UNITED STATES DISTRICT COURT

SOUTHERN DISTICT OF OHIO

WESTERN DIVISION

DAVID DURHAM, Case No. 1:18-cv-0091

 Plaintiff, McFarland, J. 

 Litkovitz, M.J. 

 vs. 

DETECTIVE JERRY ORDER AND REPORT 

NIFFENEGGER, et. al. AND RECOMMENDATION

 Defendants.

 

I. Background

Plaintiff David Durham filed this action on February 9, 2018 against defendants Jerry 

Niffenegger and Mark Purdy, detectives employed by the Warren County Sherriff’s Office; 

Target Corporation (Target); James Christian, a Target employee; and Walmart Stores, Inc.

(Walmart). Plaintiff also named three John/Jane Doe defendants: an unidentified Walmart 

employee and two unidentified employees of the Warren County Sherriff’s Office. Plaintiff 

sought relief under 42 U.S.C. § 1983 for alleged violations of his rights under the First, Fourth, 

Fifth, and Fourteenth Amendments to the United States Constitution; violations of his rights 

under the Ohio Constitution, Article I, §§ 2 and 14; and violations of Ohio common law. 

The undersigned issued a Report and Recommendation on defendants’ motion to dismiss 

(Doc. 25), which the district judge adopted by Order dated March 26, 2019. (Doc. 30). The 

Court dismissed: plaintiff’s claims under § 1983 against defendants Walmart and Target; 

plaintiff’s malicious prosecution, negligent infliction of emotional distress, gross 

negligence/reckless conduct, civil theft, and excessive force claims against defendants Walmart, 

Target and Christian; and plaintiff’s claims for false arrest, false imprisonment, assault and 

battery, and intentional infliction of emotional distress against these defendants, which were 

time-barred under the one-year statute of limitations. The Court found that plaintiff had stated a 

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claim for relief under § 1983 against defendant Christian and state law claims for

conversion/unjust enrichment and civil conspiracy against defendants Christian, Walmart, and 

Target. This matter is before the Court on plaintiff’s motion for leave to file an amended 

complaint (Doc. 41), defendant Walmart’s opposing memorandum (Doc. 48), and plaintiff’s 

reply (Doc. 52). 

II. Motion to amend

Plaintiff filed his motion for leave to amend the complaint under Fed. R. Civ. P. 15 and a 

proposed amended complaint on October 30, 2019. (Docs. 40, 41). Plaintiff seeks to identify a 

defendant named in the original complaint, Walmart’s agent John Doe #1, as Scott Hollopeter. 

Plaintiff argues that the Court should grant leave to amend under Fed. R. Civ. P. 15(a) because 

there is no evidence of undue delay, bad faith, of dilatory motive on plaintiff’s part, and no party 

will be prejudiced by the amendment. 

Defendant Walmart opposes plaintiff’s motion for leave to amend. (Doc. 48). Defendant 

contends that plaintiff should not be granted leave to add § 1983 claims against Hollopeter 

because those claims are time-barred by the applicable statute of limitations. Defendant asserts 

that the events giving rise to the lawsuit occurred in February 2016 and in early 2017; plaintiff 

filed this action on February 9, 2018; and the two-year statute of limitations has since expired on 

plaintiff’s § 1983 claims against Hollopeter. Defendant asserts that the remaining claims in this 

lawsuit have been dismissed by the Court or fail to state a claim against Hollopeter, so that to 

allow plaintiff to amend the complaint to add these claims against Hollopeter would be futile. 

(Doc. 48 at 5-7). 

In reply, plaintiff reiterates his argument that he should be granted leave to amend the 

complaint to add Hollopeter as a defendant under Fed. R. Civ. P. 15(a). (Doc. 52). Further, 

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plaintiff argues that substitution of Hollopeter as a named defendant for John Doe #1 is 

warranted under Ohio Civ. R. 3(A) and 15(C) because the amendment relates back to the filing 

date of the original complaint. Plaintiff acknowledges that most of his supplemental state law 

claims have been addressed by the Court previously, but he argues he has sufficiently pled 

claims for conversion/unjust enrichment and civil conspiracy against Hollopeter; and his claim 

for civil conspiracy relates back to date of the original complaint and is timely. 

1. Section 1983 claims

Defendant Walmart argues that plaintiff should be denied leave to amend the complaint 

to bring § 1983 claims against Hollopeter because those claims are time-barred. (Doc. 48). 

