IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Michael R. Smith, :

Plaintiff, :

v. : Case No. 2:10-cv-1184

 : JUDGE ALGENON L. MARBLEY

Gallia County Sheriff, et al., Magistrate Judge Kemp 

 

 Defendants. :

 

 OPINION AND ORDER

This civil rights case is before the Court to consider

plaintiff Michael R. Smith’s motion for leave to file an amended

complaint. The motion has been fully briefed. For the following

reasons, the motion will be granted in part and denied in part.

I. Background

Mr. Smith filed this action asserting claims under 42 U.S.C.

§1983 and a state law claim for the intentional infliction of

emotional distress arising out of his incarceration in the 

Gallia County Jail from December 30, 2008, through January 6,

2009. In his original complaint, Mr. Smith named as defendants

the Gallia County Sheriff’s Office and several of its employees

including Angela Shriver, Anthony Werry, and Kimberly Blackburn,

as well as John and Jane Doe defendants. He alleged that the

defendants failed to provide adequate security for him, resulting

in his being beaten by other inmates. Further, he claimed that

defendants failed to provide him with adequate medical care to

treat his injuries and failed to accommodate his inability to eat

solid food as a result of his injuries. 

In his motion for leave to amend, Mr. Smith seeks to add

twelve new defendants in both their individual and official

capacities and to name Gallia County Sheriff Joseph R. Browning

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in his individual and official capacities. He also proposes to

assert additional factual allegations relating to his §1983

claims including defendants’ failure to separate violent and

nonviolent offenders, the failure to follow Ohio Minimum Jail

Standards, and overcrowding of the Gallia County Jail. The

proposed amended complaint does not contain a claim for the

intentional infliction of emotional distress. 

The Gallia County defendants oppose the proposed amendments

on grounds of futility and prejudice. According to the

defendants, Mr. Smith’s proposed amendments are barred by the

statute of limitations and do not satisfy the requirements of

Fed.R.Civ.P. 15(c) for relation back to the original complaint.

In reply, Mr. Smith argues that the addition of new

defendants is proper under the “Imputed Knowledge Doctrine”

endorsed by the Sixth Circuit in Berndt v. State of Tennessee,

796 F.2d 879 (6th Cir. 1986). Further, he contends that the

additional factual allegations are proper because they arise out

of the same events set forth in the original complaint. 

II. Legal Standard 

Fed.R.Civ.P. 15(a)(2) states that when a party is required

to seek leave of court in order to file an amended pleading,

“[t]he court should freely give leave when justice so requires." 

The United States Court of Appeals for the Sixth Circuit has

spoken extensively on this standard, relying upon the decisions

of the United States Supreme Court in Foman v. Davis, 371 U.S.

178 (1962) and Zenith Radio Corp. v. Hazeltine Research, Inc.,

401 U.S. 321 (1971), decisions which give substantial meaning to

the "when justice so requires." In Foman, the Court indicated

that the rule is to be interpreted liberally, and that in the

absence of undue delay, bad faith, or dilatory motive on the part

of the party proposing an amendment, leave should be granted. In

Zenith Radio Corp., the Court indicated that mere delay, of

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itself, is not a reason to deny leave to amend, but delay coupled

with demonstrable prejudice either to the interests of the

opposing party or of the Court can justify such denial. 

 Expanding upon these decisions, the Court of Appeals has

noted that:

 [i]n determining what constitutes prejudice, the

 court considers whether the assertion of the new

 claim or defense would: require the opponent to

 expend significant additional resources to conduct

 discovery and prepare for trial; significantly

 delay the resolution of the dispute; or prevent

 the plaintiff from bringing a timely action in

 another jurisdiction.

Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citing

Tokio Marine & Fire Insurance Co. v. Employers Insurance of

Wausau, 786 F.2d 101, 103 (2d Cir. 1986)). See also Moore v.

City of Paducah, 790 F.2d 557 (6th Cir. 1986); Tefft v. Seward,

689 F.2d 637 (6th Cir. 1982). Stated differently, deciding if

any prejudice to the opposing party is “undue” requires the Court

to focus on, among other things, whether an amendment at any

stage of the litigation would make the case unduly complex and

confusing, see Duchon v. Cajon Co., 791 F.2d 43 (6th Cir. 1986)

(per curiam), and to ask if the defending party would have

conducted the defense in a substantially different manner had the

amendment been tendered previously. General Electric Co. v.

