311 F.Supp.2d 227 (2004) | Cited 1 time | D. Massachusetts | March 31, 2004

Memorandum Of Decision And Order For Judgment

I. Nature of the Proceedings

By voluntary consent of the parties, this case was referred to me forall further proceedings and entry of final judgment in accordance with28 U.S.C. § 636(c) and Fed.R.Civ.P. 73. This Order addresses: 1. Defendants'1 Motion for Summary Judgment (Docket No. 20); and

2. Plaintiff's Motion for Leave to File Third Amended Complaint (DocketNo. 24).Page 2

II. Nature of the Case

Plaintiff, Dennis Broner ("Plaintiff" or "Mr. Broner"), brought thiscivil rights action under 42 U.S.C. § 1983 against John M. Flynn, theSheriff of Worcester County ("Sheriff Flynn"), and unnamed employees ofthe Worcester County Jail and House of Corrections ("WCJHC")(collectively, "Defendants"), for violation of his Eighth and FourteenthAmendment Rights as the result of injuries he sustained during an assaulton another inmate.2

The Defendants' Motion For Summary Judgment Standard Of Review

Summary judgment is appropriate when the record indicates that "thereis no genuine issue of material fact, and that the moving party isentitled to judgment as a matter of law." Fed.R.Civ.P. 56. In thiscontext, "material" means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant, and, "genuine" means thatthe evidence about the fact is such that a reasonable jury could resolvethe point for the nonmoving party. Suarez v. Pueblo Int'l,Inc., 229 F.3d 49, 53 (1st Cir. 2000). Furthermore, summary judgmentis properly entered against a party who fails to make a showingsufficient to establish the existencePage 3of an element essential to the party's case, and on which the partywill bear the burden of proof at trial. Celetex Corp. v.Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548 (1986); Connell v.Bank of Boston, 924 F.2d 1169, 1172 (1st Cir. 1991). Finally, whenconsidering a motion for summary judgment, courts "view the entire recordin the light most favorable to the party opposing summary judgment,indulging all reasonable inferences in that party's favor."Suarez, 229 F.3d at 53.


1. On February 22, 1999, Mr. Broner and Tyrone Gardner ("Mr. Gardner")were inmates housed in adjacent cells (Nos. 218 and 219), on the secondfloor of the "I-Block" at the Worcester County Jail and House ofCorrection ("WCJHC").

2. On February 22, 1999, at approximately 10:35 a.m., WCJHC employeeMarybeth Camosse ("Ms. Camosse") submitted a "Disciplinary/InvestigationReport", which indicated that she had "received information from anunnamed source that inmate Tyrone Gardner was `going to be jumped by theETA gang [4] sometime today.'". Ms. Camosse's report further statedthat she hadPage 4reported this information to Lieutenant Robert Caracciolo ("Lt.Caracciolo") and Captain Michael Greaney ("Capt. Greaney").

3. Shortly after lunch that day, Capt. Greaney, in the presence of Lt.Caracciolo and Ms. Camosse, informed Mr. Gardner of the informationcontained in Ms.Camosse's report, and offered to place Mr. Gardner inprotective custody. Mr. Gardner, stating that he had no enemies, refusedthe offer. Capt. Greaney, believed that Mr. Gardner, who was a "bigindividual" and "pretty tough guy", "would [not] have any problems,"taking care of himself if a fight occurred. Therefore, Capt. Greaneyallowed Mr. Gardner to return to the his cell block in general populationof I-Block.

4. On February 22, 1999, while Mr. Broner was performing his duties asan assistant librarian at the WCJHC library, he was informed by Mr.Gardner that Capt. Greaney had offered to place him in protectivecustody, but he had refused. Mr. Broner knew of a conflict between Mr.Gardner and NETA members regarding Mr. Gardner's refusal to comply withNETA's rules of shower etiquette (Mr. Gardner refused to wear a towelover his boxer shorts when exiting the shower). Specifically, one or twodays prior to the incident, Mr. Broner had overheard inmates who weremembers of NETA threatening to get Mr. Gardner. At this point in time,Mr. Broner had not had any personal encounters with any NETA members.