Defendant contends that plaintiff “never attempted to serve” defendant John Doe #1 within the 

now expired limitations period “as required under both Ohio and federal law.” (Doc. 48 at 2). 

Defendant cites to both federal and state law in arguing that it is too late for plaintiff to bring 

Hollopeter into this case, but defendant specifically addresses only the requirements of state law 

and plaintiff’s alleged failure to comply with those requirements. (Id., citing Erwin v. Bryan, 

929 N.E.2d 1019, 1024 (2010); Ohio Civ. R. 15(D)1). Defendant argues that plaintiff has not 

met the requirements of Ohio law, and specifically Ohio Civ. R. 15(D), for suing a fictitious 

defendant and then later amending the pleading to reflect the defendant’s correct name once it is 

obtained through discovery. (Id. at 2-3). Defendant argues that among other requirements, the 

plaintiff must actually serve any “John Doe” defendants before the statute of limitations expires. 

1 Ohio Civ. R. 15(D), “Amendments Where Name of Party Unknown,” states: 

When the plaintiff does not know the name of a defendant, that defendant may be designated in a 

pleading or proceeding by any name and description. When the name is discovered, the pleading 

or proceeding must be amended accordingly. The plaintiff, in such case, must aver in the 

complaint the fact that he could not discover the name. The summons must contain the words 

“name unknown,” and a copy thereof must be served personally upon the defendant.

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(Id. at 3, citing Erwin, 929 N.E.2d at 1024). Defendant argues that because Ohio imposes a

personal service requirement for fictitious defendants, both Ohio state courts and federal courts 

in Ohio have held that a fictitious defendant must be served with the complaint before the statute 

of limitations expires or else “a later-discovered person cannot be substituted for a fictitious 

defendant.” (Id., citing Erwin, 929 N.E.2d at 1024). Defendant contends that since the decision 

in Erwin, both Ohio courts and other courts in the Sixth Circuit have repeatedly held that Ohio 

litigants cannot “use ‘John Doe’ defendants . . . as placeholders in order to avoid the statute of 

limitations.” (Id. at 3-4, citing cases). Defendant asserts that plaintiff did not sufficiently 

describe John Doe #1 so as to effect service on Hollopeter, and did not serve Hollopeter, within 

the two-year limitations period applicable to plaintiff’s § 1983 claims; therefore, the statute of 

limitations on these claims has expired and plaintiff’s motion to amend the complaint to add the 

claims should be denied. (Id. at 4, citing Wright v. County of Franklin, Ohio, No. 2:10-cv-715, 

2011 WL 3667397 (S.D. Ohio Aug. 22, 2011)). 

Plaintiff argues in reply that his § 1983 claims against Hollopeter are not time-barred 

because they relate back to the original filing date of the complaint under Ohio Civ. R. 3(A) and 

15(C). (Doc. 52 at 2). Plaintiff relies on both state and federal law in making this argument. 

Plaintiff alleges that under Ohio Civ. R. 15(C), a named defendant can be substituted by an 

amendment to the complaint if the amendment will relate back to the filing date of the original 

complaint. (Id. at 2-3). Plaintiff suggests that the notice requirements of Fed. R. Civ. P. 

15(c)(1)(C) determine whether an amendment relates back.

2

 (Id. at 2-3, citing Krupski v. Costa 

2 Ohio Civ. R. 15(c), “Relation Back of Amendment,” is similar to Fed. R. Civ. P. 15(c). It states: 

“Whenever the claim or defense asserted in the amended pleading arose out of the conduct, 

transaction, or occurrence set forth or attempted to be set forth in the original pleading, the 

amendment relates back to the date of the original pleading. An amendment changing the party 

against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the 

period provided by law for commencing the action against him, the party to be brought in by 

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Crocier, S.p.A., 560 U.S. 538 (2010)). Plaintiff suggests that “but for a mistake,” Hollopeter 

“knew or should have known” that he would have been sued, which allows plaintiff’s proposed 

amendment to relate back. (Id.). Plaintiff alleges he attempted to obtain the address of 

Walmart’s employee, John Doe #1, but was initially unsuccessful; he nonetheless sufficiently 

described the Walmart employee as an individual “directly involved in the sting operation”

against plaintiff who “assisted in providing the merchandise sold to [plaintiff] and executing 

search warrants” on plaintiff’s store with Walmart; and plaintiff requested additional information 

from Walmart to learn John Doe #1’s identity and address. (Id. at 3). Plaintiff argues that 

“based on the information above, pursuant to Ohio R. Civ. P. 15(C),” an amendment of the 

complaint that substitutes Hollopeter for defendant John Doe #1 will relate back to the original 

complaint. (Id. at 3-4).

