UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION 

NICHOLAS ROBERSON,

Plaintiff, Case No. 09-12927 

v. HONORABLE DENISE PAGE HOOD

J. TORRES, et al.,

Defendants.

___________________________________/

ORDER DENYING MOTION FOR LEAVE TO FILE

SECOND AMENDED COMPLAINT,

GRANTING MOTION IN LIMINE

and SETTING DATES

I. BACKGROUND

On July 24, 2009, this action filed by Plaintiff Roberson was transferred from

the United States District Court, Western District of Michigan. On August 12, 2009

an Amended Complaint was filed pro se naming seven individual Defendants and

eight unknown correctional officers who were members of the Emergency Response

Team. (Doc. No. 15) Roberson alleges excessive force, deliberate indifference to

medical needs, unsafe conditions, failure to protect and investigate and retaliation.

(Doc. No. 15, Pg ID 51)

On September 27, 2010, the Court entered an Order adopting the Magistrate

Judge’s Report and Recommendation dismissing certain Defendants and allowing the

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 1 of 8 Pg ID 1204
monetary claims to proceed as to Torres and Juan De Los Santos and eight unknown

correctional officers. (Doc. No. 55, Pg ID 333) A Notice of Appearance was filed by

Edwin B. Sadik representing Roberson. (Doc. No. 74) De Los Santos was voluntarily

dismissed by Plaintiff on May 10, 2012. (Doc. No. 78) On March 13, 2013, the Court

entered an Order rejecting the Magistrate Judge’s Report and Recommendation and

denying Defendants’ Motion for Summary Judgment. (Doc. No. 85) The matter was

referred back to the Magistrate Judge for a recommendation as to the remaining John

Does.

On March 27, 2013, the Magistrate Judge entered an order allowing Edwin B.

Sadik to withdraw as Plaintiff’s counsel. (Doc. No. 88) Counsel was assigned to

represent Roberson on July 18, 2013 by the Magistrate Judge. (Doc. No. 98)

Defendants appealed the Court’s order on March 29, 2013. This matter was stayed

pending the resolution of the appeal. (Doc. No. 100) On October 21, 2014, the Sixth

Circuit issued its opinion affirming this Court’s Order denying summary judgment

motion. (Doc. No. 101) This matter thereafter proceeded through discovery, with

discovery completed by August 10, 2015. 

This matter is now before the Court on Roberson’s Motion for Leave to file a

Second Amended the Complaint to add named Defendants. A response and reply

have been filed. A hearing was held on the matter.

2

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 2 of 8 Pg ID 1205
II. ANALYSIS

Roberson seeks to amend the Complaint to add named-Defendants and to relate

back to the original Complaint regarding the statute of limitations period. Torres

opposes the motion as untimely and because the statute of limitations has passed as

to the claims against the proposed Defendants.

Rule 15(a) provides that a party may amend its pleading once as a matter of

course within 21 days after a responsive pleading is served. Fed. R. Civ. P. 15(a)(1). 

Rule 15(a)(2) further provides that a party may amend its pleading on leave of court. 

Leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a)(2). A

district court may deny leave to amend in cases of undue delay, undue prejudice to the

opposing party, repeated failure to cure deficiencies by amendment previously

allowed or futility. Foman v. Davis, 371 U.S. 178, 184 (1962). Delay alone,

regardless of its length is not enough to bar amendment if the other party is not

prejudiced. Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999). 

Allowing an amendment after the close of discovery and dispositive motion deadline

has passed creates significant prejudice because discovery would have to be reopened

and the defendant must now prepare a defense for a claim quite different than the

claim that was before the court. Id. When an amendment is sought at a late state of

litigation, there is an increased burden on the moving party to show justification for

3

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 3 of 8 Pg ID 1206
failing to move earlier. Bridgeport Music, Inc. v. Dimension Films, 401 F.3d 647, 662

(6th Cir. 2004). If a complaint cannot withstand a motion to dismiss under Rule

12(b)(6), the motion to amend should be denied as futile. Rose v. Hartford

Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000).

The crux of the parties’ dispute concerns Rule 15(c)(1)(C)(ii). That subsection

has two components: 1) whether there was a mistake concerning the identity of a

prospective defendants; and 2) whether a prospective defendant knew or should have

known that it should have been sued but for the mistake of identity. Black-Hosang

v. Ohio Dep’t of Public Safety, 96 F. App’x 372, 375 (6th Cir. 2004). The Sixth

Circuit allows substitutions to correct the plaintiff’s misidentification of a defendant. 

Id. at 376-77. 

“As a general rule, an amendment pursuant to Rule 15 ... relates back only to

the matters relating to the original parties of the complaint, or to correct a misnomer

or misdescription of defendant, and not to add or substitute a new party defendant.” 