Sargent and Lundy, 916 F.2d 1119, 1130 (6th Cir. 1990); see also

Davis v. Therm-O-Disc, Inc., 791 F. Supp. 693 (N.D. Ohio 1992).

 The Sixth Circuit also has identified a number of additional

factors which the District Court must take into account in

determining whether to grant a motion for leave to file an

amended pleading. They include whether there has been a repeated

failure to cure deficiencies in the pleading, and whether the

amendment itself would be an exercise in futility. Robinson v.

Michigan Consolidated Gas Co., 918 F.2d 579 (6th Cir. 1990); Head

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v. Jellico Housing Authority, 870 F.2d 1117 (6th Cir. 1989). The

Court may also consider whether the matters contained in the

amended complaint could have been advanced previously so that the

disposition of the case would not have been disrupted by a later,

untimely amendment. Id. It is with these standards in mind that

the instant motion to amend will be decided.

III. Analysis

The Gallia County defendants have raised issues of prejudice

and futility in opposing Mr. Smith’s motion for leave to amend. 

Their primary argument, however, appears to be the futility of

the proposed amendments. A finding of futility will preclude the

need for the Court’s consideration of any prejudice to the Gallia

County defendants arising from Mr. Smith’s proposed amendments.

For these reasons, the Court will turn to the issue of futility

first.

 There is some conceptual difficulty presented when the

primary basis for a party’s opposition to the filing of an

amended pleading is that the pleading is futile, i.e. that it

fails to state a claim upon which relief can be granted. A

Magistrate Judge cannot ordinarily rule on a motion to dismiss,

see 28 U.S.C. §636(b)(1)(A), and denying a motion for leave to

amend on grounds that the proposed new claim is legally

insufficient is, at least indirectly, a ruling on the merits of

that claim.

At least where the claim is arguably sufficient, it is

usually a sound exercise of discretion to permit the claim to be

pleaded and to allow the merits of the claim to be tested before

the District Judge by way of a motion to dismiss. Even a

District Judge may choose to adopt this approach: “The trial

court has the discretion to grant a party leave to amend a

complaint, even where the amended pleading might ultimately be

dismissed.” Morse/Diesel, Inc. v. Fidelity and Deposit Co. of

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Md., 715 F.Supp. 578, 581 (S.D.N.Y. 1989). Consequently, rather

than determining the actual legal sufficiency of the new claim,

in many cases it will suffice to determine if there is a

substantial argument to be made on that question and, if so, to

allow the amended pleading to be filed with the understanding

that a motion to dismiss for failure to state a claim may follow. 

Here, however, the legal insufficiency of at least some of the

proposed amendments is readily apparent.

The focus of the Gallia County defendants’ futility argument

is that any claims asserted against the defendants whom Mr. Smith

wishes to add would be barred by the two-year statute of

limitations applicable to §1983 claims brought in Ohio. The

Gallia County defendants are correct that a two-year statute of

limitations applies to all of Mr. Smith’s claims. Consistent

with the Supreme Court’s holdings in Wilson v. Garcia, 471 U.S.

261, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) and Owens v. Okure,

488 U.S. 235, 109 S.Ct. 573, 102 L.Ed.2d 594 (1989), the Sixth

Circuit has held that the two-year limitations period set forth

in R.C. §2305.10 applies to §1983 actions brought in Ohio. 

Browning v. Pendleton, 869 F.2d 989, 991-992 (6th Cir. 1989);

Banks v. City of Whitehall, 344 F.3d 550, 553 (6th Cir. 2003). 

Further, the limitations period typically “begins to run when the

plaintiff knows or has reason to know of the injury which is the

basis of his action.” Kuhnle Bros. Inc. v. County of Geauga, 103

F.3d 516, 520 (6th Cir. 1997). The Gallia County defendants

contend that, from the face of the complaint, Mr. Smith had

knowledge of the events giving rise to his claim when they

occurred on December 30, 2008. Consequently, they assert that

the statute of limitations expired on or around December 30,

2010, nearly six months before Mr. Smith sought leave to amend

his complaint.

