                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-5-2004

Padilla v. Cherry Hill
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3133




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                                                 NOT PRECEDENTIAL

   IN THE UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                    No. 03-3133
                   ____________

                 DAVID PADILLA

                                v.

  TOWNSHIP OF CHERRY HILL; OFFICERS JOHN
       DOE 1 THROUGH 20, Police Officers and
            Police Officials, jointly, severally,
          individually, and/or in the alternative;
 CHERRY HILL POLICE DEPARTMENT; JOHN DOE,
           (a ficticious name jointly, severally,
      and/or in the alternative); BRIAN MALLOY,
   CAPTAIN; DAVID KNOEDLER, LIEUTENANT;
 EDWARD CARNEY, SERGEANT; PAUL EICHFELD,
OFFICER; BRIAN ALBERT, PATROLMAN, individually
        and in their capacities as police officers of
  the Township of Cherry Hill; REBECCA MCCALLA

        (New Jersey D.C. Civil No. 00-cv-5829)

                   AIDA RIVERA

                           v.

    CHERRY HILL TOWNSHIP; CHERRY HILL
    POLICE DEPARTMENT; JOHN DOE POLICE
     OFFICERS I THROUGH X (fictitious names);
        JOHN DOE, (a fictitious name jointly,
          severally and/or in the alternative

       (New Jersey D.C. Civil No. 01-cv-00759)

                           Aida Rivera,
                                Appellant
                                        ____________

                        Appeal from the United States District Court
                               For the District of New Jersey
                         D.C. Nos.: 00-cv-05829 and 01-cv-00759
                        District Judge: Honorable Freda L. Wolfson
                                       ____________

             Submitted Under Third Circuit LAR 34.1(a) September 21, 2004

                   Before: McKEE, ROSENN, and WEIS, Circuit Judges

                                   (Filed October 5, 2004 )
                                        ____________

                                 OPINION OF THE COURT
                                      ____________

ROSENN, Circuit Judge.

        Aida Rivera (“Rivera”) brought this action under 28 U.S.C. § 1983 against Cherry

Hill Township and its Police Department, charging that they failed to properly train their

police officers and police dispatcher, and engaged in a policy which afforded “unfettered

discretion to officers in the field.” Rivera also sued John Doe police officers and John

Doe employee under § 1983 in their individual capacities, maintaining that they violated

her civil rights, including but not limited to, her First, Fourth, Fifth, Sixth, Eight, and

Fourteenth amendment rights. In addition, Rivera brought supplemental state law claims

against the John Doe officers for assault and battery, false arrest, recklessness,

negligence, and gross negligence.

        Although Rivera’s initial complaint was filed within the 2-year statute of

                                               2
limitations, she did not move to substitute the names of the individual officers and the

dispatcher until 14 months after she learned their identities. Rivera contends that her

proposed amendment is nonetheless permitted because it meets the conditions required

for relation back under Federal Rules of Civil Procedure 15(c). The defendants counter

that the amendment is time barred because it does not meet the requirements of Rule

15(c) or 15(a).

        In response to Rivera’s § 1983 failure-to-train claim, the Township avers that

Rivera failed to prove municipal liability because there is no evidence of a policy of

inadequate training, no proof of deliberate indifference to the rights of Township citizens,

and no evidence that the Township’s actions caused her constitutional violation.

        The District Court denied Rivera’s motion to amend the complaint to add the

newly-named defendants. Additionally, in a separate opinion, the District Court granted

summary judgment in favor of defendants Police Department and Township, denying

Rivera’s § 1983 claim against them, and denying Rivera’s motion for partial summary

judgment as to liability.