There is no dispute that plaintiff’s § 1983 claims against Hollopeter are barred by the 

applicable two-year statute of limitations unless they relate back to the date the original 

complaint was filed. The acts alleged in the complaint occurred in early 2016 and no later than 

amendment (1) has received such notice of the institution of the action that he will not be 

prejudiced in maintaining his defense on the merits, and (2) 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.”

Fed. R. Civ. P. 15(c) states:

(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 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.

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April 2017, when plaintiff was acquitted of the criminal charges against him. (Doc. 1). Plaintiff 

did not file his motion for leave to amend the complaint and his proposed amended complaint 

until October 30, 2019, more than two years after plaintiff’s acquittal. (Docs. 40, 41). Thus, the 

issue is whether plaintiff’s § 1983 claims against defendant Hollopeter are time-barred or 

whether they relate back to the filing date of the original complaint.3

Initially, the Court must determine whether state or federal rules govern the relation back 

of plaintiff’s proposed amendment. The parties cite both state and federal law in support of their 

respective arguments as to whether plaintiff’s § 1983 claims are time-barred or whether they 

relate back to the date of the original complaint. Defendant specifically relies on Ohio Civ. R. 

15(D) and Ohio case law, but defendant but has not explained why the Ohio Rule should govern 

the Court’s analysis of plaintiff’s claims in this § 1983 action. Plaintiff argues that Ohio Civ. R. 

15(C) governs whether Hollopeter can be substituted as a party and Fed. R. Civ. P. 15(c)

determines whether the proposed amendment relates back, but he has not cited any authority to 

support applying Ohio Civ. R. 15(C) to claims brought in federal court. Courts in the Sixth 

Circuit that have addressed this issue have held that while state law provides the applicable 

limitations period for § 1983 and supplemental state law claims, Fed. R. Civ. P. 15(c) governs 

the relation back analysis. See Bradford v. Bracken County, 767 F. Supp. 2d 740, 747 (E.D. Ky. 

2011) (Fed. R. Civ. P. 15(c) controlled the relation back analysis in a § 1983 action alleging 

constitutional violations and supplemental state law claims against several unknown defendants 

whom the plaintiff sought to name in an amended complaint after the statute of limitations had 

expired) (citing Force v. City of Memphis, 101 F.3d 702, 1996 WL 665609, *2 (6th Cir. Nov. 14, 

1996) (Table) (in a case procedurally similarly to Bradford, the Sixth Circuit found that “[t]he 

3 The Court addresses whether plaintiff’s amended supplemental state law claims against Hollopeter relate back 

infra.

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relation back issue is controlled by Fed. R. Civ. P. 15(c)”); see also DeLong v. Arms, 251 F.R.D. 

253, 256 (E.D. Ky. 2008) (holding that while state law provided the statute of limitations for the 

§ 1983 and supplemental state law claims in that case, Fed R. Civ. P. 15(c) was a “procedural 

rule” which applied to determine whether relation back was appropriate) (citing Johansen v. E.I. 

DuPont De Nemours & Co., 810 F.2d 1377, 1380 (5th Cir. 1987)). Accordingly, the Court will 

apply Fed. R. Civ. P. 15(c) to determine whether plaintiff’s claims against Hollopeter in the 

amended complaint relate back to the filing date of the original complaint.

Plaintiff suggests in his reply memorandum that his § 1983 claims relate back because 

“but for a mistake,” Hollopeter would have known that he would have been sued. (Doc. 52 at 3, 

citing Fed. R. Civ. P. 15(c)(1)(C)). But substituting a named defendant for a John Doe defendant 

is considered a change in parties, not a “mistake.” Cox v. Treadway, 75 F.3d 230, 240 (6th Cir. 