Mr. Smith does not dispute either the length of the

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applicable statute of limitations or that it began to run with

respect to his claims on December 30, 2008. Instead, Mr. Smith’s

argument, as set forth solely in his reply brief, appears to be

that under the “imputed knowledge doctrine” the statute of

limitations has not run with respect to the proposed new

defendants. Further, although not framed specifically in terms

of Fed.R.Civ.P. 15(c), Mr. Smith asserts that the new factual

allegations in the proposed amended complaint “arise out of the

same conduct transaction, or occurrence” identified in the

original complaint. In essence, Mr. Smith contends that his

proposed amended complaint is not futile because it relates back

to the original complaint. 

The issue of relation back was recently addressed at great

length by Judge Rice in DeBois v. Pickoff, 2011 WL 1233665 (S.D.

Ohio March 28, 2011). As explained by Judge Rice, when an

amended complaint is found to relate back, newly added defendants

or claims are included “as if they had been part of the case from

the beginning.” Id. citing Garvin v. City of Philadelphia, 354

F.3d 215, 220 (3d Cir. 2003). 

Fed.R.Civ. P.Rule 15(c) governs whether an amendment will

relate back, and provides as follows:

(1) When an Amendment Relates Back. An amendment

to a pleading relates back to the date of the original

pleading when:

(A) the law that provides the applicable statute of

limitations allows relation back;

(B) the amendment asserts a claim or defense that arose

out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original

pleading; or

(C) the amendment changes the party or the naming of

the party against whom a claim is asserted, if Rule

15(c)(1)(B) is satisfied and if, within the period

provided by Rule 4(m) for serving the summons and

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complaint, the party to be brought in by amendment

(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.

Further, the plaintiff bears the burden of demonstrating that the

requirements of Rule 15(c) have been met. DeBois, at *5 citing

Dodson v. Hillcrest Secs., 95 F.3d 52, 1996 WL 459770 (5th Cir.

July 24, 1996). 

In this case, neither Mr. Smith nor the Gallia County

defendants argue that there are any statutory grounds for

relation back as required by Rule 15 (c)(1)(A). Consequently,

the Court’s discussion will be limited to addressing whether Mr.

Smith’s proposed complaint meets the requirements of either

subsection 15(c)(1)(B) or (C). As made clear by its language,

“Rule 15(c)(1)(B) applies to an amendment that does not alter the

parties, and requires only that such an amendment assert a claim

or defense that arises out of the same ‘conduct transaction, or

occurrence set out—or attempted to be set out—in the original

pleading.’” DeBois, at *5. On the other hand, Rule 15(c)(1)(C)

addresses amendments seeking a change in parties or the naming of

parties. Id. In his proposed amended complaint, Mr. Smith seeks

to do both - to add factual allegations to his current claims and

name twelve new defendants as well as name the Gallia County

Sheriff in his individual and official capacities. Consequently,

Mr. Smith must satisfy the requirements of Rule 15(c)(1)(B) and

(C). However, as noted by Judge Rice in DeBois, “an attempt to

change parties would, by itself, require the same result, because

15(c)(1)(C) incorporates 15(c)(1)(B)'s requirement of continuity

in the ‘conduct transaction or occurrence’ set out in the two

pleadings.” Id., at *5.

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Consistent with the requirements of Rule 15, the Gallia

County defendants have differentiated between relation back of

the proposed new factual allegations and the proposed defendants. 

Accordingly, the Court will turn first to the issue presented by

Mr. Smith’s proposed factual allegations - whether the proposed

factual allegations arose out of the conduct, transaction, or

occurrence set out in the original complaint as required by Rule

15(c)(1)(B). As explained by the Court in DeBois, the Sixth

Circuit has provided guidance on the same “conduct, transaction

or occurrence” issue as follows. 