        The District Court had jurisdiction over Rivera’s claims brought under § 1983

pursuant to 28 U.S.C. §§ 1331 and 1343. See Garvin v. City of Phila.,

354 F.3d 215, 219 (3d Cir. 2003). In addition, the District Court had supplemental

jurisdiction over her state law claims under 28 U.S.C. § 1367. Id. This court has

jurisdiction under 28 U.S.C. § 1291 because the District Court’s order granting summary



                                             3
judgment to the Township and Police Department terminated the proceedings in the

District Court. Id. In addition, “[t]he determination that appellants’ claims are barred by

the statute of limitations is a final and reviewable decisions.” Nelson v. County of

Allegheny, 60 F.3d 1010, 1012 (3d Cir. 1995).

                                              I.

       The facts of the case are well known to the parties. However, certain salient

points deserve mention. On the night and early morning hours of December 16, 1998, the

Police Department received a series of 9-1-1 calls in which the caller threatened to kill

Cherry Hill police officers. The dispatcher believed the caller to be David Padilla, a man

with a history of placing harassing calls to the Police Department. When asked if he was

David Padilla, the caller eventually responded in the affirmative. Based on this

information, the Police Department dispatched officers to the home of David Padilla.

Upon arrival, the officers set up surveillance of Padilla’s apartment. Shortly thereafter,

Padilla placed a 9-1-1 call to say that he was watching the officers from his apartment.

Given Padilla’s history of threatening police, the officers regarded Padilla as a threat to

their safety and therefore ran into the woods for cover.

       As a result of the perceived threat, a police lieutenant on the scene decided to

activate the Tactical Response Team (“TRT”). Upon arrival, the TRT set up a secure

perimeter around the apartment, established additional surveillance of the apartment and

balcony, designated a sniper, and cordoned off the streets adjacent to the apartment. The



                                              4
TRT “entry team,” led by Sergeant Carney, took position in the hallway of Padilla’s

apartment.

       Then began a standoff lasting more than three hours. During that time, the

officers attempted to negotiate Padilla’s peaceful surrender through numerous phone calls

and face-to-face entreaty. After these efforts proved unsuccessful, Sergeant Carney

ordered the TRT to forcibly enter the apartment. Padilla was forced to the floor at

gunpoint and arrested. Rivera, allegedly not knowing who was breaking down the door,

climbed over the edge of the balcony in an effort to jump from Padilla’s fourth floor

balcony onto the second floor balcony below. In the process, she lost her grip and fell 20-

25 feet onto an awning below, sustaining injuries. This litigation followed.

                                               II.

       On November 24, 2000, Padilla filed suit in the United States District Court of

New Jersey against the Township and “Officers John Doe 1 through 20 (a fictitious

name), Police Officers and Police Officials.” On December 15, 2000, Rivera filed suit in

New Jersey Superior Court against the Township, the Police Department, and “John Doe

Police Officers I through X (fictitious names) and/or John Doe (a fictitious name).” By

order of March 21, 2001, Rivera’s state court action was removed to federal court and

consolidated with Padilla’s federal action.1

       On May 2, 2001, defendants submitted their initial disclosures, wherein they

 1
  Padilla’s claims are not before this court. Padilla is mentioned throughout this
memorandum only to provide context for Rivera’s action.

                                               5
named all individuals with knowledge of the facts, including every officer and civilian

employee involved in the incident. Plaintiffs took the depositions of the proposed

defendants from December 19, 2001 through February 27, 2002. Discovery ended

February 28, 2002. However, Rivera and Padilla did not move to amend their complaints

to add the names of the individual officers until July 22, 2002 and July 31, 2002,

respectively. These motions came over a year and a half after the statute of limitations

had run and almost five months after discovery closed. The United States Magistrate

Judge denied plaintiffs’ motions to amend on December 10, 2002. Rivera timely

appealed on December 27, 2002.2

       The District Court affirmed the Magistrate Judge’s denial of River’s motion to

amend on M arch 25, 2003. On June 30, 2003, the District Court granted summary

judgment in favor of defendants Police Department and the Township, denying Rivera’s §

1983 claim against them alleging failure to adequately train the officers and dispatcher.

                                            A.

