Steven Hill v. William Shelander

net, gross, profits, fers are not revenues— sales, gains. the former are not for Industries, Inc., v. Lizza

United States 492, (2d Cir.1985), came out recovery of way and allowed the

the other

gross proceeds, the court made no ef- but reading square its with the lan-

fort Furthermore,

guage of the statute. proceeds says that it is the received

statute defendants, enterprise, not their

that are forfeitable. jury properly

But the was instructed on issues, $42,000

these reasonable the total amount that the three

estimate of kept from the bribes that Mas-

defendants The fact that Masters did

ters received. keep the whole amount is irrelevant the defen-

given jointness of each of fully liability. Each is liable for the

dants’

receipts the other of the enter- members $42,- subject ceiling of

prise, to the overall

000. Part, Part,

Affirmed in VaCated

Remanded. HILL, Plaintiff-Appellant,

Steven SHELANDER,

William

Defendant-Appellee.

No. 90-1363. Appeals,

United States Court

Seventh Circuit. Sept.

Argued 1990.

Decided Feb. 1991. Rehearing En

Rehearing and Banc March

Denied Straub, Peoria, Ill., plain- F.

Marcia tiff-appellant. Mueller, III, Cassidy, Cassidy E. &

John Peoria, Umholtz, Ill. and Stewart J. Office County, Pe- ‍​​‌‌‌‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​​​‌‌​‌‌​​‌‌‌​‌‌​​​‌​‌‌​‍Atty., of the State’s Tazewell kin, Ill., defendant-appellee. COFFEY, $250,000 damages. He filed his punitive and CUMMINGS Before GORDON, complaint pro purposes first se. For of Judges, and Senior Circuit liability, Hill’s determining first Judge.* District § not name Shelander in did either CUMMINGS, Judge. Circuit capacity. Hill his individual or official la- counsel, court-appointed ter received who Hill, plaintiff in this Section Steven complaints filed first and second amended action, injuries in- damages seeks for naming capacity. in his official Shelander Sergeant upon by him William She- flicted later, court-appointed Sometime Hill’s coun- lander, appeals Hill from a jail guard. withdrew, resulting assignment sel summary judgment defendant’s grant of lawyer of another to Hill’s case. Hill’s 14, 1983, Hill was December favor. On lawyer recognized the technical er- second County in Illi- imprisoned in Tazewell Jail plaintiff’s ror second amended com- awaiting following a con- nois his sentence plaint and tried to amend it to reflect the got burglary. Shelander into an viction for proper capacity in which was to Shelander Hill, opposed argument with who the relo- be sued. prisoner,. another demanded of and cation Hill re- emerge Hill from his cell. 25, 1989, September On the district court According to Hill’s come out. fused to granted plaintiff’s oral motion to sue defen- in his on this construed favor allegations, than in dant his individual rather his summary judgment by grant of a of accordingly review on Octo- court, following occurred. the district filed an ber 10 amendment his placed into the cell and Shelander reached second amended to that effect. shoulder; removed his on Hill’s Hill Afterwards dеfendant filed a motion for hand responded Sergeant’s summary judgment, claiming hand. Shelander that the stat- grabbing again by underlying ute of on the tort rebuff Hill to Hill’s run, shirt, preventing Hill from forcibly this time action had thus his shoulder and amending claim to name the defendant Thinking his pulling Hill from cellblock. Hill, in his individual might his hold on Shelan- that he lose and then yanked Hill his hair der motion, response In his to Shelander’s of Hill’s head into the metal bars slammed time-barred, his claim was Hill denied that from his own. the cell across scope the claim fell within the of the Federal Rules of Civil injury to the back of his Hill-sustained 15(c)of pertinent part, Rule Procedure. head, indig- inflicted and Shelander further pro- Procedure the Federal Rules Civil hit Hill prisoner. upon nities Shelander vides follows: times, bruising his and caus- two more face party changing An injury Hill’s head. For ing additional a claim relates blow, whom is asserted Hill Shelander kicked final * ** brought in if back beating, was es- After the Hill testicles. * * * (2) knew or by amendment should As a result solitary confinement. corted that, con- but for a mistake have known Hill corporal punishment, of Shelander’s identity proper party, cerning suffered from sеvere headaches has have been the action would incident. past well the time continued party. against the Sergeant claimed his lawsuit granted defendant’s district Eighth violated Amendment summary judgment. In an oral motion for right free of “cruel to remain constitutional opinion Judge Mihm stated: filed suit punishment” and unusual change here I find under 42 Since against Shelander U.S.C. §§ capacity is $250,- to individual prayed and 1988. Hill relief is, effect, the same another compensatory 000 in as— * Gordon, designation. sitting by Myron Dis- L. Senior Honorable Wisconsin, Judge District of Eastern trict cause of action for provides a sentence Section 1983 consequently the last

