                                                               F I L E D
                                                       United States Court of Appeals
                                                               Tenth Circuit
                                     PUBLISH
                                                               MAR 30 2004
                 UNITED STATES COURT OF APPEALS
                                                             PATRICK FISHER
                                                                   Clerk
                              TENTH CIRCUIT



JONATHAN T. GARRETT,

            Plaintiff - Appellant,
      v.                                       No. 03-1143
L.E. FLEMING, Warden, United
States Penitentiary, Florence,
Colorado; JOHN D. SMITH, and Six
Unidentified Corrections Officers of
the Administrative Maximum Security
Unit at the United States Penitentiary,
Florence, Colorado; D. B.
WILLIAMS, Lt., in his individual
capacity; T. B. SMITH, Lt., in his
individual capacity; L. TRUJILLO,
Officer, in his individual capacity; J.
BALTAZAR, Officer, in his individual
capacity; D. PIERRE II, Officer, in his
individual capacity; R. RAU, Capt., in
his individual capacity; and GIVENS,
Officer (first name unknown), in his
individual capacity,

            Defendants - Appellees.


       APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE DISTRICT OF COLORADO
                   (D.C. NO. 96-Z-1379(BNB) )
Submitted on the briefs:

Dennis W. Hartley, Dennis W. Hartley, P.C., Colorado Springs, Colorado, for
Plaintiff - Appellant.

John W. Suthers, United States Attorney, and Kathleen L. Torres, Assistant
United States Attorney, Denver, Colorado, for Defendants - Appellees.


Before MURPHY , ANDERSON , and TYMKOVICH , Circuit Judges.


ANDERSON , Circuit Judge.




      Federal prisoner Jonathan Garrett filed this civil rights action pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics            , 403 U.S.

388 (1971). The district court dismissed Garrett’s complaint as barred by the

applicable two-year statute of limitations. On appeal, Garrett argues (1) that the

district court erred by holding that his amended complaints did not relate back to

the date of the original complaint under Fed. R. Civ. P. 15(c), and (2) that the

court’s refusal to toll the statute of limitations under the doctrine of equitable

estoppel was an abuse of discretion. For the reasons set forth below, we affirm.      *




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.

                                           -2-
                                    BACKGROUND

      Garrett’s civil rights claim, alleging excessive force and denial of medical

care by correctional officers, arose out of a July 14, 1995, prison yard incident.

Garrett filed his initial complaint pro se on June 12, 1996, naming as defendants

Kathleen M. Hawk, then the Director of the Federal Bureau of Prisons, and thirty

“John Does,” representing correctional officers whose names, according to

Garrett, were unknown to him.   1
                                    On August 19, 1996, the district court dismissed

Garrett’s complaint for failing to exhaust prison administrative remedies, but we

reversed the district court’s dismissal on October 28, 1997, and remanded for

further proceedings.   Garrett v. Hawk , 127 F.3d 1263, 1267 (10th Cir. 1997),

overruled by Booth v. Churner , 532 U.S. 731, 741 (2001).    2
                                                                 On September 28,

1998, Garrett, now represented by counsel, filed an amended complaint




      1
       The record indicates that Garrett addressed initial requests for information
concerning the July 14, 1995, incident to both the prison warden and the Federal
Bureau of Prisons in late 1995 and early 1996 and was informed that no
documents related to the incident could be located. Beginning in June 1998,
Garrett submitted another series of information requests to the Federal Bureau of
Prisons and was ultimately able to obtain some relevant records.
      2
        No party raised the exhaustion issue in light of Booth, and we need not
address it here. Cf. Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1208 (10th
Cir. 2003) (holding that a prisoner’s failure to exhaust administrative remedies
under 42 U.S.C. § 1997e(a) does not implicate a court’s subject matter
jurisdiction).

