiffs' son, sustained a fatal gunshot wound during an arrest. Mr.
and Mrs. Ford allege
claims both individually and on behalf of the decedent's estate. This matter
is before the court
for consideration of defendants' motions to dismiss (doc. # 10, # 15 and
# 17).
I. FACTUAL BACKGROUND
On December 2, 1992, plaintiff Alford T. Ford, Sr. called the Cumberland
Police Department
to lodge a complaint against his son, Alford T. Ford, Jr., for "terroristic
threatening."
Cumberland police officers came to Alford T. Ford, Sr.'s home to serve
the arrest warrant.
Upon arriving at the Ford home, the officers saw Alford T. Ford, Jr. exit
a truck and attempt
to enter his parents' home. Defendant Hill, a police officer, physically
restrained the younger
Mr. Ford to prevent him from entering the Ford home. Mr. Ford, Jr. pulled
a gun from his
pocket. Officer Hill threatened to shoot the younger Ford if he did not
drop the gun. Mr. Ford,
Jr. then discharged the firearm into the air and hid in his parents' carport.
The Harlan County Sheriff's Department, the Cumberland Police Department,
the Kentucky
State Police Special Response Team, the Lynch Police Department and the
Benham Police
Department dispatched officers to the scene. After a lengthy stand-off,
officers, under the
direction of defendant Provence, "rushed" Mr. Ford, Jr., shooting him five
times at point blank
range. Mrs. Ford was knocked to the ground during the altercation.
The younger Mr. Ford died as a result of the gunshot wounds. Defendant
police officers Hill,
Provence and Crafton arrested Mr. and Mrs. Ford for first degree wanton
endangerment. The
prosecutor ultimately dismissed the criminal charges against Mr. and Mrs.
Ford.
Mr. Ford, Sr., as executor of Alford T. Ford, Jr.'s estate, alleges that
Mr. Ford, Jr. was
wrongfully arrested and that excessive force was utilized in making the
arrest. Mr. and Mrs.
Ford allege individually that they were wrongfully arrested, that excessive
force was used in
arresting them and that they have been damaged as a result of the excessive
force used against
their son.
Plaintiffs filed their initial complaint on December 2, 1993, naming the
Kentucky State Police
and "individuals (who are Kentucky State Troopers) whose identity is unknown
to the
Plaintiffs" as Defendants. See doc. # 1. On May 17, 1994, this court granted
the Kentucky
State Police Department's motion to dismiss, and ordered Plaintiffs to
"identify the unknown
defendants, file an Amended Complaint, and serve said individuals with
process" by July 13,
1994. Doc. # 8.
On July 11, 1994, Plaintiffs filed an amended complaint naming officers
Hill, Provence and
Crafton as defendants. Doc. # 9. In the amended complaint, plaintiffs allege
claims against
defendant Provence as the supervising officer on the scene. Their original
complaint contained
no allegations against any officer for supervisory actions.
Defendants now move to dismiss plaintiffs' claims as barred by the statute of limitations.
II. ANALYSIS
A. Claims Made on Behalf of the Decedent's Estate are Not Barred by the
Statute of
Limitations
Plaintiffs have alleged civil rights claims pursuant to 42 U.S.C. §
1983 on their own behalf as
well as on behalf of Alford Ford, Jr.'s estate. Because Congress has not
established the statute
of limitations applicable to § 1983 claims, courts must apply the
general statute for personal
injury actions provided by the law of the state in which the court sits.
Owens v. Okure, 488
U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989); Wilson v. Garcia, 471
U.S. 261, 105
S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Kentucky, § 1983 actions are
governed by the
one-year statute of limitations contained in Kentucky Revised Statute 413.140.
Collard v.
Kentucky Board of Nursing, 896 F.2d 179 (6th Cir.1990). In applying this
statute of
limitations, the court must follow any applicable Kentucky tolling provisions.
Wilson v. Garcia,
471 U.S. 261, 269, 105 S.Ct. 1938, 1943, 85 L.Ed.2d 254 (1985); Wilson
v. Giesen, 956
F.2d 738, 740 (7th Cir.1992).