party and rights “under deprivation I cannot charac- of constitutional applies and since mistake, prerequisite it then cannot As a this as a state law.” terize color of (P. opinion suit, however, 12 of oral a civil relate back. such Section 12, 1990). January whether suit is specify must rights in offi- his brought against the defendant was con- agree that the suit parties capacity or his cial five-year statute of Illinois trolled As insignificant distinction. not an This is аctions. Ill.Rev. for civil tort limitations Court, Supreme by the characterized However, 110, (1989) ch. 13-205.1 J Stat. impose seek to “[pjersonal-capacity suits poses of limitations Hill asserts the statute government a offi- liability upon claim, personal his amendment to his no bar under color of he back to cial for actions takes as to relates * * * suits, Official-capacity complaint, pursuant filing of the law. state Proce- 15(c) contrast, represent only Federal Rules of Civil another ‘generally of the and, following agree for the entity We against dure. an way pleading an of action ” reasons, determination of reverse the agent.’ Ken- an of which an officer is proceed- further and remand for trial court 159, Graham, U.S. 105 S.Ct. tucky v. 473 ings. 3099, (1985). in an 114 Whereas 87 L.Ed.2d alleges capacity suit official Discussion party to the execu- that the defendant 1983 I. The Action § policy implementation of tion or because the real government conduct in this impression This is a case of first entity, an individual party in interest is meaning of explore the We must Court. on the constitutional capаcity suit focuses 15(c) of the provisions complex two —-Rule To establish an individual torts of official. 42 of Civil Procedure Federal Rules action, liability in a 1983 personal Section squarely be- question 1983. U.S.C. § official, enough “it to show is plaintiffs fore this Court is whether law, caused acting under color state complaint against his to amend decision Graham, right.” deprivation of a federal capaci- an official Sergeant 166, How- 105 at 3105. 473 U.S. at S.Ct. capacity suit consti- ty suit to an individual ever, showing enough is not for an meaning party within the tutes a suit, action al- where the claim is not barred so that the must be linked with leged statute of limita- under color expiration of the by the Graham, policy or custom. entity’s tions. 3105; 166, at see also 105 S.Ct. 473 U.S. question requires us Resolving this 808, Tuttle, 471 U.S. 105 City v. Oklahoma underlying purpose meaning and probe the (1985); 2427, 791 Monell 85 L.Ed.2d S.Ct. provision of Rule the relation-back both Servs., 436 U.S. Department Social of defendants and the identification 2037, 658, 694, 2018, L.Ed.2d 56 98 S.Ct. As rights suit under Section a civil (1978). 611 re- provide provisions are tailored both litigants, this legal course for claims individual and The distinction between Hill’s action determine whether Court must both suit determines shield of both protective falls under award. and nature of source provisions. Graham, wrote Supreme As the Court govern- against a that a suit “it is clear of civil underlying claim Plaintiff’s personal capacity or her ment official for the unconstitution deprivation rights liability imposition of fee lead to cannot him in excessive force al use of victory in entity. A governmental upon the right to Amendment Eighth violation victory is a personal-capacity action punishment. cruel unusual be free of 463, (1989), applicable Illinois a discussion of Chicago, City F.2d 864 1. See Bieneman v. denied, Cir.1988), (7th Section 1983 actions. 490 certiorari statute of 469-470 2099, 104 L.Ed.2d 109 S.Ct. U.S. defendant, “Sgt. hardly rather Shelander” the individual employs him.” entity surprising dispositive. nor is it It is unlike- than 167-168, Graham, 105 S.Ct. at ly including position that in Shelander’s City Henry v. Farmer State 3105-3107; caption, contemplated nuances Cir.1986). Bank, F.2d liability. unlikely It is also § precluded from typically Thus Hill and Shelander were on a first-name damages in an official recovering punitive basis, thought so that Hill would have im absent a waiver of such capacity suit caption “William Shelаnder” or state law. Kolar v. munity by federal when he filed his suit. County Sangamon, Kolar, As it was clear from the (7th Cir.1985). damages may be Punitive complaint in that case that the defendant suit capacity in an individual recovered capacity only in being was sued his official standard,” the traditional bad faith “under complaint in part explic because the refers Kolar, (citing Hutto v. F.2d at 567 full, itly title of the to the official defen 700, 2565, 678, Finney, 437 U.S. 98 S.Ct. “Defendant, points dant at as various Sher 2578, (1978)), are recov 57 L.Ed.2d 522 and Id. at 568. But Sangamon County.” iff of act against governmental erable official persuaded that was not all that us to treat capacity where ing in his individual complaint in that case as official in law and acts under color of state officer capacity eminently It was also suit. clear clarify the We had occasion to bad faith. Kolar that in “the conduct described in the punitive under availability complaint solely relates to the Sheriffs au com Kolar in because the initial § thority duty appoint promote and specify failed to whether plaint in that suit Id. Such employees.” allegations clearly in official or sued the defendant Kolar establish that it is the defendant’s actions the con capacity. We reviewed individual capacity in his official that form the basis that complaint and tents of the concluded deprivation is for the constitutional which defendant an offi was suit alleged complaint. recognition This that suit, County was capacity and that the cial indispensable to our conclusion that attorney’s fees liable for therefore complaint alleges the con “where a that Id. at 568. costs. public duct acting under color official attempts turn our decision The dissent gives liability of state law rise under us, accusing its author in Kolar 1983, ordinarily Section we will assume Court) (who writes here for the also capaci sued in his official that he has been inconsistency. The dissent jurisprudential Id. ty capacity.” (empha that siphons from Kolar following rule— point that an supplied). sis The designate that that 1983 action fails to a § presumed any capacity suit is to be or individual in his official defendant explicate complaint fails tо time that presumed to be shall be clearly capacity in which the defendant support for him his official As contrary, Kolar On the is to be sued. points to the fact position, the dissent proposition that an stands for the “Sgt. pro se names Hill’s presumed will when the capacity suit be this rea- as the defendant. Shelander” For policy an official or custom are indicia of suit, then, son, the dissent believes Holly also v. See complaint. present clarification, con- be further must without 668, Naperville, F.Supp. City of an official suit. strued as (N.D.Ill.1983) (assuming that defendants interpretation dissent’s capacities in their official where were sued chokehold of re- places alleged conduct the unconstitutional strictive, pleading require- overly technical law, City prac “pursuant to official taken original complaint pro Hill filed his ments. customs”). tices, policies and that, typed a standard form se. onto It reading a com- approach to This sensible caption, no other aside from the contains may maintained re- plaint so suits For position. of Shelander’s indicia errors pleading finds gardless in his of technical have referred con- unconstitutional requested, the relief Akins in this Circuit support further Colleges and Shelander’s alleged involves State duct Governors Board Cir.1988), (7th Univs., vacat to an official alludes actions and nowhere 102 L.Ed.2d 109 S.Ct. ed, him shield that would policy or custom Cir.1988) remand, 867 F.2d 972 on culpability. from individual name as to reinstated (original decision Court, Akins, without and Akins plaintiff). reasoning of Kolar decision dissent, a district court’s reversed that in corollary namely, suggests thus — injunctive prayer for plaintiffs’ tor complaint alleges the a suit where the not be sustained could relief acting under an individual tious conduct of in their indi the officials complaint named law, an individual state color of may relief injunctive capacity, and vidual failed lies, if the even plainly suit act public officials only be recovered defendant’s spell out the Upon re capacities. ing in their official looked this Court complaint. Just plaintiffs’ view, reinstated this Court the con nature of at the Kolar and Akins Recognizing injunctive relief. claim for here. must do sаme alleged, duct it explicit stated pleadings plaintiffs’ depart from Kolar does not This case offi state they sued the “defendant ly that logically upon the Akins, but builds instead capacities and not individual in their cials reasoning therein. set forth at capacities,” id. their official say: on to went Court 15(c) carefully Application of Rule II. reviewed the record have