1996). See also Ham v. Sterling Emerg. Services of the Midwest, Inc., 575 F. App’x 610, 616-17 

(6th Cir. 2014) (the plaintiff’s inability to timely learn the identity or address of John Doe 

defendant was “not a mistake”); Brown v. Cuyahoga County, Ohio, 517 F. App’x 431, 433-34 

(6th Cir. 2013) (“absence of knowledge is not a mistake as required by Rule 15(c)(1)(C)(ii)”); 

Smith v. City of Akron, 476 F. App’x 67, 69 (6th Cir. 2012) (holding that substituting previously 

unknown defendants for John Doe defendants does not satisfy the “mistaken identity” 

requirement of Rule 15(c)); Moore v. Tennessee, 267 F. Appx. 450, 455 (6th Cir. 2008); Cooper 

v. Montgomery County, Ohio, 199 F. Supp. 3d 1189, 1191-92 (S.D. Ohio 2016) (“A ‘mistake’

does not result from a plaintiff’s failure to exercise due diligence to learn the true identity of 

John Doe defendants within the applicable statute of limitations period”)). A new party cannot 

be added to an action in place of a John Doe defendant after the statute of limitations has run. 

Cox, 75 F.3d at 240. Rule 15(c) does not apply when the plaintiff seeks to add, rather than 

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change, a named defendant. Rayfield v. City of Grand Rapids, Michigan, 768 F. App’x 495, 502 

(6th Cir. 2019) (citing Cox, 75 F.3d at 240));

Thus, because plaintiff is attempting to add Hollopeter as a new party here and the statute 

of limitations has run on his § 1983 claims, he cannot pursue those claims. The claims do not 

relate back to the date of the original complaint under Fed. R. Civ. P. 15(c). Cox, 75 F.3d at 240

(amendment to name previously unidentified officers did not relate back when the statute of 

limitations had already run). This is true even if plaintiff described John Doe #1’s role in the 

alleged “sting operation” in the original complaint but was unable to learn his identity within the 

limitations period as plaintiff alleges. (Doc. 52 at 3-4). Assuming Hollopeter knew or should 

have known that he would be a defendant in this action as plaintiff appears to argue, and 

assuming Hollopeter will not be prejudiced if plaintiff is permitted to proceed, this “is not 

enough to satisfy Fed. R. Civ. P. 15(c); plaintiff must also show that he made a ‘mistake 

concerning the proper party’s (Hollopeter’s) identity.’” Cooper, 199 F. Supp. 3d at 1192

(quoting Smith, 476 F. App’x at 69). Plaintiff did not make a mistake about Hollopeter’s 

identity; he did not know who John Doe #1 was and apparently did not find out within the twoyear limitations period. This is not the “kind of problem” the relation-back protections of Rule 

15(c) were intended to correct. Id. (quoting Smith, 476 F. App’x at 69); Wiggins v. KimberlyClark Corp., 641 F. App’x 545, 549 (6th Cir. 2016) (holding that even if the defendants knew or 

should have known that the plaintiff intended to sue them, plaintiff “failed to establish that his 

lack of knowledge of their identities was due to a ‘mistake’ as the Rule requires.”)). See also

Bradford, 767 F. Supp. 2d at 749 (finding that because the mistake requirement of Rule 

15(c)(1)(C) was “dispositive of the relation back issue,” it was not necessary to decide whether 

the notice requirement was satisfied).

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Thus, plaintiff’s request to amend his complaint to bring his § 1983 claims against 

Hollopeter should be denied. Plaintiff did not seek to add Hollopeter as a party until more than 

two years after the acts giving rise to his § 1983 claims took place. The § 1983 claims against 

Hollopeter are time-barred and do not relate back to the filing date of the original complaint. 

The proposed amendment would be futile insofar as plaintiff seeks to bring § 1983 claims 

against Hollopeter. See Triplett-Fazzone v. City of Columbus Div. of Police, No. 2:12-cv-331, 

2013 WL 811427, at *3 (S.D. Ohio Mar. 5, 2013) (citing Beatty v. Sunbeam Corp., 110 F. App’x

677-78 (6th Cir. 2004) (affirming denial of leave to amend where the statute of limitations had 

run and amendments could not relate back under Rule 15(c)); Shaw v. Pfeiffer, No. 2:05-cv00176, 2006 WL 2583306 (S.D. Ohio Sept. 7, 2006) (denying leave to amend where the 

amendment would be futile because the statute of limitations for the plaintiff's § 1983 claims had 

run)).

