                                                                                FILED
                                                                   United States Court of Appeals
                                                                           Tenth Circuit

                                                                            May 23, 2008
                       UNITED STATES COURT OF APPEALS
                                                                        Elisabeth A. Shumaker
                                     TENTH CIRCUIT                          Clerk of Court



 DAVID L. BELL,

                Plaintiff - Appellant,

   v.                                                          No. 07-3204
                                                      (D. Ct. No. 06-CV-4026-JAR)
 THE CITY OF TOPEKA, KANSAS, a                                  (D. Kan.)
 municipal corporation; BUTCH FELKER,
 former mayor, as official of the city of
 Topeka, Kansas; JAMES A. MCCLINTON,
 former mayor, as official of the city of
 Topeka, Kansas; ED E. KLUMPP, Chief of
 the City of Topeka Police Department, as an
 official of the city of Topeka, Kansas;
 FOUR UNKNOWN NARCOTICS
 AGENTS OF THE CITY OF TOPEKA
 POLICE DEPARTMENT, as individuals
 and as officials of the city of Topeka,

                Defendants - Appellees.


                               ORDER AND JUDGMENT*


Before HENRY, Chief Circuit Judge, TACHA, and LUCERO, Circuit Judges.


        Plaintiff-Appellant David L. Bell filed this 42 U.S.C. § 1983 claim against the City

of Topeka and “Four Unknown Narcotics Agents of the City of Topeka Police



        *
        This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Department” after he was allegedly beaten during the execution of a search warrant on a

house in Topeka, Kansas. After the statute of limitations expired, Mr. Bell sought to

amend his complaint to name the specific officers involved in the beating. The district

court denied leave to amend, reasoning that the amendment did not relate back to the

original complaint under Fed. R. Civ. P. 15(c)(1)(C) and that neither equitable nor public

policy considerations affected the running of the limitations period. The court then

granted summary judgment in favor of the City of Topeka. We have jurisdiction under 28

U.S.C. § 1291, and we AFFIRM.

                                   I. BACKGROUND

       Just before midnight on March 3, 2004, Mr. Bell and his girlfriend drove to a

residence on Swygart Street in Topeka. Mr. Bell’s girlfriend went into the house while

Mr. Bell waited outside in his car. After a few minutes, Mr. Bell honked his horn to tell

his girlfriend to “come on.”

       Around this time, officers from the Topeka Police Department (“TPD”) arrived at

the residence with a search warrant. They were dressed in black clothing with “POLICE”

written on the back. Hearing the car honk, one or more officers broke out the window of

Mr. Bell’s car, opened the driver’s-side door, and pulled Mr. Bell out. Mr. Bell claims

that the officers immediately handcuffed him and shoved him against the car, causing him

to suffer a dental injury. Then, according to Mr. Bell, he was beaten on his legs and

lower back, after which he fell to the ground where the officers forced him to lie face

down in a puddle of water. He also claims the officers threatened to shoot him. He was

                                            -2-
arrested and later released.

       On March 2, 2006, nearly two years after the incident, Mr. Bell filed the complaint

in this case, alleging the officers violated his constitutional rights by using excessive

force. The complaint also contains claims against the City of Topeka for its alleged

failure to train and supervise the officers. Relevant to this appeal, Mr. Bell named as

defendants the City of Topeka and “Four Unknown Narcotics Agents of the City of

Topeka Police Department.”1 On May 12, 2006, as part of its initial disclosures under

Fed. R. Civ. P. 26, the City of Topeka provided Mr. Bell with the names of the individual

officers involved in the raid. On May 24, Mr. Bell filed an amended complaint

substituting the officers’ names for the “Unknown Officers.”

       Due to the advanced stage of the litigation, the district court struck the amended

complaint and instructed Mr. Bell to file a motion seeking leave to amend. See Fed. R.