We the dis- differ with respectfully and must on De- question occurred The incident in plaintiffs to whether court as trict five-year 14, 1983, stat- so that cember injunctive re- their claim for abandoned under a tort action ute of limitations in their offi-' against the defendants lief 14, 1988. on December expired Illinois law plaintiffs’ capacities. When [re- cial recourse for 15(c) provides the sole Rule quite it is entirety, in its sponse] read claim She- bring 1983 Hill to his § press such a they continued to clear that capacity. Hill at- in his individual lander injunctive relief. claim change complaint to tempted to amend then supplied). Court Id. capacity suit nine to an individual the suit pleadings instances in quoted several ran. statute of limitаtions after the months to plaintiffs’ desire expressed the the date relates back to Hill’s Unless claim capacity with their official press forward the mean- complaint within original of the suit. time-barred. 15(c), it is ing of Rule ’ complaint when Similarly, Hill’s protect a 15(c) designed to Rule an entirety” plainly shows in its “read mistakenly party a plaintiff who names As intended. capacity suit was individual identity proper party’s then discovers may a state injunctive relief run. has of limitations after the statute only in an official be recovered to 1966 plaint changing the capacity in which She- clearly der had notice the suit. of He did However, lander was sued. the defendant have notice since he was named the moved summary judgment against the plaintiff original complaint. Obvi- plaintiff, claiming that statute the of limita ously person when the same is in named change tions barred a original the complaints, and amended no- judge agreed, district reasoning that Rule period tice within the limitations is not a 15(c) inapplicable was because the amend problem, so that the rule of Schiavone change ment effected a in party that did Schiavone, apply. does not In “linch- the satisfy requirements not the of the Rule. notice,” id. pin is S.Ct. plaintiff’s He found that decision to name poses whereas this case notice no bar to Shelander in his official was inten Hill’s suit. The dissent’s division of the mistaken, tional and not such that relation post-Schiavone pre- world into is there- permitted. back was not Plaintiff’s new inappropriate, fore Schiavone is a case counsel, hand, on the other realized that 15(c). about notice in the context of Rule naming his official not, The decision is as the dissent seems to attempted rectify was a mistake and it. think, narrowing an across-the-board of 15(c) considering Rule that would dictate the In outcome whether an amendment to Schiavone complaint this case. Even with still on relates back to the date of the books, Supreme the reading original ‍​​‌‌‌‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​​​‌‌​‌‌​​‌‌‌​‌‌​​​‌​‌‌​‍filing, recognizes the Court’s of this Court 15(c), along underlying spirit Rule with purpose numerous lower of the rela- Proposed change effectively Recognizing Rules would the decisiоn is “inconsistent Schiavone, the result in a decision that has been pleading practices with the liberal secured See, target frequent e.g., of criticism. Jo- 8,” proposed change permit Rule Bauer, seph P. Schiavone: An Un-Fortune-ate amendment of a to correct a formal Supreme Illustration Court’s Role as Inter- identifying party long defect in so as notice Procedure, preter the Federal Rules Civil place period takes within the allowed for service (1988); Notre Dame L.Rev. 720 Robert D. Brus- Rules, Proposed aof summons. 110 S.Ct. at Outrageous Fortune: The Case For Amend- sack. 311-312. 15(c) (1988). ing Again, Rule 61 S.Cal.L.Rev. 671 Second, original pleading. forth in the Circuit has As this doctrine. tion-back limita- applicable statute is well settled within the previously, stated “[i]t de- purported are substitute period Rules of Civil Procedure tions the Federal to effectuate notice liberally construed received such be have fendant must cases are seeing that general purpose of he of the action that institution * * * end, To this the merits. maintaining tried on prejudiced will not be 15(c)should pursuant tо Rule Third, pur- amendments the merits. defense on v. American freely allowed.” Staren must have or defendant ported substitute Co., 529 F.2d 1257 Trust Bank & Nat’l that, a mis- but for known should have omitted). Cir.1976) (citation (7th prop- identity of the concerning the take been would have party, er the action Worachek, (7th v.Wood brought against him. Cir.1980), application of we discussed 15(c) as follows: Rule sup Wood, F.2d at 1229 his com- may usually plaintiff amend A specifically did not plied). Although Wood change the plaint under rights plaintiff by a civil attempt involve an recovery is under which theory or statute offi rights civil to amend a to correct a misnomer sought; or specifical we did cial to party plaintiff proper plaintiff where as consti ly identify a capacity in court; change the or to is in where the amended tuting type one of case sues; substi- or to which the back to the date of complaint related the real as or add tute complaint. Id. 4 Defendant did plaintiffs interest; or to add additional case in relevance of this even discuss action, brought, originally where upon by although it relied was his brief Oliefаbrik, class action. Aarhus awas plaintiffs counsel. F.R.D. Corp., 22 v. A.O. Smith A/S scope of definition This Court’s (and there- eases cited (E.D.Wis.1958) the Fifth Circuit’s with coincides Thus, relation in). amendment with cases. The issue in two treatment in order to permitted generally back is Cronvich, first, 629 F.2d 404 Kirk v. a misnomer correct defendant Cir.1980), for the particularly instructive already proper where plaintiff to amend permitted a 1983 § merely and the the court effect before the defendant capacity which he is the name under which to correct wrongful death involved a Kirk sued. cannot nor- But a new defendant sued. Parish Sheriff’s against the Jefferson claim by amend- mally substituted added prompt provide to for its failure Office has of limitations after the statute ment service, causing the proximately ambulance run. Id. Kirk, 629 husband. plaintiff’s death 15(c) the re- expressly conditions Rule plain- complaint initial In her F.2d at 405. changing amendment back of an lation County Sheriff’s the Jefferson tiff named a is assert- party against whom claim the court, trial According to the Office. prerequi- of three upon ed the existence defendant, causing plain- improper anwas First, claim must the amended sites. the complaint to name her tiff to amend set of the same occurrence out arise ac sought change capacity which the the in to language restrict a Wood does not in 4. The sued, brought, is changing capacity in which he or in which defendant the tion is plaintiff to preju- any point change parties case is avoid the in to before sues. The there no allowing by surprise party court, to the other dice and out of parties of the facts are on notice all 15(c). See also under Rule the amendment and relation back the claim arose which on the Federal Wright Miller’s treatise and plaintiff the the and the case of allowed in both by "An Rules of Civil Procedure: Brown, defendant’’); Co. v. Travelers Ins. change capacity in plaintiff to seeks which Cir.1964). (5th Hampton v. also See F.2d 229 change being not sued does which defendant (N.D.Ill. Hanrahan, F.Supp. 143-145 will relate parties court and before the Here, pro 1981). plaintiff’s se Hampton, unlike Miller, Wright Practice and Federal back.” and mistakenly defen name the complaint did not 514; Procedure, Moore’s Section 1498 wrong capacity. dant in the ("Where plaintiff ¶ 15.15[4.