5. Mr. Broner did not report the threats against Mr. Gardner to prisonofficials, because he believed that guards working on his cell block hadoverheard the threats made against Mr. Gardner.Page 5

6. On the afternoon of February 22, 1999, at approximately 2:30 p.m.,Mr. Broner returned to his cell (No. 218) on I-Block for the dailylock-down and head count. Mr. Gardner returned to his cell (No. 219) atabout the same time.

7. After a guard shift-change was completed, at approximately 3:00p.m., the doors to all of the cells on I-Block were opened. Shortlythereafter, Mr. Broner, who had remained in his cell to write a letter,heard a scuffling noise. The noise, which sounded like a foot lockerbeing thrown around, was coming from Mr. Gardner's cell.

8. Mr. Broner then observed Correctional Officer Darrien Brousseau("Officer Brousseau"), who was on the first floor of cell Block-I whenthe disturbance began, come up the stairs, in an apparent attempt toinvestigate the noise coming from Mr. Gardner's cell. As OfficerBrousseau approached Mr. Gardner's cell (he had passed Mr. Broner'scell), Mr. Broner stepped outside of his cell to observe the nature ofthe disturbance. Mr. Broner remained directly outside of his own cell.

9. As Officer Brousseau approached, four to five inmates exited Mr.Gardner's cell, all of whom were known members of NETA. Mr. Bronerobserved Mr. Gardner in the doorway of his cell facing Officer Brousseau.Officer Brousseau remained outside Mr. Gardner's cell and repeatedlyasked him what had happened. Mr. Broner observed that Mr. Gardner hadbloodstains on his shirt and appeared to be in pain.Page 6

10. Mr. Broner observed Officer Brousseau radio for assistance.Pl's Mem. In Opp. Of Defs' Mot. For Sum. J. (Docket No. 21)("Pl's Opp."), Ex. 3 (Affidavit of Dennis Broner) ("BronerAff."), at ¶ 15. Immediately thereafter, Mr. Gardner exited hiscell and began to head down the stairs leading to the first floor ofI-Block.

11. Officer Brousseau followed Mr. Gardner towards the stairs. As soonas Mr. Gardner began descending the stairs, approximately ten NETAmembers rushed across the top tier of I-Block toward the top of thestairs, where Mr. Broner was standing, apparently in pursuit of Mr.Gardner.

12. Mr. Broner was then pushed down the flight of stairs by the rush ofNETA gang members. Mr. Broner observed that Officer Brousseau and Mr.Gardner had not yet reached the first floor when their pursuers begancoming down the stairs. When Mr. Gardner did reach the first floor, heproceeded to one of the cells in the lower section of I-Block to confrontone of the men who had assaulted him in his cell.

13. Officer Brousseau followed Mr. Gardner into the lower level cell.Mr. Broner then saw approximately fifteen NETA members assault Mr.Gardner and Officer Brousseau, who was attempting to protect Mr. Gardnerby shielding him with his body.

14. In the ensuing melee, one of the inmates struck Officer Brousseauon the back with a heavy metal-based chair. The same inmate then madethreatening gestures with the chair towards Mr. Broner, who was nowstanding near the bottom of the staircase, andPage 7Officer Brousseau, who was heading toward the staircase. As theinmate wielding the chair approached, Mr. Broner seized the base of thechair and forced the inmate to throw it to the ground. Another inmatethen picked up and threw the chair out of the reach of the fightinginmates.

15. By this time, Mr. Gardner had locked himself inside one of thecells on the lower level.

16. As corrections officers responding to the melee were proceedingdown the staircase to the lower level of I-Block, they observed awidespread altercation with inmates assaulting each other with a varietyof weapons, including cribbage boards, socks filled with hard objects,homemade shanks and knives. Lieutenant Bruce Darcy ("Lt. Darcy"), orderedall responding officers to return to the control booth. All officersimmediately went up the stairs into the control booth and secured it.