Civ. P. 15(a)(1)–(2). After considering arguments from all parties, the court denied the

motion, reasoning that the proposed amendment was futile because the claims against the

individual officers were barred by a two-year statute of limitations. See Kan. Stat. Ann. §

60-513(a). The court then granted summary judgment in favor of the sole named

defendant, the City of Topeka.




       1
         Mr. Bell also named former Mayor Butch Felker, former Mayor James A.
McClinton, and Chief of the City of Topeka Police Department Ed E. Klumpp. The
district court later dismissed these defendants, and Mr. Bell does not challenge that order.

                                             -3-
                                    II. DISCUSSION

A.     Amending the Complaint

       1.     Addition of New Parties

       Under Fed. R. Civ. P. 15(a)(2), leave to amend a complaint shall be freely given

when justice so requires. In general, a court may refuse leave to amend only on “a

showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory

motive, failure to cure deficiencies by amendments previously allowed, or futility of

amendment.” Duncan v. Manager, Dep’t of Safety, City & County of Denver, 397 F.3d

1300, 1315 (10th Cir. 2005) (quotation omitted). We have explained that a “proposed

amendment is futile if the complaint, as amended, would be subject to dismissal.”

Watson ex rel. Watson v. Beckel, 242 F.3d 1237, 1239–40 (10th Cir. 2001). “This court

reviews de novo a district court’s refusal to grant leave to amend a complaint based on the

court’s conclusion that the amendment would be futile.” Id. at 1239.

       In this case, Mr. Bell seeks to amend the complaint after the statute of limitations

has run.2 Therefore, the proposed amendment is futile unless it relates back to the

original complaint under Fed. R. Civ. P. 15(c). Substituting a named defendant for an

original, unknown “John Doe” defendant amounts to adding a new party, see Garrett v.

Fleming, 362 F.3d 692, 696 (10th Cir. 2004), and an amendment that adds a new party


       2
       Kansas’s two-year personal-injury statute of limitations under Kan. Stat. Ann.
§ 60-513(a)(4) applies in this case. See Blake v. Dickason, 997 F.2d 749, 750 (10th Cir.
1993) (“[T]he forum state’s personal injury statute of limitations should be applied to all
§ 1983 claims.”).

                                             -4-
relates back to the complaint when the party to be brought in by amendment “[1] received

such notice of the action such that it will not be prejudiced in defending on the merits;

and [2] knew or should have known that the action would have been brought against it,

but for a mistake concerning the proper party’s identity.” Fed. R. Civ. P.

15(c)(1)(C)(i)–(ii).

       The district court properly denied Mr. Bell leave to amend. As a matter of law,

there was no mistake concerning the identity of the individual officers in this case. We

have specifically held that “a plaintiff’s lack of knowledge of the intended defendant’s

identity is not a mistake concerning the identity of the proper party within the meaning of

[Rule 15(c)(1)(C)].” Garrett, 362 F.3d at 696 (quotation omitted). In other words, a

“plaintiff’s designation of an unknown defendant . . . in the original complaint is not a

formal defect of the type [the rule] was meant to address,” and a later amendment that

specifically names that defendant does not relate back to the original complaint. Id. at

697.

       2.     Statute of Limitations

       Mr. Bell argues that the two-year statute of limitations should be equitably tolled,

making the amendment timely and relation back irrelevant. We apply Kansas law on this

point. See id.; Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995). In Kansas, a trial

court cannot toll a limitations period; only the legislature, by statute, may do so. See

McCoy v. Wesley Hosp. & Nurse Training Sch., 362 P.2d 841, 847 (Kan. 1961);

Underhill v. Thompson, 158 P.3d 987, 995 (Kan. Ct. App. 2007). Mr. Bell, however,

                                             -5-
does not cite any statutory tolling provisions in his brief, let alone one that would apply in

these circumstances.