-1] Practice Federal individually in Sheriff his date original complaint of the if the named parties Sheriff. Id. The Fifth prejudiced Circuit will not be held in maintain- back, ing a representatives the amendment defense as class related and that the be- delay cause of the between change original capacity provided adequate no- pleadings.” amended 624 F.2d Kerney, Moreover, tice Sheriff. Id. at 407. since the Sheriff had notice of suit filed, when it was he adequate opportu- had analysis same used the Fifth Cir- nity counsel, to consult so that he was not cuit in Kerney applies Kirk and here. All prejudiced by plaintiffs original com- three of the prerequisites 15(c) Rule plaint, First, which did not have been name the Sheriff in satisfied. Hill’s claim against Shelander his individual arose out of capacity. Id. merely occurrence and changed defen- guides First, Kirk ways. us several dant’s identity of the defen- —the plaintiff the decision affirms that may a dant remained the same. It be a amend the chаnge legal bizarre result were this Court to hold that capacity in which defendant is sued under plaintiff could amend under 15(c). only applies The Rule not when he identified the wrong cases in which entirely party different is defendant, but could not amend his com- named; governs it also cases where the plaint right when defendant is named in right party wrongly named in an incor- the wrong capacity. Glickstein Sun addition, rect Bank/Miami, N.A., recognized Kirk that the defendant Sheriff Cir.1991). very purpose underlying re- was on notice of throughout the suit lation permit back is to amendments to litigation entire adequate oppor- and had an pleadings period when the limitations has tunity lawyer concerning to consult his expired, long as the opposing so party is Therefore, claims him. he suffered unduly surprised or prejudiced. A prejudice no as a result of the court’s deci- change greatly reduces the risk sion to allow the in Kirk amend party that a notice, will be without complaint. Kirk, her allegations Like itself already has been identified in this case throughout correctly remained the same and has received notice. Rule the course of is a litigation. pleading liberal designed rule prevent parties nipping from legitimate knew at all times that the suit him grievances in the bud asserting formal alleged was for the injuries constitutional objections. To hold that capac- personally he plaintiff. inflicted on the ity prevents having Moreover, Shelander had actual notice. day in court would carve out a restrictive Regardless in which he was exception 15(c), to Rule inconsistent with sued, Shelander, Kirk, like the purposes. its broad To suggest, as does would “have steps taken to investigate the dissent, that a identity mistake claim, including collecting preserving should apply wrong when the party is evidence any foreseeable eventuali- myopic named is to take a entirely view ty.” Id. at 408. spirit inconsistent with the of the Rule. The Fifth Circuit also allowed a plaintiff Although the dissent itself the fancies negligence in a action to amend his com- guardian Rule, of the it is advocating a plaint to name the defendants as a as class grudging approach 15(c), to Rule one which well individuаlly change in legal ca- effectively usurp —a would it. pacity. v. Fort Kerney Fandangle Griffin Second, Shelander knew from the start Ass’n, 717, (5th Cir.1980). 624 F.2d allegations the nature of the against him recognizing While that such an amendment and therefore would not be prejudiced precisely did not fall within the terms defending the merits. Lujan, Watkins v. 15(c), Rule the court held that “an amend- 261, (5th Cir.1991). The na- ment merely changes that status ture of claim change through- Hill’s did not individual representa- defendants to class litigation; out the both the factual circum- tives without changing the liabili- ultimate legal gravamen stances and of his com- ty sought imposed plaint Indeed, to the relates back remained the same. Hill at error, pleading the dis- plaintiff’s as an official technical time framed his claim no so, do he would have had the defense law- capacity To is not concerned suit. sent policy or custom identify an official minute self-serving last motion yer’s out county and carried adopted by escape in an effort to summary judgment in the of his Sergeant Shelander execution pleading er- a technical liability becаuse Department duties. See Monell official ror. 55, Servs., n. Social amendment relates up, Hill’s To sum n. 56 L.Ed.2d 611 S.Ct. She- filing of the suit because back to the (1978). and already the court lander before was alleged the of an Hill never existence merely to was the effect the amendment any stage of the policy or custom official he was sued. capacity in which correct the first litigation. Even if Hill’s defendant, surprise to no Since there was capacity in his named Shelander require- plaintiff satisfied and because all, it would rather than no 15(c), wholly fair and it is ments 15(c) to entirely consistent with Rule the Rule to spirit consistent with In both his permit relation back. permit back. relation Hill claimed com- complaints. and amended damages punitive pensatory and no has discovered case Defendant $250,000 each for Shelander’s amount of has been held which Hill. It use excessive force 15(c). back under bar relation quite clear to defendant have been should against She- original pro se was was plaintiff’s that lawsuit from the start allege it did not individually because lander injuriеs he personally him for the that he sued his official sought puni- Hill and that Hill on inflicted clearly alleged indi- because it Shelander’s de- he that tive believed of Hill’s constitutional vidual violation using exces- responsibility bore fendant legitimately It cannot be claimed rights. Hill even com- Because never sive force. second amended amendment custom, policy She- plained of an official or surprise. Rather She- complaint came as same defense remained lander’s put on notice when lawsuit lander was litigation. He knew throughout adequate opportuni- originated, and he had basis of actions formed the his individual prepare his defense. ty to suit, any defense he Judgment for defendant reversed to refute the necessarily have mount would for trial. cause There- remanded allegations against plaintiff’s him. complaint did to his fore Hill’s amendment asserting prejudice the defendant COFFEY, dissenting. Judge, Circuit the extent plaintiff's claims. To defense plain- attempts to bail out a majority raise a defense could viable carelessly filed lawyer who tiff and his attempt failed even to had in his pleadings suing the defendant ca- prerequisites of satisfy the capac- in his individual than rather suit, waited until after pacity majority, plowing appeal, the ity. Now on action had on the of limitations statute legal theory without field of an unfurrowed for his making this the expired before basis law, support in case reverses scintilla of summary judgment. motion for court’s conclusion that the district suit was We reiterate that whether the pleadings from of an one ca- against him in his official to one of an individual capacity suit knew Sergeant always pacity, to date cannot relate back the capacity suit against being brought that the lawsuit was complaint, initial since filing recognized him. The district court years than two af- came more advantage, She-