17. Mr. Brousseau ran up the stairs into the control booth. Lt. Darcyheld the door to the booth open for him.

18. At no point during this episode did any corrections officers enterI-Block to assist either Mr. Broner or Officer Brousseau. Mr. Bronerheard corrections officers at the main entrance to I-Block banging on thedoor to enter the cellblock (the "sallyport"). In fact, as many as fivecorrections officers were waiting for the sallyport doors to be opened.However, because the fight had spread to the sallyport area, SergeantFuller ("Sgt. Fuller") determined not to open the sallyport doors forfear thatPage 8the officers would be ambushed. The sallyport doors were not openeduntil the fight concluded several minutes later, after the inmates hadre-entered their cells in response to an order which came over theintercom.5

19. Mr. Broner was assaulted by twenty-five to thirty-five inmates. Hewas punched, kicked, and beaten with various objects, including a can ofshaving cream, a cribbage board, a broken table leg, and a sock filledwith batteries. He also was stabbed by homemade knives.

20. Sgt. Fuller, Lt. Darcy, Officer Matthew Fiore ("Officer Fiore"),Officer Ruben Guadalupe ("Officer Guadalupe"), Officer Justin LaMonda("Officer Lamonda"), Officer Keith Taparausky ("Officer Taparausky"), andOfficer Stephen Viner ("Officer Viner") remained in the control booththrough this time period, watching the assault of Mr. Broner.

21. When the corrections officers did enter the lower cell level, Mr.Broner was immediately attended to by an institutionalPage 9nurse and brought to St. Vincent's Hospital for treatment of hiswounds. He returned to WCJHC from St. Vincent's Hospital at 8:50 p.m. onthe evening of February 22, 1999, and was placed on medical watch.

22. The corrections officers who were on duty on the I-Block on the3:00 p.m. to 11:00 p.m. shift on the day of the incident had not beenmade aware of the fact that a threat had been made against Mr. Gardner bya well established gang. One of the corrections officers originallyscheduled to work the I-Block during that shift was transferred to coverthe J-Block.


Mr. Broner has alleged Section 1983 claims against Sheriff Flynn, assupervisor of the WCJHC, in both his individual and official capacity.Initially, I will address Mr. Broner's claims against Sheriff Flynn inhis official capacity. I will then address whether summary judgment iswarranted on Mr. Broner's claims against Sheriff Flynn in his individualcapacity.

Claims Against Sheriff Flynn In His Official Capacity

Effective July 1, 1998, the government of Worcester County wasabolished. Effective September 1, 1998, the Sheriff of Worcester County,who was then and continues to be, John M. Flynn, became an officer andemployee of the Commonwealth of Massachusetts and all of the "functions,duties and responsibilities for the operation and management of" theWCJHC were transferred to the Commonwealth. Mass. Gen. Laws ch. 34(B),§§ 1, 12 (2004). Therefore, a SectionPage 101983 suit against Sheriff Flynn in his official capacity is deemedto be a suit against the Commonwealth. Since a state is not a "person"for purposes of Section 1983, all claims against Sheriff Flynn in hisofficial capacity are barred. Forte v. Sullivan, 935 F.2d 1, 2n. 2 (1st Cir. 1991)(state is not person for Section 1983 purposes andclaim against state official in his/her official capacity is suit againststate, which is barred). Therefore, summary judgment shall enter forSheriff Flynn with respect to Mr. Broner's Section 1983 claims againsthim in his official capacity.