                                           -3-
dismissing Hawk as a defendant and naming C. Fleming,          3
                                                                   John Smith, and six

“John Does” as defendants. On March 30, 1999, Garrett filed a second amended

complaint adding D.B. Williams, T.B. Smith, L. Trujillo, J. Baltazar, D. Pierre II,

R. Rau, and Officer Givens as named defendants.

       Defendants Fleming, T.B. Smith, Trujillo, Pierre, Rau, and Givens filed a

joint motion to dismiss on October 18, 1999, asserting that the two-year statute of

limitations had expired on Garrett’s claim.     4
                                                    In response, Garrett argued that his

amended complaints naming these defendants related back, under Rule 15(c), to

the date of his original complaint, filed within the statutory period, or

alternatively, that the statute of limitations should be equitably tolled because the

defendants deliberately sought to prevent him from learning their identities within

the statutory period. Due to Garrett’s presentation of matters outside the

pleadings, the magistrate judge construed defendants’ motion as a motion for

summary judgment and on January 21, 2000, recommended it be granted. The

recommendation concluded that Rule 15(c)’s relation back provision did not apply

because, as a matter of law, Garrett’s lack of knowledge of defendants’ names at

the time of the original complaint could not satisfy the “mistake” requirement of

       3
           Garrett was clearly referring here to L.E. Fleming, associate warden of the
prison.
       4
        The parties do not dispute that Colorado’s two-year statute of limitations
for personal injury claims applies here, see Colo. Rev. Stat. § 13-80-102, nor that
the statute began to run on the date of the prison yard incident, July 14, 1995.

                                              -4-
Rule 15(c)(3)(B). Appellant’s App., tab 2, at 8. In response to Garrett’s

equitable tolling argument, the recommendation recognized that Garrett “did

experience some difficulties in obtaining the information he requested” but

concluded that “[t]here is no evidence . . . that Defendants attempted to conceal

their identity such that equitable tolling of the statute of limitations would be

appropriate.” Id. at 8, 9.

       The recommendation further indicated that the parties must file any

objections to its conclusions within ten days. Garrett filed an objection on

March 8, 2000. The district court recognized that the objection was untimely but

addressed its merits “in the interests of justice.”   Id. tab 3, at 12. The court

reached the same conclusions as the magistrate judge and granted the motion to

dismiss, adopting the magistrate judge’s findings and recommendation.

       Based on the district court’s ruling with regard to the above defendants,

defendants Williams and Baltazar filed a motion to dismiss on December 29,

2000, arguing that Garrett’s claims against them were precluded under the statute

of limitations and the law of the case doctrine. On November 2, 2001, the

magistrate judge recommended granting their motion. On November 7, 2001,

Garrett objected on the same bases he had asserted previously. Determining that

its June 28, 2000, ruling constituted the law of the case, the district court

overruled the objection and granted the motion to dismiss on April 19, 2002.


                                              -5-
       John Smith, the only remaining defendant, filed a motion to dismiss on

May 1, 2002, also asserting law of the case doctrine and the statute of limitations.

The magistrate judge recommended granting the motion on February 5, 2003.

Garrett filed an objection on February 14, 2003. On March 27, 2003, the district

court overruled the objection, granted Smith’s motion to dismiss, and ordered the

dismissal of Garrett’s complaint and cause of action. Garrett brought this appeal.



                                      DISCUSSION

       We review de novo the district court’s application of Rule 15(c) to

undisputed facts, a “purely legal interpretation.”        Slade v. U.S. Postal Serv.   , 875

F.2d 814, 815 (10th Cir. 1989);     see also Miller v. Am. Heavy Lift Shipping         , 231

F.3d 242, 247 (6th Cir. 2000). We review the district court’s refusal to apply

equitable tolling for an abuse of discretion.         United States v. Clymore , 245 F.3d

1195, 1198 (10th Cir. 2001);      Arnold v. Air Midwest, Inc.     , 100 F.3d 857, 861

(10th Cir. 1996). We address each of these issues in turn.         5




       5
        The defendants-appellees argue that because Garrett’s objection to the
magistrate’s first recommendation was untimely, this court’s “firm waiver rule”
should apply here to preclude appellate review of this case. See Key Energy Res.
Inc. v. Merrill (In re Key Energy Res. Inc.), 230 F.3d 1197, 1199-1200 (10th Cir.
2000). However, as indicated above, Garrett’s objections to the second and third
recommendations were filed within the permissible ten-day period. Further, the
district court’s June 28, 2000, ruling addressed Garrett’s first objection despite its
untimeliness, and the district court then considered that ruling as the law of the
                                                                        (continued...)

                                                -6-
      Rule 15(c) provides that an amended pleading will relate back to the date of

the original pleading when

              (2) 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, 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.