2. Supplemental state law claims

Plaintiff also seeks to amend his complaint to bring supplemental state law claims against 

Hollopeter. Defendant argues that plaintiff’s claims for false arrest, false imprisonment, assault 

and battery, excessive force, and intentional infliction of emotional distress are time-barred; 

plaintiff has not stated a claim for malicious prosecution and civil theft against Hollopeter for the 

same reasons those claims fail against Walmart; his claim for negligent infliction of emotional 

distress fails because plaintiff does not allege he was a bystander to an accident; plaintiff has not 

stated a claim for gross negligence/reckless conduct; plaintiff has not stated a claim for unjust 

enrichment/conversion against Hollopeter because plaintiff does not allege that Hollopeter 

retained money that belonged to plaintiff; and plaintiff has not stated a claim for civil conspiracy 

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against Hollopeter because the underlying tortious acts plaintiff alleges occurred no later than 

February 2016 and are time barred, or the alleged acts do not involve Hollopeter. (Doc. 48). 

Plaintiff does not dispute that his supplemental state law claims for false arrest, false 

imprisonment, assault and battery, and intentional infliction of emotional distress brought against 

Hollopeter in the proposed amended complaint are time-barred. (Doc. 52, citing Doc. 25, Report 

and Recommendation). Plaintiff also does not dispute that the proposed amended complaint fails

to state a claim against Hollopeter for malicious prosecution, excessive force, negligent infliction 

of emotional distress, gross negligence/reckless conduct, and civil theft. (Id.). Plaintiff should 

not be granted leave to amend the complaint to add these claims against Hollopeter because the 

amendment would be futile.

Plaintiff argues that he has sufficiently pled a claim for unjust enrichment/conversion 

against Hollopeter by alleging that Hollopeter was involved in the investigation of plaintiff’s 

video game stores, the execution of search warrants, and unlawful retention of plaintiff’s video 

games following his trial. (Id. at 6, citing Doc. 25). For the reasons stated in its prior Report and 

Recommendation, Walmart has not shown that the proposed amended complaint fails to allege 

sufficient facts to state a claim against Hollopeter for conversion/unjust enrichment. (See Doc. 

25 at 22-24). Plaintiff is granted leave to amend the complaint to add this claim. Plaintiff also 

argues that he has sufficiently pled a claim for civil conspiracy against Hollopeter as an 

employee of Walmart who was involved in the alleged “sting operation” against plaintiff. (Doc. 

52 at 6). Plaintiff argues the claim is not barred by the statute of limitations because he was 

acquitted on April 24, 2017; he filed this lawsuit less than one year later on February 9, 2018; 

and the amended complaint relates back to the filing date of the original complaint under Ohio 

Civ. R. 15(C). (Id., citing Doc. 25 at 27). Walmart has not shown that the amended complaint 

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fails to sufficiently plead a claim for civil conspiracy against Hollopeter for the reasons stated in 

the prior Report and Recommendation. (See Doc. 25 at 24-27). Further, Walmart has not 

addressed what the applicable statute of limitations is under Ohio law and has not shown that the 

civil conspiracy claim is time-barred. Plaintiff is therefore granted leave to amend the complaint 

to add his civil conspiracy claim against Hollopeter.

IT IS THEREFORE ORDERED THAT:

Plaintiff’s motion to amend the complaint (Doc. 41) is GRANTED in part to the extent 

plaintiff requests leave to add Scott Hollopeter as a defendant and to bring supplemental state 

law claims against Hollopeter for conversion/unjust enrichment and civil conspiracy.

IT IS THEREFORE RECOMMENDED THAT:

Plaintiff’s motion for leave to amend the complaint (Doc. 41) be DENIED insofar as 

plaintiff seeks to bring claims under 42 U.S.C. § 1983 and the remaining supplemental state law 

claims against Hollopeter.

Date: 

 Karen L. Litkovitz

United States Magistrate Judge 

4/10/2020

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UNITED STATES DISTRICT COURT

SOUTHERN DISTICT OF OHIO

WESTERN DIVISION

DAVID DURHAM, Case No. 1:18-cv-0091

 Plaintiff, McFarland, J.

 Litkovitz, M.J. 

 vs. 

DETECTIVE JERRY

NIFFENEGGER, et. al., 

 Defendants. 

NOTICE

Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of 

the recommended disposition, a party may serve and file specific written objections to the 

proposed findings and recommendations. This period may be extended further by the Court on 

timely motion for an extension. Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendation is based in whole or in part upon matters occurring on the record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party’s objections 

WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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