At the hearing on this motion, counsel for Mr. Broner suggested thatthe Commonwealth may have waived its sovereign immunity defense byraising it for the first time in its motion for summary judgment. Idisagree. First, by operation of law, Sheriff Flynn became an employee ofthe Commonwealth and the WCJHC fell under the auspices of the state overtwo and half years before this suit was filed. In the Answer to theoriginal and Second Amended Complaints, Sheriff Flynn indicated that heis an employee of the Commonwealth and thus, entitled to "qualifiedimmunity" with respect to claims against him in his official capacity.The suggestion, made at the hearing, that counsel for Mr. Broner learnedfor the first time in Sheriff Flynn's motion for summary judgment that heis a state employee and that the WCJHC is an arm of the state isdisingenuous. The inadvertent reference to "qualified" as opposed to"sovereign" immunity in Sheriff Flynn's pleadings did not result in anyunfair surprise or prejudice to Mr. Broner. Second, even if I were tofind that thePage 11Commonwealth had waived its sovereign immunity defense, there isnot a scintilla of evidence in the record that any custom, policy orpractice which can be attributed to the Commonwealth (through SheriffFlynn or any other policy maker) led to a deprivation of Mr. Broner'sconstitutional rights. See Wood v. Hancock County Sheriff'sDep't, 354 F.3d 57, 64 (1st Cir. 2003)(governmental entity may notbe held liable under Section 1983 for employee's constitutionalviolations unless plaintiff's injury results from policy, custom orpractice so widespread and well settled, that policy making officials canbe said to have actual or constructive knowledge of practice). For thisadditional reason, summary judgment is warranted with respect to Mr.Broner's claims against Sheriff Flynn in his official capacity.

Claims Against Sheriff Flynn In His IndividualCapacity6

"The Eighth Amendment to the Constitution protects convicted inmatesfrom the imposition of `cruel and unusual punishments.' An inmate may suea correctional facility under the Eighth Amendment for failure to affordadequate protection to inmates from attack byPage 12other inmates." Calderon-Ortiz v. Laboy-Alvarado,300 F.3d 60, 63-64 (1st Cir. 2002). Thus, prison officials have a duty to"take reasonable measures to guarantee inmates' safety from attacks byother inmates". Id., at 64.

In order to establish an Eighth Amendment claim against prisonofficials for injuries sustained in an attack by another inmate, aprisoner must show: (1) "that the deprivation alleged is objectively,sufficiently serious'"; and (2) the prison official knew of a substantialrisk of serious harm to the prisoner, and disregarded such risk.Id. (citing Farmer v. Brennan, 511 U.S. 825,114 S.Ct. 1970 (1994)). While the second prong is a subjective test, it isnot necessary for the prisoner to show that the prison official knew"that a specific harm would befall the inmate". Rather, it is sufficientfor the plaintiff to establish that there existed "knowledge of factsfrom which the official can draw the inference that a substantial risk ofserious harm exists. The question of whether a prison official had therequired knowledge of a substantial risk is a question of fact subject todemonstration in the usual ways, including inference from circumstantialevidence, and a factfinder may conclude that a prison official knew of asubstantial risk from the very fact that the risk was obvious'". Id., at65 (citation to quoted case and internal citations omitted).

When a plaintiff asserts claims against an individual in hissupervisory capacity, liability cannot be established on a basis ofPage 13respondeat superior. Rather, "[a] supervisor may be foundliable only on the basis of his own acts or omissions. Moreover, asupervisor cannot be liable for merely negligent acts. Rather, asupervisor's acts or omissions must amount to a reckless or callousindifference to the constitutional rights of others".Febus-Rodriquez v. Betancourt-Lebron, 14 F.3d 87, 91-92(1st Cir. 1994)(internal citations omitted).

Mr. Broner has not alleged any facts which would support afinding that any acts or omissions by Sheriff Flynn amounted to areckless or callous indifference to his constitutional rights. On thecontrary, Mr. Broner appears to be arguing that on the day in question,various corrections officers took actions which were against WCJHCpolicy, or that violated past practices whereby WCJHC officers tookreasonable steps to protect inmates during large scale altercations. Mr.Broner has failed to affirmatively link any such alleged conduct by WCJHCcorrections officers to any act, omission or policy of Sheriff Flynn.Under these circumstances, Sheriff Flynn's motion for summary judgment isallowed as to Mr. Broner's Section 1983 claims against Sheriff Flynn inhis individual capacity.