       Raising a somewhat similar argument, Mr. Bell contends that the defendants

should be equitably estopped from asserting the statute of limitations as a defense. The

Kansas Supreme Court has explained the showing required by a party asserting equitable

estoppel:

       A party asserting equitable estoppel must show that another party, by its
       acts, representations, admissions, or silence when it had a duty to speak,
       induced it to believe certain facts existed. It must also show it rightfully
       relied and acted upon such belief and would now be prejudiced if the other
       party were permitted to deny the existence
       of such facts.

Bowen v. Westerhaus, 578 P.2d 1102, 1105 (Kan. 1978) (quotation omitted). Moreover,

with reference to the statute of limitations, Kansas courts have described equitable

estoppel in the following way:

       [A] defendant, who has acted in such a fashion that his conduct is sufficient
       to lull his adversary into a false sense of security forestalling the filing of
       suit until after the statute [of limitations] has run, will be precluded from
       relying on the bar of the statute.

Coffey v. Stephens, 599 P.2d 310, 312 (Kan. Ct. App. 1979).

       Kansas has applied this theory in varying circumstances. For example, in

Robinson v. Shah, which Mr. Bell cites in his brief, the defendant doctor negligently left

surgical sponges in the plaintiff’s body. 936 P.2d 784, 787–88 (Kan. Ct. App. 1997).

After complaining of pain, x-rays were taken that revealed to the doctor the presence of

the sponges. Id. at 787. The doctor, however, told the plaintiff that the x-rays did not

                                             -6-
reveal anything unusual. Id. Ten years and several doctors later, the plaintiff learned the

truth and sued the doctor. Id. at 788. The Kansas Court of Appeals held that the doctor

was estopped from asserting the statute of limitations as a defense. Id. at 798.

       In this case, Mr. Bell argues that the defendants should be estopped from asserting

the limitations defense because the city concealed the officers’ identity from him until

after the limitations period had expired. In support of his argument, Mr. Bell alleges the

following facts: Six weeks after his injuries, in approximately May 2004, Mr. Bell

contacted the TPD to file a complaint because his car had been damaged in the incident.

The TPD (Mr. Bell does not name any specific person) told him that he could not file a

complaint unless he knew the names of the officers. Mr. Bell told the TPD he had a case

number that corresponded to his arrest. The TPD told him “that was not good enough.”

       Thereafter, and for reasons that are unclear, Mr. Bell states that he was required to

call and check in with the Shawnee County Clerk of the District Court on a regular basis.

After approximately a year of doing so, someone from the clerk’s office told Mr. Bell that

he no longer needed to call and that he would be notified if charges were filed against

him. Mr. Bell then contacted the Shawnee County District Attorney’s office, but could

not get an answer as to whether that office would be filing charges. In addition, Mr. Bell

was told by that office that it could not give him the names of the officers and that he

needed a lawyer. In the summer of 2005, the district attorney’s office informed Mr. Bell

“that they could not divulge such information to [him] because the police reports

containing the names of the officers were privileged information and [Mr. Bell] would

                                             -7-
have to have a court order directing the District Attorney to release such information.”

During this time, Mr. Bell also sought the advice of more than twenty private attorneys,

none of whom would take his case.

       On February 8, 2006, however, Mr. Bell met with an attorney (his counsel in this

case) who agreed to represent him. On February 24, pursuant to Kan. Stat. Ann. § 12-

105b, Mr. Bell’s counsel wrote to the Topeka City Attorney to notify him of his intent to

file a tort claim against the city. On March 6, after the complaint had been filed and after

the statute of limitations had run, Mr. Bell’s counsel wrote to the Shawnee County

District Attorney asking for the names of the individual officers. The district attorney

responded the next day. He told counsel that the case file on that particular incident had

never been sent to the district attorney’s office to be reviewed for a possible criminal

prosecution, suggesting that he did not have the information that counsel requested. The

district attorney went on to state that, in any event, the office’s investigative files are not

subject to disclosure unless the files constitute Brady3 material.