       This court reviews a district court’s decision granting or denying leave to amend a

complaint for abuse of discretion. Krantz v. Prudential Investments Fund Mgmt., LLC,

305 F.3d 140, 144 (3d Cir. 2002). The standard of review for factual conclusions that a

district court made while considering a Rule 15 motion is clear error. Singletary v. Pa.



 2
  Padilla filed his notice of appeal outside the prescribed period for appealing a
magistrate judge’s order. Thus, Padilla’s appeal was time barred.


                                             6
Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001). “Furthermore, if the district court’s

decision regarding a 15(c) motion was based on the court’s interpretation of the Federal

Rules of Civil Procedure, [this court’s] review is plenary.” Id. This court exercises

plenary review of the district court's grant of summary judgment. Boyle v. County of

Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998).

                                             B.

       In reviewing the District Court’s decision, we must first determine the relevant

statute of limitations. In actions under § 1983, federal courts apply the forum state's

statute of limitations for personal injury. Sameric Corp. of Del., Inc. v. City of Phila., 142

F.3d 582, 599 (3d Cir. 1998) (citing Wilson v. Garcia, 471 U.S. 261, 276-78 (1985)).

Because New Jersey’s statute of limitations for personal injury is two years, see N.J.S.A.

2A:14-2,3 Rivera’s claims are subject to a two-year statute of limitations. See Mullen v.

Port Auth. of N.Y. & N.J., 100 F. Supp. 2d 249, 260 (D.N.J. 1999). A § 1983 cause of

action begins to accrue when the plaintiff knows, or has reason to know, of the injury on

which the action is based. Montgomery v. DeSimone, 159 F.3d 120, 126 (3d Cir. 1998).

Rivera knows, or has reason to know, that her cause of action began to accrue on the date

of the incident, December 16, 1998. Thus, the statute of limitations expired on December

16, 2000. Rivera filed her initial complaint on December 15, 2000, within the statute of



3
 N.J.S.A. 2A:14-2 provides, “[e]very action at law for an injury to the person caused by
the wrongful act, neglect or default of any person within this State shall be commenced
within 2 years next after the cause of any such action shall have accrued . . . .”

                                              7
limitations. However, Rivera did not move to amend the complaint to substitute real

identities for the John Doe defendants until July 2002. Because “[t]he naming of a John

Doe defendant in a complaint does not stop the statute of limitations for running or toll

the limitations period as to that defendant[,]” Garvin, 354 F.3d at 220, Rivera’s proposed

amendment is time barred unless it meets the requirements of Federal Rule of Civil

Procedure 15(c), which allows amendments to relate back to the filing date of the original

complaint. See Nelson, 60 F.3d at 1015.

       Federal Rule of Civil Procedure 15(c) permits amendment of a pleading to relate

back to the date of the original pleading when:

       (1) relation back is permitted by the law that provides the statute of
       limitations applicable to the action, or

                                            ***

       (3) the amendment changes the party or the naming of the party against
       whom a claim is asserted if the foregoing provision (2) is satisfied and,
       within the period provided by Rule 4(m) for service of the summons and
       complaint, the party to be brought in by amendment (A) has received such
       notice of the institution of the action that the party will not be prejudiced in
       maintaining a defense on the merits, and (B) knew or should have known
       that, but for a mistake concerning the identity of the proper party, the action
       would have been brought against the party.

Rule 15(c)(1) permits an amendment to relate back if relation back is permitted by the law

that provides the statute of limitations applicable to the action. As discussed above, New

Jersey law provides the statute of limitations applicable to Rivera’s § 1983 action.

Therefore, New Jersey law determines whether Rivera’s amendment will be permitted to



                                              8
relate back under 15(c)(1). See Cruz v. City of Camden, 898 F. Supp. 1100, 1107 (D.N.J.

1995).