Motion for Leave to File a Third Amended Complaint7Page 14

On January 13, 2003, Plaintiff filed his motion for leave to file athird amended complaint naming Correctional Officers Fiore, Guadalupe,LaMonda, Taparausky, Viner, and Lt. Darcy, Sgt. Fuller, and Capt.Greaney, as Defendants in place of "John Doe and others, et al." Mr.Broner faces at least two major hurdles in seeking to amend his complaintat this late stage in the proceedings. First, Mr. Broner filed thismotion well after discovery had been completed and after the only namedDefendant in this action, Sheriff Flynn, had filed a motion for summaryjudgment. While in general leave to amend is freely given, where "`leaveto amend is not sought until after discovery has closed and a summaryjudgment motion has been docketed, the proposed amendment must be notonly theoretically viable but also solidly grounded in the record [and]. . . supported by substantial evidence'". Watson v. DeaconessWaltham Hosp., 298 F.3d 102, 109 (1st Cir. 2002) (citation toquoted case omitted). Second, the three year statute of limitationsapplicable to Mr. Broner's claims against these John Doe Defendantsexpired nearly eleventh months before he filed his motion toamend.8 Therefore, Mr. Broner must establish that the relationback provisions ofPage 15Fed.R.Civ.P. 15(c) apply in this case and if so, that he hassatisfied the requirements of Rule 15(c).

Facts Relevant To Mr. Broner's Motion To Amend

1. On February 21, 2001, Mr. Broner filed his original complaint namingas Defendants: "John M. Flynn, Sheriff of Worcester County, and John Doe,and others, et al". Complaint (Docket No. 1).

2. On July 25, 2001, Mr. Broner's original counsel withdrew and wassucceeded by Mr. Broner's present counsel. See Notice ofWithdrawal (Docket No. 4) and Notice of Appearance (Docket No. 5).

3. On September 25, 2001, this Court, Gorton, D.J., issued a SchedulingOrder (Docket No. 12), which required that all amendments and/orsupplements to pleadings be filed by February 28, 2002 and that alldiscovery (excluding expert depositions) be completed by August 31, 2002.

4. On March 6, 2002, with the assent of Sheriff Flynn, Mr. Broner fileda Second Amended Complaint (Docket No. 14) which again named asDefendants: "John M. Flynn, Sheriff of Worcester County, and John Doe,and others, et al".

5. On December 4, 2002, Mr. Broner filed an opposition to SheriffFlynn's motion for summary judgment in which, by way of a footnote, herequested that he be allowed to amend his complaint to identify thoseDefendants referred to as "John Doe, et al." in his original and SecondAmended Complaints.

6. On January 13, 2003, Mr. Broner filed his motion to file a thirdamended complaint.Page 16


Where a plaintiff seeks to amend his complaint to add new partiesagainst whom the statute of limitations has run, he must establish thatthe relation back requirements of Fed.R.Civ.P. 15(c) are met. In thiscase, Mr. Broner seeks to further amend his Complaint to name individualswhose identities were unknown to him at the time he filed his originaland Second Amended Complaints and therefore, were referred to as "JohnDoe, et al" in those pleadings. Before addressing Mr. Broner's argumentthat he has satisfied the requirements of Rule 15(c), this Court mustfirst determine whether Rule 15(c) applies under the circumstances ofthis case. There is a split of authority among the circuit courts ofappeal as to whether Rule 15(c) applies where a plaintiff seeks to amenda complaint to identify individuals against whom the plaintiff desired tofile cause of action, but whose identity was unknown at the time of thefiling of the original pleading.