This court has stated that “the thrust of Rule 15 is

to reinforce the principle that cases ‘should be tried

on their merits rather than the technicalities of

pleadings.’ ” Moore v. Paducah, 790 F.2d 557, 559 (6th

Cir. 1986) (quoting Tefft v. Seward, 689 F.2d 637, 639

(6th Cir. 1982)). Thus, a court will permit a party to

add even a new legal theory in an amended pleading as

long as it arises out of the same transaction or

occurrence. See Hageman v. Signal L.P. Gas, Inc., 486

F.2d 479, 484 (6th Cir. 1973) (“where the parties are

the same, ... an amendment which adds another claim

arising out of the same transaction or occurrence does

relate back to the date of the original complaint.”);

Koon v. Lakeshore Contractors, 128 F.R.D. 650, 653

(W.D. Mich. 1988) (“an added theory of liability for

the same occurrence may relate back.” (citing

Haqeman)), aff'd without opinion, 486 F.2d 479, 889

F.2d 1087, (Table)1989 WL 137151 (6th Cir. Nov. 15,

1989); see also 6A Wright et al., Federal Practice and

Procedure § 1497, at 94–95, 98–99 (1990 & Supp. 2000)

(“an amendment that states an entirely new claim for

relief will relate back as long as it satisfies the

test embodied in ... Rule 15(c).”). Likewise, “an

amendment that alleges added events leading up to the

same injury may relate back.” Koon, 128 F.R.D. at 653

(citing Tiller v. Atlantic Coast Line R. Co., 323 U.S.

574, 581, 65 S.Ct. 421, 89 L.Ed. 465 (1945)).

Id. at *7 quoting Miller v. American Heavy Lift Shipping, 231

F.3d 242, 249 (6th Cir. 2000). Further, the Sixth Circuit has

explained that, “‘when applying this standard to the facts of a

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given case, we give meaning to those terms ‘not by generic or

ideal notions of what constitutes a ‘conduct, transaction, or

occurrence,’ but instead by asking whether the party asserting

the statute of limitations defense had been placed on notice that

he could be called to answer for the allegations in the amended

pleading.’” DeBois, at *7 quoting Hall v. Spencer County

Kentucky, 583 F.3d 930, 934 (6th Cir. 2009)(internal citation

omitted).

Mr. Smith’s proposed new and additional factual allegations

are found primarily in paragraphs 48, 55, and 56 of his proposed

amended complaint. These allegations relate to a violation of

Mr. Smith’s civil rights under §1983 as a result of the failure

to separate Mr. Smith from violent inmates, the failure to follow

jail policies and procedures, and violations of Ohio’s Minimum

Jail Standards as a result of overcrowding at the Gallia County

Jail. Neither party sets forth detailed argument with respect to

the proposed amendment to include these allegations. Mr. Smith’s

argument can best be summarized as asserting that this conduct

was occurring during the time period of his incarceration and

that the Gallia County defendants had to have been aware of such

unlawful conduct, and that, therefore, the allegations relate

back. In response, the Gallia County defendants make the

circular argument that these new allegations would not relate

back because the statute of limitations has expired. They also

suggest, although it appears to be in connection with an

assertion of prejudice, that they were not given adequate notice

of the matters set forth in the amended complaint. 

Mr. Smith’s original complaint and the proposed amended

complaint “are based on the same nexus of facts and actions as

the original complaint” as they both allege violations of Mr.

Smith’s constitutional rights under §1983 arising from the

conditions of the Gallia County Jail during Mr. Smith’s

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incarceration in December, 2008. Hall, 583 F.3d, at 934. While

the allegations in the amended complaint may be somewhat

different, any defendant would be on notice that the issue was

the treatment and conditions Mr. Smith endured while an inmate in

the Gallia County Jail. As the Seventh Circuit explained in

Santamarina v. Sears, Roebuck & Co., 466 F.3d 570, 573 (7th Cir.

2006) “[t]he criterion of relation back is whether the original

complaint gave the defendant enough notice of the nature and

scope of the plaintiff’s claim that he shouldn’t have been

surprised by the amplification of the allegations of the original

complaint in the amended one.” Keeping in mind the Sixth

Circuit’s instruction that Rule 15 is to be construed with

“liberality instead of technicality,” see Miller, 231 F.3d at

248, the Court believes that the Seventh Circuit’s explanation

fittingly describes the situation presented here. As a result,

the Court finds that Mr. Smith sufficiently has argued that the

requirements of Rule 15(c)(1)(B) are satisfied with respect to

the additional factual allegations set forth in his proposed

amended complaint. Consequently, the motion for leave to amend,

to the extent it seeks to include additional factual allegations,

will not be denied on grounds of futility. 