presumably strategic for expired. ter statute deliberately lawyer decided lander’s ample to correct attorney had time Hill’s shortly capacity question until raise the expiration of prior to the pleading error his (see opinion at trial district before Hill of limitations. filed 14-16). the statute with Apparently preoccupied original complaint pro inse December 1984 name complaint job official’s properly title.... designate and failed to the defen-

dant’s capacity. Thereafter, ^[******] complaints with counsel filed two amended “In order to avoid further confusion on specifically designating Shelander as a de- future, this issue in the where a com- plaint capacity alleges fendant in his official in August public conduct of a official acting under color of state law August finally 1986 and 1987 and moved to gives liability rise to under Section complaint amend his to name Shelander in we will ordinarily assume that he has capacity an individual in September 1989. been sued in his capacity and The majority’s allowing Hill’s third amend- only in that capacity ... If a complaint ed gives to relate back Hill a intends to sue public officials in their apple. fourth bite at the capacities individual inor both their offi- cial majority capacities, somehow and holds that even he should expressly state so in the complaint.” though “plaintiff pro se sued Shelander designating Kolar, without official or individual added) 756 F.2d at 568-69 (footnote omitted). capacity, it citations allegations was clear from the It is evi- dent that the Court declined rely on concerning physical injuries inflicted on reading complaint “in entirety” its byHill Shelander that Hill intended to sue its holding. opinion demonstrates a him Majority Opinion as an individual.” distinct intention to establish a clear meth- majority’s position 1375. ‍​​‌‌‌‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​​​‌‌​‌‌​​‌‌‌​‌‌​​​‌​‌‌​‍The is erroneous od determining whether a complaint is as a judge, matter of law. The district brought against a defendant in his official him, magistrate before both held that or Hence, individual capacity. I find it complaint Hill’s against initial Shelan- surprising that majority argue der in his official under Kolar v. that “Kolar stands proposition for the County Sangamon, 756 F.2d 564 an official capacity suit will presumed Cir.1985).1 The Kolar Court noted that when the indicia policy or complaint designate while the failed to present custom are complaint.” capacity in which the defendant was sued Majority Opinion (emphasis added). at 1373 and the case name failed to mention the case, In the instant Hill ini- title, job body defendant’s of the сom- complaint against tial Shelander under the plaint referred the defendant’s title and name Hill Sgt. Steven Shelander. alleged conduct that solely Thus, “relates complaint against Hill's initial She- lander is authority duty appoint Sheriff’s deemed a suit defen- Kolar, dant in his official capacity under promote employees.” Id. at 568. Under since the case name lists job Shelander’s majority’s theory complaint that “Hill’s designate title and fails to entirety’ when ‘read in its plainly shows being against him in capacity. his individual that an individual suit was intend- neglected properly to file a amended ed,” Majority Opinion at the content complaint against the defendant Shelander of Kolar’s would have been ade- his individual years until six quate to make the suit one injury. after the may While this Court Sheriff in his official None- Hill, sympathize negligence with such fails theless, say the Court went on to justify rewriting the law to enable a “this Court ... characterized as attorney careless and his client to undo six [has] years negligent pleading. capacity’ ‘official suits those Section 1983 designate actions that fail to exprеssly majority’s Kolar likewise undermines the through the nature of the suit utilization request punitive conclusion that of the terms capacity’ ‘official or ‘individ- damages makes the suit one She- capacity,’ ual but which list the case lander his individual majority opinion 1. I note that the author of the and the author of Kolar are the same individual. 1380 added), stating (emphasis F.2d at 1377 [may] be recovered damages “punitive the “suing they were that pleading indi- in a only in an actor government a against in their state officials Majority Opinion defendant suit.” capacity