       The district court did not abuse its discretion in deciding not to apply the doctrine

of equitable estoppel in this case. Cf. Garrett, 362 F.3d at 697 (applying abuse-of-

discretion review to district court’s decision involving equitable tolling). To begin, Mr.

Bell’s allegations regarding the Shawnee County Clerk’s Office and the Shawnee County




       3
           Brady v. Maryland, 373 U.S. 83 (1963).

                                              -8-
District Attorney’s Office are irrelevant, as neither are parties to this lawsuit.4 See Hughs

v. Valley State Bank, 994 P.2d 1079, 1087 (Kan. Ct. App. 1999). Moreover, because Mr.

Bell’s argument is premised on omissions rather than affirmative misrepresentations, he

must show that the city (i.e., the TPD or the city attorney) had a duty to speak in this

situation. See Bowen, 578 P.2d at 1105 (“A party asserting equitable estoppel must show

that another party, by its acts, representations, admissions, or silence when it had a duty

to speak, induced it to believe certain facts existed.” (emphasis added)). Nowhere,

however, does Mr. Bell assert—let alone demonstrate—that such a duty exists under

these circumstances. He did not even ask the city attorney for the names of the officers,

and it is not apparent that Mr. Bell gave the TPD enough information to enable it to

provide him with the officers’ names.

       Moreover, and quite significantly, the parties have stipulated that the front page of

the Kansas Standard Offense Report in TPD Case No. 5548-04, the incident giving rise to

the allegations in Mr. Bell’s complaint, is an open public record subject to disclosure

under the Kansas Open Records Act, Kan. Stat. Ann. § 45-215 et seq. If Mr. Bell had

asked for this document, he would have discovered the name of the reporting officer, K.

Souma, one of the officers Mr. Bell seeks to name as a defendant. And, as the district


       4
       Mr. Bell also mentions the doctrine of unique circumstances as a basis for
avoiding the bar of the statute of limitations. Kansas courts have applied this doctrine
when a nonparty error causes an untimely filing. See Underhill, 158 P.3d at 995–96.
This doctrine does not apply here, however, because Mr. Bell does not allege that a
nonparty (e.g., the district attorney) committed an error that caused him to file an
untimely motion to amend the complaint.

                                             -9-
court reasoned, Mr. Bell might then have used discovery methods—such as deposing

Officer Souma—to learn the names of the other officers. We further note that counsel for

Mr. Bell admits that, before he filed the complaint in this case, he knew the name of one

of the other officers he now seeks to add as a defendant. Thus, equity will not aid Mr.

Bell when it is clear that he was capable of identifying the officers through other means.

See Robinson, 936 P.2d at 797 (noting that equitable estoppel “‘is not available for the

protection of one who has suffered loss solely by reason of his own acts or omissions.

Equity aids the vigilant and not those who slumber on their rights.’” (quoting Rex v.

Warner, 332 P.2d 572, 579 (Kan. 1958))).

       Mr. Bell also contends that the Kansas Open Records Act prohibited the disclosure

of the officers’ names and that this counsels in favor of either estopping the defendants

from asserting the statute-of-limitations defense or otherwise permitting his claim to

proceed as timely for public policy reasons.5 The Kansas Open Records Act states that

“public records shall be open for inspection by any person unless otherwise provided by

this act.” Kan. Stat. Ann. § 45-216(a). Section 45-221(a)(10)(C) lists one of those

circumstances in which a agency need not open its records for public inspection:

       (a) Except to the extent disclosure is otherwise required by law, a public
       agency shall not be required to disclose:



       5
         As the district court pointed out, it is not clear whether Mr. Bell presented this
argument to the magistrate judge, and, accordingly, whether he preserved its review by
the district court. Out of an abundance of caution, however, the district court addressed
this issue.

                                            -10-
                                            ...

              (10) Criminal investigation records, except as provided herein. The
              district court, in an action brought pursuant to K.S.A. 45-222, and
              amendments thereto, may order disclosure of such records, subject to
              such conditions as the court may impose, if the court finds that
              disclosure:

                                            ...