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

      Here, Garrett’s substitution of named defendants for the original unknown

“John Doe” defendants amounted to adding a new party.         See Watson v. Unipress,

Inc. , 733 F.2d 1386, 1389 (10th Cir. 1984);     see also Tapia-Ortiz v. Doe , 171 F.3d

150, 152 (2d Cir. 1999) (per curiam) (“[I]t is familiar law that ‘John Doe’

pleadings cannot be used to circumvent statutes of limitations because replacing a

‘John Doe’ with a named party in effect constitutes a change in the party sued.”


      5
       (...continued)
case for purposes of responding to the timely second and third objections.
Appellant’s App., tab 6, at 47; tab 8, at 58. The defendant-appellees cite no
authority to suggest that we are precluded from reviewing the underlying
reasoning behind the district court’s rulings on the second and third objections.
To conduct such a review, we must in effect review the June 28 ruling. As we
affirm the district court’s conclusions in that ruling, application of the firm
waiver rule here would be pointless.

                                           -7-
(internal quotation marks omitted)). Thus, all requirements of Rule 15(c)(3) must

be met in order for Garrett’s amended pleadings to relate back to the date of the

original. Alexander v. Beech Aircraft Corp.        , 952 F.2d 1215, 1226-27 (10th Cir.

1991).

         As noted above, the district court ruled that the requirements of Rule

15(c)(3) were not satisfied here because, as a matter of law, 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)(3)(B). We agree

with this interpretation of Rule 15(c)(3)(B), which is in line with prevailing law

in seven of the eight circuits to have considered this issue.     See Wayne v. Jarvis ,

197 F.3d 1098, 1103-04 (11th Cir. 1999);       Baskin v. City of Des Plaines , 138 F.3d

701, 704 (7th Cir. 1998);    Jacobsen v. Osborne , 133 F.3d 315, 321 (5th Cir. 1998);

Cox v. Treadway , 75 F.3d 230, 240 (6th Cir. 1996);        Barrow v. Wethersfield

Police Dep’t , 66 F.3d 466, 470 (2d Cir. 1995),       modified , 74 F.3d 1366 (2d Cir.

1996); W. Contracting Corp. v. Bechtel Corp.        , 885 F.2d 1196, 1201 (4th Cir.

1989). But see Singletary v. Pa. Dep’t of Corr.       , 266 F.3d 186, 200 (3d Cir. 2001).

As the Eleventh Circuit observed, the Advisory Committee Notes to Rule 15(c)(3)

indicate that “the mistake proviso [was included] . . . in order to resolve ‘the

problem of a misnamed defendant’ and allow a party ‘to correct a formal defect

such as a misnomer or misidentification.’”         Wayne , 197 F.3d at 1103 (quoting


                                             -8-
Fed. R. Civ. P. 15(c)(3), Advisory Committee Notes to 1991 Amendment). Thus,

“‘the rule is meant to allow an amendment changing the name of a [defendant] to

relate back to the original complaint only if the change is the result of’” such a

formal defect.   Id. (quoting Barrow , 66 F.3d at 469). A plaintiff’s designation of

an unknown defendant as “John Doe” in the original complaint is not a formal

defect of the type Rule 15(c)(3) was meant to address. We therefore hold that the

district court did not err by holding that Garrett’s amended complaints did not

relate back to the date of his original complaint.   6



       We also hold that the district court did not abuse its discretion by failing to

apply equitable tolling to the statute of limitations. Here, Colorado’s equitable

tolling rules apply.   Hardin v. Straub , 490 U.S. 536, 539 (1989);    Fratus v.

DeLand , 49 F.3d 673, 675 (10th Cir. 1995) (applying state tolling rules in § 1983

cases); see also Delgado-Brunet v. Clark , 93 F.3d 339, 342 (7th Cir. 1996) (same,

in Bivens case). Colorado law allows equitable tolling where a defendant

“engage[d] in fraudulent concealment of facts pertinent to the existence of a

claim.” Garrett v. Arrowhead Improvement Ass’n           , 826 P.2d 850, 853 n.7 (Colo.

1992). This was the sole basis for tolling asserted by Garrett before the district

court. The district court concluded, however, that Garrett did not meet his burden




       Because we hold Rule 15(c)(3)(B) was not satisfied, we need not address
       6

the parties’ arguments concerning Rule 15(c)(3)(A).

                                             -9-
of “furnishing satisfactory proof,”   id. at 855, that any of the defendants

deliberately concealed information from him. Based on the record before us, this

conclusion was not an abuse of discretion.



                                      CONCLUSION

       For the foregoing reasons, the district court’s dismissal of this case is

AFFIRMED.




                                           -10-