         Under New Jersey law, “[i]n any action, . . . if the defendant's true name is

unknown to the plaintiff, process may issue against the defendant under a fictitious name,

stating it to be fictitious and adding an appropriate description sufficient for

identification.” N.J.R. 4:26-4. “To be entitled to the benefit of this rule, a plaintiff must

proceed with due diligence in ascertaining the fictitiously identified defendant's true name

and amending the complaint to correctly identify that defendant.” Claypotch v. Heller,

Inc., 823 A.2d 844, 848 (N.J. Super. Ct. App. Div. 2003) (citing Farrell v. Votator Div. of

Chemetron Corp., 299 A.2d 394, 399 (N.J. 1973)); DeRienzo v. Harvard Indus., Inc., 357

F.3d 348, 353 (3d Cir. 2004) (citing Farrell, 299 A.2d at 396). “In determining whether a

plaintiff has acted with due diligence in substituting the true name of a fictitiously

identified defendant, a crucial factor is whether the defendant has been prejudiced by the

delay in its identification as a potentially liable party and service of the amended

complaint.” Claypotch, 823 A.2d at 848.

         Thus, to determine whether Rivera’s amendment may relate back under New

Jersey law, we must first consider whether Rivera exercised due diligence in identifying

the officers. Next, we must determine whether Rivera acted with due diligence in

substituting the officer names as direct defendants once they were ascertained. Finally,

we must gauge whether the lapse of time has prejudiced the defendants.



                                               9
       The record reveals that Rivera failed to exercise due diligence and make a good

faith effort to discover the officers’ identities. Rivera claims that the defendants’ refused

to divulge the names of the officers. However, this mischaracterizes the facts. Although

the municipal attorney for the Township did, in fact, refuse to release incident reports to

Rivera’s then-attorney Frank Rose, the municipal attorney was not “stonewalling.”

Rather, she was reluctant to release the information because she had received requests

from three different attorneys all claiming to represent Rivera, including one who had an

ethics complaint filed against him. The municipal attorney notified Rivera’s current

attorney, Wayne Powell, Esq., that she would only release the information when it

became clear who represented Rivera. The municipal attorney’s objection to releasing the

incident information in the face of the confusion surrounding Rivera’s representation was

principled and hardly qualifies as “stonewalling.”

       Even assuming, arguendo, that the defendants were engaging in “stonewalling”

tactics, Rivera never sought the Court’s permission to take pre-filing depositions.

Furthermore, once the complaint was filed, Rivera never subpoenaed any information, nor

sought the Court’s intervention to resolve any alleged discovery disputes.

       In addition to her failure to diligently determine the officers’ names, Rivera failed

to act with due diligence in substituting the officer names as direct defendants once they

were identified. On May 2, 2001, defendants submitted their Rule 26(a) disclosures,

wherein they named the officers and civilian employee involved in the incident. The



                                             10
disclosures also contained the Cherry Hill Police Offense Reports and Investigative

Reports concerning the event, and a transcribed copy of a police interview of Padilla.

Despite this wealth of pertinent information, Rivera did not begin conducting depositions

until nearly 6 months later. On February 29, 2002, discovery was closed. Nonetheless,

for some inexplicable reason, Rivera failed to amend her complaint until nearly 5 months

later. As the District Court points out, “these motions to amend came over 14 months

after the defendants’ names were made known to plaintiffs through their initial

disclosures, and over 43 months after the date of the incident.” Waiting so long to

substitute the names demonstrates a lack of due diligence and is fatal to any attempt to

relate back under New Jersey law. See Johnston v. Muhlenberg Reg’l Med. Ctr., 740

A.2d 1122, 1125 (N.J. Super. Ct. App. Div. 1999).

       By the time Rivera moved to amend her complaint to rename the defendants, each

of the proposed defendants had already been deposed, without the benefit of counsel.

Defense counsel attended the depositions, but viewed the officers as fact witnesses

instead of clients. Being deposed without the benefit of counsel and subsequently being

named as a defendant constitutes undue prejudice against the proposed defendants. In

addition to creating prejudice against the proposed defendants, the District Court held that

the amendment prejudices the Township. We agree.

       New Jersey law therefore precludes Rivera’s amendments from relating back.