The Court will now turn to the issue of Mr. Smith’s proposal

to add additional defendants. As noted above, in addition to the

same transaction or occurrence requirement, a plaintiff seeking

to change the defendants to be sued must show that the

requirements of Rule 15(c)(1)(C) are satisfied. DeBois, at *8.

The Supreme Court has set forth the following criteria for

relation back where there is a change in parties:

Relation back is dependent upon four factors, all of which

must be satisfied: (1) the basic claim must have arisen out

of the conduct set forth in the original pleading; (2) the

party to be brought in must have received such notice that

it will not be prejudiced in maintaining its defense; (3)

that party must or should have known that, but for a mistake

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concerning identity, the action would have been brought

against it; and (4) the second and third requirements must

have been fulfilled within the prescribed limitations

period.

Id. quoting Schiavone v. Fortune, 477 U.S. 21, 29, 106 S.Ct.

2379, 91 L.Ed.2d 18 (1986). 

In their response, the Gallia County defendants distinguish

between the twelve new defendants sought to be named and the

proposed naming of the Gallia Sheriff in his individual capacity

and official capacities. With respect to the new defendants,

they assert, relying on Asher v. Unarco Material Handling, Inc.,

596 F.3d 313, 318-19 (6th Cir. 2010), that adding a new party,

rather than correcting a mistake, creates a new cause of action

and does not relate back to the original filing. They argue that

this is so even if “John Doe” defendants have been named in the

original complaint. Further, the Gallia County defendants

contend that the proposed new defendants did not receive any

notice of Mr. Smith’s suit. At the same time, they claim that

any proposed amendment naming Sheriff Browning in his individual

capacity should be denied based on the holding of Lovelace v.

O’Hara, 985 F.2d 847 (6th Cir. 1993). 

Turning first to the issue of notice, Mr. Smith asserts that 

the notice requirement of Rule 15(c)(1)(C) has been satisfied as

a result of the imputed knowledge doctrine recognized by the

Sixth Circuit in Berndt v. State of Tennessee, 796 F.2d 879, 884

(6th Cir. 1986). This issue was raised for the first time in his

reply. A party may not ordinarily raise a new issue in a reply

because the opposing party has no opportunity to respond. See,

e.g., Hamilton v. Astrue, 2010 WL 1032646, *6 (N.D. Ohio March

17, 2010) (“A [party] cannot wait until the reply brief to make

new arguments, thus effectively depriving the opposing party of

the opportunity to expose the weaknesses of [those new]

arguments”). The Gallia County defendants have filed a motion

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for leave to file instanter a sur reply to address the imputed

knowledge doctrine. Although the Gallia County defendants have 

indicated in the motion for leave that Mr. Smith opposes the

filing of a sur reply, he has not filed any opposition with the

Court. Because, for the reasons that follow, even assuming that

the notice requirements of 15(c)(1)(C)(i) have been satisfied as

Mr. Smith contends, his proposed amendment to add new defendants

cannot succeed, the Court will not address the issue of the

imputed knowledge doctrine and will deny as moot the motion for

leave to file a sur reply. 

AS discussed above, Rule 15(c)(1)(C) addresses an amendment

that “changes a party or the naming of the party against whom a

claim is asserted.” The Sixth Circuit, however, has narrowly

construed what alterations can be considered a “change” in

parties. As explained in DeBois,

courts in this Circuit have allowed relation back

where a new party is substituted for an old one, they

consistently have held that when “[t]he effect of

Plaintiff's amendment is to add another party[,]” it

“establishes a new and independent cause of action

which cannot be maintained when the statute has run,

for the amendment is one of substance rather than one

of form and brings into being one not presently in

court.” United States ex rel. Statham Instruments, Inc.

v. Western Cas. & Surety Co., 359 F.2d 521, 523 (6th

Cir. 1966) (emphasis added).

Id. at *10. 

The Asher case on which the Gallia County defendants rely

reaffirms that “the type of ‘changes' permitted [by Rule 15(c)]

are limited to corrections of misnomers or misdescriptions” and

“the precedent of this circuit clearly holds that ‘an amendment

which adds a new party creates a new cause of action and there is

no relation back to the original filing for purposes of

limitations.’” Debois, at *10 quoting Asher, 596 F.3d at 318. 

