Civil Rights Plaintiffs and Joe Doe Defendants: A Study in Section 1983 Procedure

Abstract

In this article, Professor Wasserman addresses the problems encountered by Section 1983 plaintiffs who do not know the identities of the officers who violated their constitutional rights, file a Complaint naming Officers John Doe 1-3 as defendants, learn the officers' names in discovery after the statute of limitations has expired, and are time-barred from filing an Amended Complaint properly identifying those officers. Courts do not permit the amended pleading to "relate back" to the original time of filing, because the plaintiffs' lack of knowledge of the officers' names is not a "mistake concerning the identity of the proper party" for purposes of Fed. R. Civ. P. 15(c)(3). This interpretation and application of the rules is improperly restrictive, having a uniquely disparate impact on the substantive interests of civil rights plaintiffs and the substantive purposes of Section 1983. This is due largely to the Byzantine Section 1983 liability scheme, under which the officers, rather than the government, are the primary (and often sole) proper and liable defendants.

Concluding that procedure should not unduly hamper the vindication of substantive rights in this manner, Professor Wasserman considers four changes that might resolve the dilemma. The first is to simply require the plaintiff to commence the action earlier, with more time to use to discovery to learn the defendants' names and amend the pleading before the limitations period has expired. The second is to alter substantive Section 1983 and Bivens law to establish governmental respondeat superior liability. This obviates the need to identify and sue the individual officers, because the government entity is the primary responsible defendant. The third solution is a reinterpretation or amendment of Rule 15(c)(3), permitting relation back where there has been a mistake or lack of knowledge or ignorance concerning the identity of the proper party. The final, and most important suggestion, is the creation of a limited pre-filing discovery procedure modeled on Fed. R. Civ. P. 27, through which a Section 1983 plaintiff could, prior to commencing the lawsuit by filing a Complaint, formally depose a government entity in order to learn the names of the officers whose conduct violated her rights, which officers then could be sued by name in a timely filed Complaint.

Keywords: § 1983, Relation back, Procedure, Civil Rights