Because New Jersey law does not permit relation back, relation back is not allowed under



                                            11
15(c)(1). Nonetheless, relation back may still be permitted under Rule 15(c)(3). We

therefore turn to determine whether the amended complaint meets the conditions required

for relation back under 15(c)(3).

        Rule 15(c)(3) offers an alternative avenue for an amendment to relate back.

However, because Rivera failed to raise Rule 15(c)(3) in either the District Court or her

brief before this court, the claim is waived. Assuming, arguendo, that the Rule 15(c)(3)

claim is not waived, Rivera’s amendment still fails because it fails to meet the

requirements of 15(c)(3) on account of lack of notice and undue prejudice to the proposed

and existing defendants.

                                             III.

        Rivera asserts § 1983 claims against the individual officers and police dispatcher,

the Police Department, and the Township. As discussed above, the individual officers

and dispatcher cannot be sued because the amendment naming them as defendants does

not relate back and therefore is barred by the statute of limitations.

       Rivera’s claim against the Police Department is equally unsuccessful because the

Police Department cannot be sued. “In Section 1983 actions, police departments cannot

be sued in conjunction with municipalities, because the police department is merely an

administrative arm of the local municipality, and is not a separate judicial entity.”

DeBellis v. Kulp, 166 F. Supp. 2d 255, 264 (E.D. Pa. 2001). Because the Police

Department is merely an arm of the Township, the summary judgment granted to the



                                              12
Police Department on the § 1983 claim was proper. See N.J.S.A. 40A:14-118

(proclaiming that New Jersey police departments are “an executive and enforcement

function of municipal government.”).

       Only the claim against the Township remains. Section 1983 imposes civil liability

upon any person who, acting under the color of state law, deprives another individual of

any rights, privileges, or immunities secured by the Constitution or laws of the United

States. DeBellis, 166 F. Supp. 2d at 264. Unlike unincorporated police departments,

municipalities are legal entities amenable to suit for their unconstitutional policies or

customs. Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 658, 690 (1978). To

recover against a municipality, a plaintiff must “demonstrate that municipal policymakers,

acting with deliberate indifference or reckless indifference, established or maintained a

policy or well-settled custom which caused a municipal employee to violate plaintiffs'

constitutional rights and that such policy or custom was the ‘moving force’ behind the

constitutional tort.” Hansell v. City of Atlantic City, 152 F. Supp. 2d 589, 609 (D.N.J.

2001). However, a municipality may be liable if an employee acts unconstitutionally and

the municipality failed to adequately train or supervise that employee. City of Canton v.

Harris, 489 U.S. 378, 380 (1989).

        In the instant case, Rivera alleges that the Township failed to adequately train its

communications personnel how to identify a caller, and failed to adequately train its

police supervisors in deploying the TRT and Critical Incident Negotiations Team.



                                             13
However, Rivera’s allegations of inadequate training are unsuccessful because she fails to

demonstrate that the Township had a policy of inadequate training, fails to demonstrate

deliberate indifference, and fails to establish causation.

        Furthermore, it is insufficient for Rivera to point out alternatives which could

have been pursued by the Police Department. The Township must have a policy of

inadequate training so obvious as to rise to the level of deliberate indifference to the

rights of persons. Rivera has failed to satisfy this burden by failing to even demonstrate a

policy of inadequate training.

       A plaintiff must also “establish that the government policy or custom was the

proximate cause of the injuries sustained.” Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d

Cir. 1996). Assuming that the Township had a policy of inadequate training, Rivera must

prove that the officers’ lack of training caused them to violate her civil rights. However,

the record does not support such a claim.

        Because Rivera fails to satisfy her burden of establishing a municipal policy of

inadequate training, deliberate indifference, and causation, her failure-to-train claim

against the Township is unsuccessful. Accordingly, the District Court’s grant of summary

judgment in favor of the Township with regard to the § 1983 claim is affirmed.

                                             IV.

       For the aforementioned reasons, the judgment of the District Court will be

affirmed. Costs taxed against the appellants.



                                              14