KRS 413.180 provides the tolling rules for actions initiated by a personal
representative on
behalf of a decedent for certain causes of action. It states, in part:
If a person entitled to bring
any action mentioned in KRS 413.090 to 413.160 dies before the expiration
of the time limited
for its commencement and the cause of action survives, the action may be
brought by his
personal representative after the expiration of that time, if commenced
within one year after the
qualification of the representative. KRS 413.180(1). Because § 1983
is a federal cause of
action, § 1983 is not among the statutes "mentioned in KRS 413.909
to 413.160." However,
the state statute of limitations applicable to § 1983 claims, KRS
413.140, is among the statutes
to which KRS 413.180 applies. Accordingly, the tolling rules contained
in KRS 413.180 are
applicable to § 1983 actions in Kentucky.1
Pursuant to KRS 413.180(1), if a personal representative is appointed to
represent an estate
before the statute of limitations expires on a cause of action, the personal
representative may
bring the cause of action within one year after his or her appointment.
See Conner v. George
W. Whitesides Co., 834 S.W.2d 652 (Ky.1992); see also Everley v. Wright,
872 S.W.2d 95
(Ky.App.1993). In this case, Alford Ford, Jr.'s cause of action accrued
on December 2,
1992, the day he was shot and killed. Alford Ford, Sr. was appointed as
the administrator of
Mr. Ford, Jr.'s estate on October 8, 1993. Therefore, under KRS 413.180(1),
Mr. Ford, Sr.
could initiate an action on behalf of Mr. Ford, Jr.'s estate on or before
October 8, 1994--one
year after the date of his appointment as administrator. Mr. Ford filed
the initial complaint on
December 2, 1993, and the amended complaint on July 11, 1994. Accordingly,
both the initial
complaint and the amended complaint were timely filed on behalf of Mr.
Ford, Jr.'s estate.
B. Mr. and Mrs. Ford's Individual Claims Against Defendants Hill, Crafton
and Provence are
Barred by the Applicable Statute of Limitations
As discussed above, § 1983 claims originating in Kentucky are governed
by the one-year
statute of limitations contained in KRS 413.140. Mr. Ford, Jr. was killed
on December 2,
1992. The Fords filed their original complaint, naming "John Doe(s)" as
defendants on
December 2, 1993, within the one-year statute of limitations. The Fords
amended their
complaint to state claims against defendants Ford, Crafton and Provence
on July 11,
1994--more than nineteen months after Mr. Ford, Jr.'s death. Therefore,
for the Fords to
maintain individual claims against defendants Ford, Crafton and Provence,
the amendments to
the complaint must relate back to the filing of the initial complaint under
Federal Rule of Civil
Procedure 15(c).
1. Defendant Provence
Four requirements must be satisfied for an amendment to relate back to
the date of the original
filing: (1) the claim sought to be amended arose out of the conduct or
occurrence alleged or
attempted to be alleged in the original complaint; (2) the party to be
added received such
notice that he will not be prejudiced in defending on the merits; (3) the
party to be added knew
or should have known that, but for a mistake concerning the identity of
the proper party, the
action would have been brought against him; and (4) the second and third
requirements were
satisfied within the period provided for service of the summons and complaint.
Fed.R.Civ.P.
15(c)(3).
In their original complaint, plaintiffs alleged the following: 11. After
several hours of no activity
and despite the pleading of the parents of the decedent to diffuse the
situation without violence,
the individual defendants rushed the decedent plaintiff, knocking Mrs.
Ella Mae Ford to the
ground, causing her injury and within the sight of Mrs. Ella Mae Ford,
the individual officers
took aim with their weapons, without legal justification, or provocation,
and willfully,
maliciously, and intentionally fired their weapons at Alford Ford, Jr.,
hitting him five times, at
point-blank range, causing his death. 12. After taking the life of Teddy
Ford, the individual
officers then took Mr. and Mrs. Ford into custody, alleging that the parents
of the decedent
had committed criminal acts, and in doing so, the defendant police officers
individually and
jointly employed excessive and unreasonable force against the person of
the plaintiff, Mrs. Ella
Mae Ford. Complaint, doc. # 1, paras. 11 and 12. The initial complaint
contained no
allegations concerning supervisory liability or improper supervision.
