                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
_______________________________________
                                        )
                                        )
DANIEL SIMMONS,                        )
      Plaintiff,                       )
                                       )
             v.                        )    Civil Action No. 07-493 (RCL)
                                       )
DISTRICT OF COLUMBIA, et al.,          )
      Defendants.                      )
                                       )
_______________________________________)


                                  MEMORANDUM OPINION

        Before the Court is defendants’ John Does 1–5 Motion to Dismiss or, in the Alternative,

Motion for Partial Summary Judgment. Upon consideration of the motion, ECF No. 60, the

opposition thereto, ECF No. 61, the reply brief, ECF No. 62, applicable law, and the entire

record, the Court will grant the motion for the reasons stated below.

   I.      BACKGROUND

        Plaintiff has alleged that when he was incarcerated at the D.C. Detention Facility,

defendants the District of Columbia and John Does 1–5 violated his rights. Plaintiff filed his

initial complaint in 2007. Compl., Mar. 15, 2007, ECF No. 1. The Court later dismissed all of the

counts for failure to state a claim, except those relating to plaintiff’s overdetention, which the

Court stayed pending further proceedings in Barnes v. District of Columbia, Civil No. 06-315

(D.D.C.). Mem. Order 6, 10–11, Mar. 27, 2008, ECF No. 18. Plaintiff then filed an amended

complaint, pleading four counts: (I) overdetention in violation of the Fifth Amendment; (II) an

unreasonable body-cavity search in violation of the Fourth Amendment; (III) common-law

negligence in overdetaining plaintiff, housing plaintiff with a convicted murderer, and



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conducting an unreasonable body-cavity search; and (IV) common-law negligent supervision,

training, and hiring in overdetaining plaintiff, housing plaintiff with a convicted murderer, and

conducting an unreasonable body-cavity search. Am. Compl., Mar. 10, 2009, ECF No. 29.

Defendant the District of Columbia filed a motion for partial summary judgment, July 27, 2010,

ECF No. 53, which the Court granted in part and denied in part, Order, Nov. 9, 2010, ECF No.

56. Because only the District of Columbia moved for partial summary judgment, the Court did

not consider claims against John Does 1–5. See Mem. Op. 2 n.1, Nov. 9, 2010, ECF No. 57.

         Defendants John Does 1–5 now move for dismissal, or, in the alternative, summary

judgment as to Counts II and III of Plaintiff’s Amended Complaint. John Does 1–5 do not move

for dismissal or summary judgment as to Count I, because this overdetention claim has been

stayed, and they do not move for dismissal or summary judgment as to Count IV, because that

Count only applies to the District of Columbia, not to John Does 1–5. On December 14, 2010,

the Court granted leave for this motion to be filed. Order, Dec. 14, 2010, ECF No. 59.

   II.      ANALYSIS

         The September 4, 2009, scheduling order in this case dictates, in relevant part, that fact

discovery is to be completed within 120 days of the order, that plaintiff’s expert report(s) and

information shall be served no later than 45 days after the close of fact discovery, that

defendants’ expert report(s) and information shall be served no later than 75 days after the close

of fact discovery, that all discovery on the parties’ experts shall close 105 days after the close of

fact discovery, and that plaintiff has leave to file amendments to the First Amended Complaint to

name the John Doe defendants until thirty days after the close of discovery. Order, Sept. 4, 2009,

ECF No. 37. After several extensions of time, the Court ultimately ordered that fact discovery

close on April 2, 2010, and that all associated deadlines that relied upon the close of fact



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discovery for their calculation be similarly extended. Order, Feb. 16, 2010, ECF No. 52. Based

on those two orders, the scheduling in this case was as follows: close of fact discovery: April 2,

2010; service of plaintiff’s expert report(s) and information: May 17, 2010; service of

defendants’ expert report(s) and information: June 16, 2010; close of expert discovery: July 16,

2010; leave to file amendments to the First Amended Complaint to name the John Doe

defendants: August 15, 2010. Neither party has filed a motion for extension of any of these

deadlines.