                     (C) would not reveal the identity of any confidential source or
                     undercover agent[.]

Thus, the provision allows an agency not to disclose criminal investigation records when

doing so would compromise the identity of an undercover officer.

       Mr. Bell argues that this provision prohibited any agency—including, apparently,

the TPD—from giving him the individual officers’ names because the officers wore

masks, thus making them “undercover” agents within the meaning of § 45-221(a)(10)(C).

We disagree with this interpretation of the statute. An undercover officer is one who does

not disclose his role or identity as an officer. Black’s Law Dictionary 71 (8th ed. 2004).

Here, it is undisputed that all the officers involved wore clothing with the word

“POLICE” on the back, which clearly indicated their status as police officers. Moreover,

the City of Topeka (through the TPD) has never contended that the officers involved in

the incident were undercover agents and has never invoked the protections of this

statutory provision. Indeed, Mr. Bell never even filed an open-records request in this

case. And, as we explained above, filing such a request would have led Mr. Bell to

discover at least one of the individual defendants Mr. Bell now seeks to name in the


                                            -11-
complaint. Even if the city had denied this request, Mr. Bell could have asked a court to

order disclosure. See Kan. Stat. Ann. § 45-221(a)(10). Given these facts, the district

court acted well within its discretion when it refused to alter the running of the statute of

limitations or preclude the defendants from asserting it as a defense.

B.     Summary Judgment in Favor of the City

       At the outset, we note that both parties violated our Court’s rules by failing to

include in the record the motion for summary judgment, supporting brief, and response.

See 10th Cir. R. 10.3(D)(2); Been v. O.K. Indus., Inc., 495 F.3d 1217, 1235 n.13 (10th

Cir. 2007). We are under no obligation to remedy this failure by obtaining for ourselves

the relevant filings from the district court. See 10th Cir. R. 10.3(B); Rios v. Bigler, 67

F.3d 1543, 1553 (10th Cir. 1995). Moreover, without these documents, we hesitate to

reverse the district court’s order because we cannot examine the evidence or arguments

made below. See Questar Pipeline Co. v. Grynberg, 201 F.3d 1277, 1292 (10th Cir.

2000) (“[W]e are reluctant to overturn a district court’s ruling without being able to

examine the evidence or arguments it heard in making its ruling.”). Compounding the

problems posed by this failure, Mr. Bell has not pointed to a specific error committed by

the district court, nor does he reference record facts in support of his claims.6 Indeed, he


       6
         In the fact section of his brief, Mr. Bell cites to portions of the record that contain
reports evaluating the TPD’s narcotics unit. Although these reports describe police
misconduct and recommend changes in the training and supervision of officers, they do
not document incidents involving the use of excessive force by officers or recommend
changes in the training or supervision of officers in this regard. Because the deficiencies
in training and supervision identified in these reports are not related to the constitutional

                                              -12-
devotes fewer than two pages of his briefing on appeal to contest the district court’s order.

See Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir. 1998) (“Arguments

inadequately briefed in the opening brief are waived, and bald assertions in briefs that

there are genuine issues of material fact are insufficient to merit reversal of summary

judgment.” (internal citations omitted)). Therefore, in light of this inadequate argument

and insufficient record, we will not reverse the district court’s decision.

                                    III. CONCLUSION

       For the foregoing reasons, we AFFIRM the district court’s denial of leave to

amend the complaint and the court’s entry of summary judgment in favor of the City of

Topeka.

                                           ENTERED FOR THE COURT,



                                           Deanell Reece Tacha
                                           Circuit Judge




deprivation Mr. Bell alleges, this evidence does not support Mr. Bell’s claims against the
city. See Brown v. Gray, 227 F.3d 1278, 1290 (10th Cir. 2000) (noting that “the
identified deficiency in a city’s training program must be closely related to the ultimate
injury, so that it actually caused the constitutional violation” (quotations and citations
omitted)).

                                             -13-