In the amended complaint (doc. # 9), Defendant Provence's name appears
in only one
paragraph: 12. The Harlan Sheriff's Department, the Cumberland Police Department
and the
Kentucky State Police Special Response Team, under the supervision of defendant
Jerry
Provence and including defendant David Crafton, sent back-up officers along
with the Lynch
Police Department and the Benham Police Department. Amended Complaint,
doc. # 9, para.
12. Although plaintiffs' amended complaint makes vague references to "other
State Police
Officers" in describing the events leading to Mr. Ford, Jr.'s death, it
appears that plaintiffs are
suing defendant Provence solely as the supervising officer on the scene--a
claim that was not
included in plaintiffs' original complaint.
Applying the Rule 15(c)(3) criteria, the claim did not arise out of the
conduct set forth in the
original complaint as plaintiffs set forth no facts concerning supervision
and appeared to make
no claim for inadequate or improper supervision in the original complaint.
Second, although
defendant Provence may have received notice sufficient to avoid prejudicing
him in preparing
his defense, he did not actually receive such notice until July of 1994--approximately
seven
months after the statute of limitations expired and more than four months
after the time for
service under Rule 4(m) expired. Third, as plaintiff pleaded very specific
facts that did not
include any allegations of supervisory liability, even if defendant Provence
had received notice
within the prescribed period, he would not know that, but for a mistake
concerning identity, the
action would have been brought against him.
For these reasons, plaintiffs' allegations of supervisory liability in
their amended complaint do
not relate back under Rule 15(c)(3), and are, therefore, barred by the
one-year statute of
limitations applicable to § 1983 actions in Kentucky. See Collard
v. Kentucky Board of
Nursing, 896 F.2d 179 (6th Cir.1990).
2. Defendants Hill and Crafton
The parties agree that plaintiffs' initial complaint contains the same
factual allegations against
two John Doe officers that have now been made against defendants Hill and
Crafton. The
parties further agree that plaintiff filed an amended complaint identifying
defendants Hill and
Crafton by name on July 11, 1994.
The issue, then, is whether naming an unknown or John Doe party can constitute
"a mistake
concerning the identity of the proper party" for purposes of relation back
under Rule 15(c)(3).
The First and Seventh Circuits have unequivocally concluded: Rule 15(c)(3)
"permits an
amendment to relate back only where there has been an error made concerning
the identity of
the proper party and where that party is chargeable with knowledge of the
mistake, but it does
not permit relation back where, as here, there is a lack of knowledge of
the proper party."
Wilson v. United States, 23 F.3d 559, 563 (1st Cir.1994) (quoting Worthington
v. Wilson, 8
F.3d 1253, 1256 (7th Cir.1993)) (emphasis in original). In Worthington,
the original complaint
named "unknown police officers." In Wilson, the original complaint correctly
named the
corporation plaintiff intended to name, but the corporation turned out
to be the wrong party.
The courts in both cases refused to permit relation back of an amendment
under Rule 15(c)(3).
In this case, plaintiffs initially lacked knowledge of the proper defendants
and elected to file
their complaint against "unknown officers." Because Rule 15(c)(3) applies
only where there has
been an error concerning the identity of the proper party rather than where,
as here, there is a
lack of knowledge of the proper party, the amended complaint in this case
does not relate
back to the filing of the initial complaint. Accordingly, plaintiffs' individual
claims against
defendants Crafton and Hill are barred by the one- year statute of limitations.
Therefore, the court being advised,
IT IS HEREBY ORDERED that the motions to dismiss filed by defendants Hill,
Crafton and
Provence (doc. # 10, # 15 and # 17) be, and they are, hereby granted as
to claims made by
Mr. and Mrs. Ford individually, but denied as to claims Mr. Ford, Sr. alleges
on behalf of Mr.
Ford, Jr.'s estate.
1In addition, the § 1983 action at
issue in this case is akin to a
wrongful death action under state law. Although the Kentucky
statute creating a cause of action for wrongful death is not among
the statutes to which KRS 413.180 expressly applies, the Kentucky
Supreme Court has specifically held that the tolling rules contained in
KRS 413.180 apply to wrongful death actions in Kentucky because
Kentucky wrongful death actions, like § 1983 actions brought in
Kentucky, are governed by the one-year personal injury statute of
limitations contained in KRS 413.140. Conner v. George W.
Whitesides Co., 834 S.W.2d 652 (Ky.1992).