vidual capaci- official in their was whether capacities and not question Kolar The 1374. damages the that since the found liable for The Court County was ties.” Id. the punitive their claims Kolar, press included which to continued plaintiffs to awarded County argued relief, that court erred the district damages. injunctive The for implied that damages the claim. punitive they abandoned holding of that award Sher- against the have been a whether complaint must the issue Significantly, “an offi- since his individual to raise iff in fails a claim has abandoned a defen- brought versus to a capacity suit notice cial here of at stake crucial issue puni- support would whose conduct personally. dant being he is sued defendant to failure.” is doomed award tive support for allow- no provides Thus Akins response was that Court’s half nearly and one two ing an amendment (footnote Kolar, failure pressly an official capacity suit. until was of limitations Akins, tiff). majority quotes, suit sumed lar ’s injunctive in their (opinion ties, Governors of consistent would award “[ajssuming, understand cial against against the truth brought versus plaintiffs through reliance against him on more than clear capacity be majority See to be remand 867 as is clear designates reinstated County’s F.2d not mean apropos inadequate him in was without [the omitted). A similar complaint that holding that a Majority relief punitive with against the State had abandoned 109 S.Ct. Thus, arguendo, nor two Sheriff] attempts to overcome unless in his individual such a the issue an official here. defendant’s capacities,” argument, run. action action as to Colleges and Universi (7th years after the an individual F.2d damages is 569 Oрinion at on Akins Board to transform as a Sheriff notice Cir.1988), The fact was not capacity.” into an individual the named suit will plaintiffs was to be the correctness their matter of County capacity i.e., that the (cid:127)proposition in his portion Akins, defendants doomed wholly in- claim “whether Cir.1988) this suit brought vacated L.Ed.2d holding it from statute did not added) in his plain fact suit, suit law, offi- pre Ko- ex relate back years after the distinction capacity lawsuit from complaint. of an official 3105, and official Quoting the observes: Majority omitted). Graham, 473 U.S. The amendment personal pleading state law. ceives ‘[pjersonal-capacity cial for which “As characterized erally spond, Thus, Official-capacity respects ty suit “As can be explain Graham: one a suit ^[*] real long as against proceeding, an notice represent L.Ed.2d an while Opinion at actions As the liability other party in an against Supreme officer capacity ^[*] the statute official-capacity suit executed capacity one action the official between Shelander, the individual. an аward than 114 he takes against the Supreme time 159, 165, 105 S.Ct. ^[*] upon a aof suits, is an only another by the government interest an in his suits in Court's suits seek against suit to 1372-1373 (1985), name, effect, entity. pleading from opportunity personal ^[*] agent.” government offi- filing personal Supreme personally, contrast, under Court upon the offi- explication of is the an individual Kentucky v. an converts government ^[*] It is not the initial entity re- ’ ” entity of (citations is, majority capacity went color of way of impose treated capaci- entity. Court, to re- 3099, “gen- one all on assets, personal plaintiff seeking ment, cial’s (1) party that has received such on a judgment recover in an notice the institution the action official-capacity suit must look to the party will prejudiced not be government entity itself.” maintaining merits, a defense on the merits, personal (2) “On to establish knew that, or should have known but action, liability in a enough it is § for a concerning mistake the identity of official, acting show that the under color proper party, the action have law, deprivation caused the state of a brought been party.” right. required federal More is in an (Emphasis added). Hill has failed and is action, however, for a unable to satisfy requirements for the governmental entity is under liable amended complaint back,” to “relate for only entity when the itself is a § “ amendment does not correct a mistake in ” ' ‘moving deprivation; force’ behind the identity. Since Shelander was ef- without thus, in official-capacity ‍​​‌‌‌‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​​​‌‌​‌‌​​‌‌‌​‌‌​​​‌​‌‌​‍an suit the enti- fective notice that the complaint was ty’s ‘policy or custom’ played must have against him in his he part in the violation of federal law. would be prejudiced as a result When it comes to liability, defenses to amendment. majority As the recognizes: in a personal-capacity may, action “Hill attempted to amend his complaint to depending position, on his able as- change the suit to an individual capacity personal immunity defenses, sert such as suit nine months after the statute of limita- objectively reasonable on exist- reliance tions ran. Unless Hill’s claim back relates ing action, In an official capacity law. to the date the original complaint within these defenses are unavailable. The meaning 15(c), of Rule it is time- immunities that can be claimed in an Majority barred.” Opinion at 1374-1375.2 official-capacity action are forms sov- Fortune, 21, 29, Schiavone v. ereign immunity that the entity, qua en- 2379, 2384, 106 S.Ct. (1986), 91 L.Ed.2d 18 tity, may possess, such as the Eleventh Supreme Court plain- determined that a Amendment.” tiff failed requirements to meet the Graham, 166-67, 473 U.S. at 105 S.Ct. at 15(c), amendment under Rule in the follow- (citations omitted) 3105-06 and footnotes ing language: original). “Relation back dependent upon four proper Under a analysis, Hill’s factors, all of which must be satisfied: amendment of his bring suit (1) the claim basic must have out arisen against Shelander in his individual of the conduct set forth in does not relate filing back to the time pleading; (2) party to be brought original complaint. provides must have received such notice that it pertinent part: will prejudiced not be in maintaining its “Whenever the claim or defense asserted defense; (3) party must or should in the pleading amended arose out of the that, have known but for a mistake con- conduct, transaction, or set occurrenсe cerning identity, the action would have attempted forth or to be set forth it; brought against (4) been the sec- original pleading, the relates ond and requirements third must have back the date original pleading. been prescribed fulfilled within the limi- An amendment changing party period.” tations against whom a claim is relates asserted foregoing provision Applying back if the is satis- the third prong and fourth and, fied period provided by four-prong within the test it is essential commencing law prescribed “within action period” amend- “party must substituted have should applicable peri- 2. September statute of majority's assumption limitations time 1989. The 17, 1987, expired April Lehpam- od er, see Anton v. the statute of limitations until extended (7th Cir.1986), 787 F.2d 1141 and the amend- 14, 1988, holding. December fails to aid its ed years was filed over two later on 1382 plaintiff the in which capacity “the concerning that, but a mistake known sues_” (empha- Wood, at 1229 have been F.2d would the action 618

