Opinion
NO. 3-02-CV-1536-M
January 30, 2003
MEMORANDUM ORDER
Plaintiff Terrence L. Swanson has filed a motion for leave to amend his complaint in this pro se prisoner civil rights case. For the reasons stated herein, the motion is granted in part and denied in part.
I.
Plaintiff alleges that his home was illegally searched by Dallas Police Officers Audrea Perez and William Everrett on August 2, 2000. According to plaintiff, the officers conducted this search without consent, a warrant, or probable cause. No property was seized, but a glass door in the china cabinet and several picture frames were broken and a telephone line was severed. Plaintiff was arrested and charged with aggravated kidnaping, aggravated assault, and retaliation. He was subsequently acquitted of all charges.
It appears that plaintiff is currently charges.
On July 19, 2002, plaintiff filed suit in federal district court seeking monetary compensation for damages resulting from the illegal search of his home. He now seeks leave to amend his pro se complaint to: (1) correct the spelling of "Audrea Perez" to "Andrea Perez" and "William Everrett" to "William Everett;" (2) join "Unknown Dallas Police Tactical Officers" and the City of Dallas as defendants; and (3) add a claim of unlawful arrest.
II.
Rule 15(a) of the Federal Rules of Civil Procedure provides that a party may amend a pleading with leave of court, "and leave shall be freely given when justice so requires." FED. R. Civ. P. 15(a). The court should consider: (1) undue delay, bad faith or dilatory motive on the part of the movant; (2) undue prejudice to the opposing party; and (3) futility of the amendment. Wimm v. Jack Eckerd Corp., 3 F.3d 137, 139 (5th Cir. 1993), citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962).
A.
Defendants do not oppose plaintiffs request to correct the spelling of "Audrea Perez" to "Andrea Perez" and "William Everrett" to "William Everett." Accordingly, this aspect of the motion is granted.
B.
Plaintiff also seeks leave to join "Unknown Dallas Police Tactical Officers" who searched his home. However, neither the Federal Rules of Civil Procedure nor 42 U.S.C. § 1983 provides authority for the joinder of fictitious defendants. See Vollmer v. Bowles, 1997 WL 102476 at *2 (N.D. Tex. Feb. 28, 1997), citing Sigurdson v. Del Guercio, 241 F.2d 480, 482 (9th Cir. 1956). As the Ninth Circuit stated in Sigurdson:
These John Doe complaints are dangerous at any time. It is inviting disaster to allow them to be filed and to allow fictitious persons to remain defendants if the complaint is still of record. . . Although the fact that the Rules of Civil Procedure, 28 U.S.C.A., contain no express prohibition upon the subject, there is no authority of which we are aware for the joining of fictitious defendants in an action under a federal statute.
Sigurdson, 241 F.2d at 482. See also Williams v. Kaufman County Jail, 2002 WL 31360393 at *3 (N.D. Tex. Oct. 5, 2002); Lindley v. Bowles, 2002 WL 1315466 at *2 (N.D. Tex. Jun. 12, 2002). Consequently, leave to join these unnamed police officers is denied.
Nor has plaintiff stated a claim against the City of Dallas. In order to establish municipal liability under 42 U.S.C. § 1983, plaintiff must allege facts which, if proved, show that the illegal search conducted by the police resulted from an official policy, custom, or practice. See Monell v. Department of Social Services of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978). No such allegation is made by plaintiff. Instead, he wants to join the City as a defendant because "[the] officers who are alleged to have violated plaintiff's constitutional rights were working for the City of Dallas on Aug. 2, 2000 at approximately 11:30 a.m. when these violations occurred . . ." (Plf. Mot. at 2). The mere fact that defendants were employed by the City does not give rise to municipal liability under section 1983. See Jett v. Dallas Independent School District, 491 U.S. 701, 736, 109 S.Ct. 2702, 2723, 105 L.Ed.2d 598 (1989).
Plaintiff also points out that the City is listed in Defendants' Certificate of Interested Persons as having a financial interest in the outcome of the case. Of course, this does not mean that the City is a proper party to the suit.
C.
Finally, plaintiff wants to add a claim against defendants for unlawful arrest. However, no facts are alleged to support such a claim. Although plaintiff is not required to plead facts supporting each and every element of his claim or legal theory, he must give the defendants "fair notice of what [his] claim is and the grounds upon which it rests." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 922, 998, 152 L.Ed.2d 1 (2002), quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957); see also FED. R. Civ. P. 8(a). In the absence of such notice, leave to add a claim for unlawful arrest is denied.
CONCLUSION
Plaintiffs motion for leave to amend is granted in part and denied in part. The motion is granted to enable plaintiff to correct the spelling of "Audrea Perez" to "Andrea Perez" and "William Everrett" to "William Everett." In all other respects, the motion is denied.
SO ORDERED.