In Wilson v. United States, 23 F.3d 559 (1st Cir. 1994), theFirst Circuit stated that Rule 15(c) was not intended to apply where theplaintiff "merely lacked knowledge of the proper party", rather it isintended to apply where there has been a mistake concerning the identityof the proper party. Id., at 563. Numerous circuit courts ofappeal have cited Wilson for the proposition that the FirstCircuit has held that Rule 15(c) does not apply where the plaintiffseeks to identify "John Doe" defendants after the statute of limitationshas run. In Mclntosh v. Antonino, 71 F.3d 29 (1stPage 17Cir. 1995), the First Circuit, in dicta, citingBarrow v. Wethersfield Police Dep't, 66 F.3d 466, as modifiedin 74 F.3d 1366 (2d Cir. 1995)(15(c) cannot be used to add nameddefendants to suit in place of John Doe defendants after expiration ofstatute of limitations), suggested that the plaintiff could not amend itscomplaint to substitute named defendants for John Doe defendants.

However, in Leonard v. Parry, 219 F.3d 25 (1st Cir. 2000),the First Circuit stated that: Wilson is not a case in which a plaintiff intended to sue A and sued B by reason of a mistake concerning identity. Rather it is a case in which the plaintiff chose the wrong theory of liability . . . and sued the wrong party . . . Rule 15(c)(3) was not designed to remedy a mistake in the selection of a legal theory.Id., at 31 (internal citation and footnote omitted). Given thismore recent interpretation of Wilson, it is not at all clearthat the First Circuit intended to infer in that case that the relationback provisions of Rule 15(c) do not apply where the plaintiff seeks toidentify "John Doe" defendants after the statute of limitations has run.

Although the First Circuit has not expressly addressed this issue,eight of the nine circuits that have done so have held that "as a matterof law, a plaintiff's lack of knowledge of the intended defendant'sidentity is not a `mistake concerning the identify of the proper party'within the meaning of Rule 15(c)(3) . . . A plaintiff's designation ofan unknown defendant as `John Doe' in the original complaint is not aformal defect of the type RulePage 1815(c)(3) was meant to address". Garrett v. Fleming,— F.3d 2004 WL 617675 (10th Cir. Mar. 30, 2004)(internalcitations and citation to quoted case omitted); see also casescited therein.

It is unclear whether the First Circuit, if squarely facedwith the issue, would find that Rule 15(c)'s relation back provisions donot apply where a plaintiff seeks to amend a complaint to identify "JohnDoe" defendants. However, given the overwhelming number of circuit courtsof appeal that have so held, this Court is constrained to find thatRule 15(c) does not apply in such cases. Since the relation back provisions ofRule 15(c) do not apply in this case, Mr. Broner's claims against thecorrections officers he seeks to add by way of his Third AmendedComplaint are barred by the applicable statute of limitations. Therefore,to allow such amendment would be fufile. Under these circumstances, it isnot necessary for me to address whether Mr. Broner has met theRule 15(c) requirements, or whether his amended complaint is theoreticallyviable, solidly grounded in the record and supported by substantialevidence.

For the reasons stated above, Mr. Broner's motion to filed a ThirdAmended Complaint is denied.9

ConclusionPage 19

It is ordered that:

1. Defendants' Motion for Summary Judgment (Docket No. 20) isallowed; and

2. Plaintiff's Motion for Leave to File Third Amended Complaint (DocketNo. 24) is denied.

Judgment shall enter for the Defendants.

1. Because John M. Flynn is the only named Defendant in this suit, Iwill treat this case as involving a single defendant.

2. At the hearing on this motion, this Court sua sponte raised theissue of whether Mr. Broner was required to exhaust administrativeremedies with respect to his claims in accordance with 42 U.S.C. § 1997e(a).Because Section 1997a(e) is not jurisdictional and because theDefendant never raised this issue in his Answer or motion for summaryjudgment, I find that it would not be appropriate for this Court toaddress this issue at this time. See Chelette v. Harris,229 F.3d 684 (8th Cir. 2000).