       Under this timetable, plaintiff was permitted to file amendments to the First Amended

Complaint to name the John Doe defendants on or before August 15, 2010. Plaintiff failed to do

so. Only in his opposition to the pending motion does plaintiff attempt to excuse this failure,

when he states: “As Defendant well knows, Plaintiff has not been able to identify the John Doe

Defendants through Discovery. Defendant did not provide the names of the correctional officers

involved in the events Plaintiff complained of making it impossible for Plaintiff to identify the

John Doe Defendants.” Pl.’s Opp’n 1. Defendants John Does 1–5 note in their reply that

“[plaintiff] never complained of any purported deficiencies in the District of Columbia’s

discovery responses, never moved to compel additional information, and never deposed any

District of Columbia employee or representative.” Defs.’ Reply 1. The Court agrees with

defendants John Does 1–5. Both fact and expert discovery are now complete in this case, and

plaintiff never indicated any deficiency in discovery. Even after the completion of discovery,

plaintiff has still indicated that it is “impossible” to name the John Doe defendants.

Unfortunately for plaintiff, the time has now run to name the John Doe defendants.

       Plaintiff may bring an action against unknown John Doe defendants, but plaintiff must

substitute named defendants for those unknown defendants after the completion of discovery. As



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the Eighth Circuit has held: “[A]n action may proceed against a party whose name is unknown if

the complaint makes allegations specific enough to permit the identity of the party to be

ascertained after reasonable discovery.” Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d

35, 37 (8th Cir. 1995); see also Landwehr v. FDIC, Civ. No. 09-716, 2010 WL 2572077, at *3

(D.D.C. June 28, 2010); Chung v. U.S. Dep’t of Justice, Civ. No. 00-1912, 2001 WL 34360420,

at *6–7 (D.D.C. Sept. 20, 2001) (holding that unknown defendants should not be dismissed

before discovery when discovery could reasonably help plaintiff to identify the unknown

defendants, while noting that the unknown defendants must “eventually” be dismissed). Because,

even after the completion of discovery, plaintiff is unable to substitute named defendants for the

John Doe defendants, the action can no longer proceed against the John Doe defendants.

       Furthermore, as defendants argue, Defs.’ Mot. 1, and because plaintiff has not identified

defendants John Does 1–5, plaintiff failed to serve process on John Does 1–5. Plaintiff has 120

days to serve a defendant after filing his complaint, or else the Court “must dismiss the action

without prejudice against that defendant or order that service be made within a specific time.”

Fed. R. Civ. P. 4(m). The Court must, however, extend time for service if plaintiff “shows good

cause for the failure.” Id. Plaintiff has not yet served John Does 1–5. Plaintiff filed his amended

complaint on March 10, 2009. Plaintiff did not meet his service of process deadline of July 8,

2009 (120 days after March 10, 2009). Even assuming that the 120 days began to run on the date

by which plaintiff was permitted to file amendments to the First Amended Complaint to name

the John Doe defendants—that is, December 13, 2010 (120 days after August 15, 2010), plaintiff

did not meet this service of process deadline either. Plaintiff has not shown good cause for his

failure to meet these deadlines. His failure to identify John Does 1–5 does not constitute good

cause, because he has not shown good cause for that failure to identify. Nor has he shown that



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any extension of time would permit him to identify and serve these defendants. Thus, the Court

will dismiss without prejudice John Does 1–5 pursuant to Rule 4(m).

          Because the Court is dismissing Counts II and III of the Amended Complaint on these

grounds, it does not reach the issues of dismissal on the basis of personal jurisdiction or

summary judgment.

   III.      CONCLUSION

          For the reasons stated, the Court will grant defendants’ John Does 1–5 Motion to Dismiss

or, in the Alternative, Motion for Partial Summary Judgment.

          The Court will furthermore order that Counts II and III of plaintiff’s First Amended

Complaint be dismissed without prejudice as to defendants John Does 1–5.

          A separate order consistent with this memorandum opinion shall issue this date.

          Signed by Royce C. Lamberth, Chief Judge, on January 5, 2011.




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