Sixth Circuit precedent has consistently held “that a Rule 15(c)

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‘change’ in parties requires a one-for-one substitution, and that

the addition of new parties alongside those that are already part

of the action precludes relation back to the original complaint.”

Id. Here, Mr. Smith’s proposed amendment does not seek a onefor-one substitution. Rather, the proposed amendment seeks to

add twelve new defendants beyond those named in the original

complaint. This is precisely the type of proposed amendment the

Sixth Circuit has found creates a new cause of action and does

not relate back to the original filing for statute of limitations

purposes. 

Further, as the defendants contend, to the extent that Mr.

Smith may be attempting to name defendants initially identified

as “John Doe,” a different result is not required here. While

the defendants are correct, this does not appear to be Mr.

Smith’s intention here. Mr. Smith has not responded directly to

this argument and, in fact, continues to name John Doe defendants

in his proposed amended complaint. Regardless, the wellestablished Sixth Circuit precedent holds that naming a “Doe”

defendant is not a substitution of parties to which Rule 15(c)

applies. Cox v. Treadway, 75 F.3d 230 (6th Cir. 1996). In Cox,

the Court of Appeals held that such an action is a “change of

parties, not a mere substitution of parties,” and that “the

requirements of Rule 15(c) must be met in order for the amendment

adding the named defendant to relate back to the filing of the

original complaint.” Id. at 240. Further, the Sixth Circuit in

Cox also concluded that replacing a “Doe” party with a named

party can never satisfy those requirements, because naming a

“Doe” party instead of the actual party is not a “mistake

concerning the proper party’s identity” - an absolute

prerequisite to the application of Rule 15(c). 

For all of the reasons set forth above, Mr. Smith has failed

to meet the requirements of Rule 15(c)(1)(C) with respect to the

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proposed new defendants. Consequently, there is no argument to

be made that would allow Mr. Smith to add these additional

defendants and his motion for leave to amend will be denied to

the extent that it seeks to do so. 

This brings the Court to Mr. Smith’s final proposed

amendment - naming Joseph R. Browning, the Gallia County Sheriff,

in his individual and official capacities. In the caption of the

original complaint, Mr. Smith named the “Gallia County Sheriff

c/o Joseph R. Browning Gallia County Sheriff” as a defendant

although the allegations of the complaint suggest that the Gallia

County Sheriff’s Department is intended as the defendant. The

Gallia County defendants, however, have construed the original

complaint as naming Sheriff Browning as a defendant in his

official capacity and have construed the amendment as proposing

to add only an individual capacity claim against Sheriff

Browning. Accordingly, as previously noted, they have separated

Sheriff Browning from the other proposed defendants and frame

their argument with respect to him in terms of mistake and

knowledge under Rule 15(c)(1)(C)(ii) as opposed to a change in

parties under Rule 15(c)(1)(C) as discussed above. While,

ultimately, it will be a distinction without a difference,

construing the complaint in this way for purposes of the current

motion is more favorable to Mr. Smith. Consequently, the Court

will construe the original complaint in this way as well.

The Gallia County defendants oppose this proposed amendment

asserting that in order for Sheriff Browning now to be named in

his individual capacity, he must have known or should have known

that, but for a mistake in identity, he would have been named as

a defendant in his individual capacity in the original complaint. 

The Gallia County defendants rely on Lovelace v. O’Hara, 985 F.2d

847 (6th Cir. 1993) in support of their position that no such

mistake in identity was made here. Mr. Smith has not addressed

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the issues raised by the Gallia County defendants’ reliance on

Lovelace. 

The Sixth Circuit has explained its holding in Lovelace as

follows. 

[T]he plaintiff originally sued an individual police

officer in his official capacity. After the statute of

limitations had expired, the plaintiff attempted to amend

her complaint to name this same officer in his individual

capacity to avoid sovereign immunity. Lovelace, 985 F.2d at

848-849. In dismissing her complaint, we rejected the

plaintiff’s argument that the amended complaint related back

to the original one under Rule 15(c). We explained, “the

complaint evidences an intentional choice by [the

plaintiff’s] attorney to bring an official capacity suit. 