identity, Schiavone, 477 U.S. in capacity it.” in the brought against added). Change sis added). 29, (emphasis 2384 at 106 S.Ct. a at not raise sues does which the the casts decision аside majority’s the Yet sued, party concerning the to question language ex- unambiguous clear and 15(c),and Rule clear of is the intent which 15(c) beyond its scope of Rule pands the to a relationship whatsoever no it bears cases those limitation specific of identity of the defendant. mistake con- majority does identity. The mistaken law can- Thus, of case misapplication this 15(c) Rule is very intent of the cede that the support a conclusion not problem of mistaken specific address the Schiavone, that prong of the third satisfied reading Supreme Court’s identity: “[T]he identity, concerning mistake “but a 15(c), along numerous lower with Rule have been action would the legitimate decisions, recognizes that Schiavone, party. the amended against" a squelched when may not be claims legal When at 106 S.Ct. 2384. at U.S. party a mistakenly identifies party identity, in a mistake speaks Rule 15(c).” meaning Rule the sued within intends, it clear- it exactly what that is Obviously, the at 1375. Majority Opinion in capacity the impact on ly not does obstacle unsurmountable majority has an sued. is which satisfy mistakе in attempting in any mistake identity requirement legal a new attempt establish In an concerning Shelander’s Hill made legal support, a theory without scintilla concerning the identi- was not a “mistake underlying that “the argues majority the trial court party.” As proper ty doc- purpose of the relation-back spirit and is a we have here think what noted: “I to relate permit amendments trine” should mistake, mistake, as to if there is a 15(c)’s require- Rule even when the back in in this case to the facts operation of law I identity met. is not mistake ment of a Thus, trial recovery....” terms precise- Supreme Court that the note plain- recognized properly judge argument Schiavone. ly rejected such an of law— a matter concerned tiff’s mistake “the argued that petitioners There sued Shelander— in which he applied should be of Civil Procedure Rules of Shelan- misapprehension rather than determinations, yield just and construed problem no identity. had der’s ” is, on the merits.... determinations years six this some inception of suit S.Ct. at Schiavone, at defendant; proper identifying ago in re- ultimate Supreme The Court’s 2382. years after that six problem was dispositive sponse to that contention suing the he was discovered that event he he was here: legal where in a defendant remedy recover. Hill’s unlikely to us a choice not have “We do before one, action a civil there be if juncture, approach toward ‘liberal’ between a bring attempt to attorney. His against his hand, and a 15(c), one on the in his individual a suit Rule, interpretation ‘technical’ weeks, but day, two one capacity not instead, choice, on the other hand. years after and one-half almost two ignoring recognizing or is between of limitations of the statute expiration plain lan- provides the Rule what misconceived. meaning as the Rule accept guage. We gre-Schiavone majority upon relies says.” it what Worachek, case, Wood 30, 106 at 2384 Schiavone, 477 U.S. at S.Ct. identifying] Cir.1980) (7th “specifically as added). 1976 decision Our one constituting National Bank v. American Staren the amended type where of case Cir.1976), Co., F.2d Trust related back date proposition majority сites for which Majority Opinion complaint.” to pursuant “that capacity Wood change in But the allowed,” freely should be is clearly government limited official as a Supreme Court’s warning ten years individual capacity to relate back to the later in that we “ignor[e] Schiavone cannot time of filing the complaint when the provides what the Rule plain language.” amendment names as the defendant Schiavone, 477 U.S. at 106 S.Ct. at Sheriff, who is presumably involved in the 2384. Schiavone’s treatment plain of the governmental policy issues at stake in the language 15(c) of Rule binds an interme official capacity action. We can assume diate appellate Court to the clear and un Sheriff, that a the senior commanding offi- 15(c). fettered terms of Rule Because Rule cer of the law enforcement agency, will be 15(c) provides plain in language that rela more knowledgeable concerning an ongo- permissible tion-back is only in circum ing official against action filed stances where there exists a mistake in office he directs than would a lower eche- identity, it inappliсable in this case. lon employee possesses who policy- neither majority The pre-Schiavone cites two making nor supervisory responsibilities. Fifth Circuit cases ignore the limita- As Kirk, contrasted with the majority per- 15(c) tion of Rule to cases of mistaken mits relation back of an individual capacity identity support of its position erroneous action prison guard who would that Rule can encompass an amend- normally have no reason to monitor an ment changing a defendant’s brought lawsuit does not arise from misidentification. The governmental agency. Because Kirk cases, first of these Cronvich, Kirk v. 629 involved a mistake in identity of the defen- (5th Cir.1980) F.2d 404 clearly distin- dant and concerned the head the govern- guishable. Kirk involved an original com- mental agency rather than a lower echelon plaint improperly “named the Parish employee, does support it not the majori- of Jefferson and the Jefferson Parish Sher- ty’s attempt to extend Rule to cases iff’s Office as defendants and which was that do not involve mistakes identity.3 thereafter amended to name the Sheriff The second Fifth majori Circuit case the individually “both capaci- and his official ty upon, relies Sheriff_” Kerney Ft. Fan ty Kirk, 629 F.2d at 405. Griffin dangle Association, Inc., Thus, there was a concerning mistake iden- (5th Cir.1980) 721-22 clearly also distin tification of the original defendant as the guishable. In Kerney, amend complaint erroneously was filed against the ed complaint to name defendants in the Sheriff’s Office and the amended capacity of representatives class as well as substituted the Sheriff in his individual and individually after the applicable capacities. statute of Kirk, See 629 F.2d at limitations (“The had ran. court appellee 408-09 allowed the was the Sheriff of amendment to Jefferson relate times,” Parish at back to the all relevant time of and filing complaint, “in the of the properly holding same manner in which he had notice office, action the sheriff’s “that an amendment that merely appellee knew or should have known changes the status of individual defen- that he was the who should have dants to representatives class without sued”). been changing the liability sought ultimate Even if Kirk were read to to be permit imposed an relates back date amendment changing capacity original relate if the par- named back identity, absent mistake there are ties prejudiced will in maintaining material factual distinctions between Kirk a defense representatives as class be- and the instant case. The language delay cause of between the Kirk allows an designating amendment and amended pleadings.” 3. We note also amendment in Kirk was sharp 629 F.2d at is in This contrast slightly (97 filed days) case, more than three months amendment which filed expiration after period year years a one limitations over expiration two after appli- of the arguably applica- was filed an period within cable years six after year Kirk, ble two statute of limitations. See event. relating to She- added). forgotten crucial facts have F.2d at Kerney, 624 individual now in an defendant new defense “no named lander’s noted that pursue evidence having of the class their find defense should individu- have moved may defense as their who from from witnesses different Kerney, require signifi- sharp country contrast Id. across the als.” liability of ultimate as well as legal did not affect expenses which cant additional com- defendants, of the delays in the resolution significant liability ultimate “the here alters complaint was plaint Since lawsuit. award of imposed” because sought to be against Shelander capacity action in an and never very beginning, from rather the named comes Shelan- September of until changed entity. governmental than he needed to notice that without der was Thus, he would Kerney preparations. these distinctions between make The that not were this clearly prejudice demonstrate additional case suffer instant to establish relate back unable is Hill allowed amended involved a mistake prejudice amended filing of the lawsuit. first to the prong identity under third concerning aggravated in is above further delineated rela- four-prong test for the Schiavone defendant a is a claim that when 15(c), Hill neither can under Rule back capacity, tion the defen- his individual made in prong of Schiavone satisfy the secоnd exposed to assets become personal dant’s have in must party to be “the inescapable is The conclusion judgment. it will not be notice that such received ample time to had more than that Hill maintaining its defense.” prejudiced ac- designate this complaint to amend Schiavone, S.Ct. U.S. individual suit as an properly tion prejudice suffers Shelander limitations, and there statute within the of different in a number amendment this prejudice Shelander for the no excuse requires suit An official manners. majority’s a result of as now suffers capac- acted defendant proof re- untimely amendment holding that gov- a pursuant to ity policymaker aof lates back. capaci- an individual policy while ernmental suing amendment of the back Relation preju- The defendant is not. ty suit does capacity after in his individual the alteration a result of diced run cannot be limitations has the statute establish plaintiff to for the requirements failed to estab- has permitted because himself forced he finds recovery, for of She- designation his erroneous lish that proof. elements different dispute concern- was a “mistake lander’s being prejudiced- in is further defendant imag- any of the identity” under stretch ing defenses, as rely different required upon back ination, permitting relation only a to raise permitted plain and unam- disregards completely in an defense immunity qualified 15(c) and be- language of Rule biguous may raise sover- he whereas capacity suit prejudice Shelan- back would cause relation capaci- in an official immunity eign defense a de- brought against suit der. Once proof and divergent Completely ty suit. he is enti- in his official fendant each of required under legal arguments are has that he no rely the fact on tled in a an amendment Because defenses. Allowing Hill's liability at stake. personal in a lawsuit under defendant’s late at this date to relate back amendment recov- the elements 1983 alters U.S.C. § Shelander, it subverts only unfair to is not the manner described ery and defense of statutes of principle the fundamental changes above, major require it will Thus, upon the interests based limitation. preparation discovery, trial рleading, play parties all fair justice and testi- witnesses to and location selection ruling affirm litigation, I would Moreover, late date at this fy at trial. plaintiff’s and hold that fact, trial court witness- after years than six more ca- defendant’s changing the time, may very well es, lapse due pacity personal from official to does not