U.S. v. Western Cas. & Sur. Co., 359 F.2d 521, 523 (6th Cir. 1966). The focus is not

whether a plaintiff knew or should have known the identity of the proper defendant,

but whether the proper defendant knew or should have known that it would have been

named as a defendant but for an error in defendant’s identity. Krupski v. Costa

Crociere S.p.A., 560 U.S. 538, 549 (2010). A plaintiff may know that the prospective

4

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 4 of 8 Pg ID 1207
defendant exists but nonetheless harbor a misunderstanding about his status or role in

the events giving rise to the claim at issue and may mistakenly chose to sue a different

defendant based on that misimpression. Id. This kind of deliberate but mistaken

choice does not foreclose a finding that Rule 15(c)(1)(C)(ii) has been satisfied. Id.

Courts may infer an absence of mistake only if the complaint and a plaintiff’s conduct

together demonstrate that a plaintiff sought some strategic advantage in naming the

wrong defendant in the original complaint. Id. at 552. The purpose of relation back

is to balance the interests of the defendant protected by the statute of limitations with

the preference expressed in the Federal Rules for resolving disputes on their merits. 

Id. at 550. The Sixth Circuit has held that a complete lack of knowledge as to the

identity of a defendant–a suit against a Doe defendant, for example–is not equivalent

to a “mistake” concerning the identity of the actual defendant’s identity within the

meaning of Rule 15(c). Moore v. State of Tenn., 267 F. App’x 450, 455 (6th Cir.

2008).

In this case, Roberson agrees the statute of limitations is well passed. The

statute of limitations in a section1983 case borrows its limitation period from the

applicable state law injury torts which in Michigan is 3 years. MCL § 600.5805(1). 

The incident in the complaint occurred on March 10, 2009, which means the

limitations period expired on March 10, 2012. During discovery in this case, defense

5

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 5 of 8 Pg ID 1208
counsel sent documents on January 5, 2012 to Roberson’s then-counsel which

identified the names of all the proposed new Defendants Roberson now seeks to add. 

(Doc. No. 114, Exs. A, B) Roberson does not argue he made a “mistake” in

identifying current Defendant Torres as a defendant, but rather that the eight unknown

correctional officers was not known to him because his former counsel did not give

his current counsel the discovery provided by the defense. Roberson is also not

substituting Torres with the additional defendants because he “mistakenly” named

Torres as a Defendant. Roberson is instead adding new Defendants because they were

unknown to him, or rather, current counsel.

As the Sixth Circuit has held, a complete lack of knowledge as to the identity

of a defendant–a suit against a Doe defendant, for example–is not equivalent to a

“mistake” concerning the identity of the actual defendant’s identity within the

meaning of Rule 15(c). Moore, 267 F. App’x at 455. Roberson cannot meet the

criteria for adding a defendant at this late date and relating the limitations period back

to the original complaint because he has not shown a “mistake” in identifying the

original named-defendant. Roberson relies on Daily v. Monte, 26 F. Supp. 2d 984

(E.D. Mich. 1998) to support his request to amend the Complaint, but Daily is

inapplicable since Roberson, through his counsel, had knowledge of the identity of the

Doe defendants. It is noted the Daily case is a district court case, which was issued

6

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 6 of 8 Pg ID 1209
well before the Moore case issued by the Sixth Circuit. The proposed amended

complaint adding certain named defendants is futile.

III. CONCLUSION

For the reasons set forth above,

IT IS ORDERED that Plaintiff’s Motion for Leave to File Second Amended

Complaint (Doc. No. 110) is DENIED.

IT IS FURTHER ORDERED that Plaintiff’s Motion in Limine to Exclude at

Trial Evidence of Plaintiff’s Prior Misconduct (Doc. No. 111) is GRANTED, in light

of the parties’ agreement placed on the record.

IT IS FURTHER ORDERED that the following dates govern this matter:

Final Pretrial Conference is set for: Dec. 14, 2015, 2: 15 p.m.

 (All parties with authority to settle must appear)

Proposed Joint Final Pretrial Order 

 must be submitted by: Dec. 7, 2015

Jury Trial is set for: Jan. 12, 2016, 9:00 a.m.

S/Denise Page Hood 

Denise Page Hood

United States District Judge

Dated: October 13, 2015

7

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 7 of 8 Pg ID 1210
I hereby certify that a copy of the foregoing document was served upon counsel of

record on October 13, 2015, by electronic and/or ordinary mail.

S/LaShawn Saulsberry 

 Case Manager

8

2:09-cv-12927-DPH-APP Doc # 118 Filed 10/13/15 Pg 8 of 8 Pg ID 1211