3. To the extent that the Plaintiff does not dispute any factualassertions made by the Defendant in the Statement of Material Facts,see Defs' Mot. For Sum. J. (Docket No. 20), I have adopted suchfactual assertions, essentially verbatim. To the extent that Plaintiffdoes dispute such factual assertions, I have, as required, stated suchfacts in a light most favorable to him.

4. ÑETA is gang which operates both within and outside theprison system. At the WCJHC, ETA appears to be primarily comprised ofHispanic inmates. Apparently, there had been problems at WCJHC betweenAfrican American inmates and ÑETA members. Both Mr. Gardner andMr. Broner are African Americans.

5. Mr. Broner asserts that there is a genuine issue of material factas to why Sgt. Fuller did not open the doors to the sallyport. Idisagree. In his deposition testimony (which was cited by theDefendants), Sgt. Fuller testified that he did not open the sallyportdoors because he feared that because the fight was taking place in frontof those doors, the responding officers would be ambushed. The depositiontestimony cited by Mr. Broner (pages 12 and 13 of Sgt. Fuller'sdeposition) in support of his contention that this factual assertion isin dispute is irrelevant to this issue and for that reason, cannot createa genuine issue of material fact. Mr. Broner also seeks to create agenuine issue of material fact as to this issue by pointing out that in aprior incident involving a similar scale fight among inmates, Sgt. Fullerand other corrections officers responded by going into the block to breakup the fight. What Sgt. Fuller may have done in a prior situation doesnot create a genuine issue of material fact where there is uncontradictedevidence of what Sgt. Fuller did and why he did it during the course ofthe incident underlying Mr. Broner's claims.

6. Plaintiff's opposition to the motion for summary judgmentessentially seeks to amend the complaint to name the John Doe Defendantsand "to substitute Sheriff John J. [sic] Flynn". The opposition does notcontain any meaningful argument that summary judgment should not enter infavor of Sheriff Flynn. Rather, the opposition essentially argues thatsummary judgment should not enter in favor of various correctionsofficers who, as of yet, are not even parties to this litigation.Plaintiff was advised at the hearing on the motion for summary judgmentthat he would be required to file a motion to amend if he desired tosubstitute named defendants for the "John Does". Plaintiff's proposedthird amended complaint does not name Sheriff Flynn as a defendant.Although at the hearing, counsel for Mr. Broner acknowledged that thereis little evidence to support a section 1983 claim against Sheriff Flynnin his individual capacity, he would not concede that summary judgmentshould enter in Sheriff Flynn's favor.

7. Mr. Broner's initial complaint, filed on February 2, 2001, namedSheriff Flynn and "John Doe, et al." as Defendants. A first amendedcomplaint was not filed or docketed due to an error in the pleading. Mr.Broner's initial counsel withdrew and was replaced by present counsel onJuly 30, 2001. A second amended complaint, again naming Sheriff Flynn and"John Doe, et al." as Defendants, was filed on March 6, 2002.

8. A Section 1983 claim borrows the most analogous statute oflimitations of the state whose law governs the claim. 42 U.S.C. § 1988.In Massachusetts, the statute of limitations period applicable topersonal injury tort claims, and therefore. Section 1983 claims involvingpersonal injury, is three years. See Poy v. Boutselis,352 F.3d 479, 483 (1st Cir. 2003); Mass. Gen. Laws ch. 260, § 2A. The filingof a complaint against a "John Doe" defendant does not toll the runningof the statute of limitations as to the individual ultimately identifiedas such defendant. See Garvin v. City of Philadelphia, 354 F.3d 215,220 (3rd Cir. 2003). Therefore, the statute of limitations for Mr.Broner's Section 1983 claims against the proposed additional Defendantsexpired on February 22, 2002.

9. This may seem a harsh result, particularly since it appears thatMr. Broner may not have discovered the names of the corrections officershe seeks to add as parties by way of his Third Amended Complaint untilafter the statute of limitations had expired. Nonetheless, it is theresult compelled by this Court's rules of procedure.Page 1

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