relate back to the filing time of under Rule

15(c). America,

UNITED STATES of

Plaintiff-Appellee, TOWNSEND, Diaz,

Mason Luis E. Orlan- Nunez, Dorothy Taylor,

do Carlos Me-

jia, Joseph Angel Claudio, and Isabel

Marquez, Defendants-Appellants. 88-3271, 88-3315, 88-3339, 88-3371,

Nos.

88-3398, 88-3418 and 89-1037.

United States Appeals, Court of

Seventh Circuit.

Argued Sept. 1990.

Decided Feb. Notes Advisory Committee See damages be recovered suit, punitive may so 15(c), Fed.R.Civ.P. Rule Amendment of in an indi government actor against a Rule 15.2 15(c), at 28 U.S.C.A. reprinted to the suit. In addition vidual currently pro- 15(c), defense." tain 2. Under proposed to amendments 15(c) specifically permits 1, 1991, upon posed revision of on December effect due to take "changes the amendment back when Congress, counsel .relation approval of defendant's party,” id. at 310. party or the name for claim- basis not even colorable have language comprehends a situa- Plainly, new relate ing capacity does not complaint the cor- original sues where the Feder- tion Proposed Amendments back. Sеe technically Procedure, party him but identifies rect S.Ct. at 309-312 al Rules of Civil party, case. The This is our Rules). According name. (hereinafter incorrect Proposed to Shelander, properly identi- Note, has been William has been Advisory rule "[t]he Committee However, incorrectly named he has been fied. claims parties whom prevent revised in his official advantage pleadings in the amended taking unjust oth- are made from individual rather than pleading to sus- inconsequential errors erwise purpose decisions, with the of the Rules recognizes legitimate Consistent Procedure, Supreme of Civil Court has legal may squelched claims not be when a * * * recognized that Rule “should party mistakenly identifies a guide[] help, serve as useful not meaning 15(c). sued within the [a] of Rule hinder, ‍​​‌‌‌‌​‌​‌​‌‌​‌‌‌​​‌​‌‌‌​​​‌‌​‌‌​​‌‌‌​‌‌​​​‌​‌‌​‍persons legal right who have a this case the bring problems their before the courts.” pro se named Shelander as the defen filed Fortune, 21, 27, Schiavone dant without elaboration. While 2379, 2383, (1986) (cita- 91 L.Ed.2d S.Ct. pro se sued Shelander designating without omitted). Although tion the Court official or it was clear Schiavone read to bar a claim where allegations from the concerning physi proper defendant did not receive notice injuries cal inflicted on Hill period, of the suit within the limitations that Hill intended to sue him as an individu 15(c), gives decision recog- broad effect to However, al. first amended nizing “worthy goals” its and that “the and the second complaint, amended while spirit and inclination of the rules favored acknowledging personal Shelander’s in rejected decisions on the merits and incident, volvement in the named him offi approach pleading game is a of skill cially individually. rather than Hill’s first misstep may which one be decisive.” court-appointed counsel named Shelander Schiavone, U.S. S.Ct. in his official capacity without alleging a obviously 2383. Because Shelander had no- theory sufficient support capaci tice of the peri- suit within the limitations ty liability. Hill’s court-appointed second od, outcome of Schiavone does specific recognized counsel to be a wholly control here.3 The dissent fails mistake and therefore filed the amendment recognize important point, this for there predecessor’s to her second amended com dispute is no case whether Shelan-

Case Details

Case Name: Steven Hill v. William Shelander

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 26, 1991

Citation: 924 F.2d 1370

Docket Number: 90-1363

Court Abbreviation: 7th Cir.