That such a choice may not have been wise, is insufficient

to invoke relation back of the amendment under [Rule

15(c)].” Id. at 850-51.

In Lovelace, [], the plaintiff named the exact same

individual in the amended complaint, and was only changing

the capacity in which that individual was being sued. 

Accordingly, it was not possible for the plaintiff to argue

that she had made a “mistake concerning the identity of the

proper party.” 

Black-Hosang v. Ohio Dept of Public Safety, 96 Fed. Appx.

372, 376 (6th Cir. 2004) (emphasis in original). 

Here, construing Mr. Smith’s original complaint as naming

Sheriff Browning in his official capacity, the scenario presented

is similar to that presented in Lovelace – the only difference

being that Mr. Smith is not seeking to abandon the claims against

Sheriff Browning in his official capacity or, to state it more

accurately, the claims against the Sheriff’s Department. See

Smith v. Leis, 407 Fed.Appx. 918, 927 (6th Cir. 2011) quoting

Alkire v. Irving, 330 F.3d 802, 810 (6th Cir. 2003)

(“‘[I]ndividuals sued in their official capacities stand in the

shoes of the entity they represent.”) The original complaint

unequivocally demonstrates Mr. Smith’s intention to bring an

official capacity suit. Paragraph 2 of the original complaint

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states:

Defendant Gallia County Sheriff’s Office

(hereinafter referred to as “Gallia County Sheriff” or

“Defendant Gallia County Sheriff”) is a political

subdivision of the State of Ohio and at the time of the

events in questions (sic) was the employer of Defendant

Angela Shriver, Defendant Anthony Werry, Defendant

Kimberly Blackburn and Defendant John and Jane Doe #1-

10. 

Further, the substantive allegations directed to the Gallia

County Sheriff include the following:

42. The violation of Plaintiff’s constitutional

and civil rights as described herein was the direct

result of the Gallia County Sheriff’s custom, practice

and/or policy in that Gallia County Sheriff Deputies

are inadequately and/or improperly trained, and

inadequately and/or improperly supervised. In failing

to adequately and properly train and/or supervise its

employees and/or deputies to ensure they adhere to

proper policy and/or procedures, Defendants Gallia

County Sheriff acted with deliberate indifference

toward the constitutional rights of Plaintiff and other

citizens. 

43. Because of its policies, procedures,

patterns, practices, and customs including, but not

limited to, training, supervision, investigation, and

discipline of Gallia County Sheriff Deputies, Gallia

County Sheriff is liable to Plaintiff pursuant to 42

U.S.C. §1983.

These allegations are precisely the type of allegations

generally made in an attempt to subject a governmental entity to

liability either directly or through an official capacity claim. 

See Monell v. Dep’t of Social Servs., 436 U.S. 658, 691 (1978);

Gregory v. City of Louisville, 444 F.3d 725, 752 (6th Cir.

2006). Based on these allegations, the Court is not convinced

that Sheriff Browning reasonably would have believed “that he

was being sued in his personal capacity or that, but for a

mistake concerning identity, the suit would have been against

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him personally.” Lovelace, at 851. The United States Supreme

Court has recently made clear that “[t]he only question under

Rule 15(c)(1)(C)(ii) ... is whether [a defendant] knew or should

have known that, absent some mistake, the action would have been

brought against him.” Krupski v. Costa Crociere S. p. A., __

U.S. __, 130 S.Ct. 2485, 2494, 177 L.Ed.2d 48 (2010). Mr. Smith

does not address the issues relating to Sheriff Browning

separately from the other proposed defendants. As a result, he

has raised no issue of mistake, instead relying solely on his

imputed knowledge argument. Consequently, there is no argument

to be made that Mr. Smith has satisfied the requirements of Rule

15(c)(1)(C)(ii) for relation back with respect to his proposed

amendment to add Sheriff Browning as a defendant in his

individual capacity. 

In reaching this conclusion, the Court notes that, because

Mr. Smith’s proposed amended complaint continues to name the

Sheriff’s Department as a defendant, this case is easily

distinguishable from Black-Hosang, quoted above, in which the

Sixth Circuit found a mistake of identity. In that case, Ms.

Black-Hosang sued the State of Ohio Department of Public Safety. 

Following the Department’s motion to dismiss on grounds of

sovereign immunity, she sought to amend her complaint to name an

individual police officer as the defendant. In contrasting the

situation in Black-Hosang from that in Lovelace, the Sixth

Circuit stated,

Black-Hosang was mistaken about the identity of

the proper party. She erroneously sued the Department

when she should have sued the individual officer. 

Lovelace itself recognized this distinction.

This simply is not the situation presented here. Mr. Smith has

not argued that he is seeking to name Sheriff Browning in his

individual capacity to correct any “misidentification” of the

Sheriff’s Department as a defendant. Because Mr. Smith has not

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made such an argument, nor have the Gallia County defendants

raised any issue, the Court need not address, in the context of

the current motion, any issue regarding the status of the

Sheriff’s Department as a defendant in this case. 

Further, were the Court to consider the imputed knowledge

doctrine as argued by Mr. Smith, a different result also would

not be required. There is a distinction between the notice

requirement of Rule 15(c)(1)(C)(i) and the mistake requirement of

Rule 15(c)(1)(C)(ii). Bradford v. Bracken County, 767 F.Supp.2d

740, 748 (E.D. Ky. 2011) citing Burdine v. Kaiser, 2010 WL

2606257 (N.D. Ohio June 25, 2010). Even if Sheriff Browning had

notice that Mr. Smith might bring suit against him in his

individual capacity, adding him as a defendant in that capacity

relates back only if Sheriff Browning knew that it was because of

a mistake that he was not sued individually. As discussed above,

that is not the situation presented by this case. As a result,

“[t]he imputed knowledge doctrine [would] not help [Mr. Smith]

maneuver around the statute of limitations....” Id. quoting

Burdine, at *3. 

 In summary, Mr. Smith has no colorable argument that his

proposed amendment to name twelve additional defendants satisfies

the requirements of Rule 15(c)(1)(C) for relation back. 

Similarly, he can make no such argument that his proposed

amendment to add Sheriff Browning as a defendant in his

individual capacity has met the requirements of Rule

15(c)(1)(C)(ii). Consequently, the motion for leave to amend

will be denied, on grounds of futility, to the extent that it

seeks to name additional defendants or name Sheriff Browning in

his individual capacity. 

However, as discussed above, the Court will not deny Mr.

Smith’s motion for leave to amend, to the extent that it seeks to

add factual allegations, on grounds of futility. This brings the

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Court to the issue of prejudice raised by the Gallia County

defendants. Their bare assertions of prejudice with respect to

the proposed amendment to add factual allegations are that such

allegations would require “other sources of proof,” that they

were not given “adequate notice” of these new allegations, and

that evidence “is likely to have grown stale.” In light of the

liberal standard of Rule 15, the Court finds these conclusory

assertions insufficient to demonstrate any meaningful prejudice. 

The Gallia County defendants have not argued, let alone

demonstrated, that they will be required to expend significant

additional resources to conduct discovery and prepare for trial

in the event this proposed amendment is allowed or that allowing

the proposed amendment would significantly delay the resolution

of this action. As a result, the Gallia County defendants have

failed to set forth seriously any claim of prejudice. 

Consequently, the motion for leave to amend will be granted to

the extent that it seeks to add new factual allegations.

IV. Conclusion and Order

For the above reasons, the plaintiff’s motion for leave to

file an amended complaint (#12) will be granted in part and

denied in part as set forth above. Plaintiff shall file a first

amended complaint consistent with this order within seven days. 

The motion for leave to file a sur reply (#15) is denied as moot.

V. Procedure for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 91-3, pt.

I., F., 5. The motion must specifically designate the order or

part in question and the basis for any objection. Responses to

objections are due fourteen days after objections are filed and

replies by the objecting party are due seven days thereafter. 

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The District Judge, upon consideration of the motion, shall set

aside any part of this Order found to be clearly erroneous or

contrary to law.

This order is in full force and effect, notwithstanding the

filing of any objections, unless stayed by the Magistrate Judge

or District Judge. S.D. Ohio L.R. 72.4.

/s/ Terence P. Kemp 

United States Magistrate Judge

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