Paul Hodge v. David Parker

After examining the briefs and the record, we have concluded that oral argument*
is unnecessary. Thus, the appeal is submitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2).
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 22, 2009*
Decided July 22, 2009
Before
JOHN L. COFFEY, Circuit Judge
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
No. 08-3161
PAUL HODGE,
Plaintiff-Appellant,
v.
DAVID PARKER,
Defendant-Appellee.
Appeal from the United States District
Court for the Southern District of Indiana.
No. 1:05-cv-1776-DFH-TAB
David F. Hamilton,
Chief Judge.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 08-3161 Page 2
O R D E R
Paul Hodge, a federal prisoner, was attacked by a fellow inmate on November 26,
2003. Nearly two years later, on November 23, 2005, Hodge brought an action under Bivens
v. Six Unknown Named Agents, 403 U.S. 388 (1971), claiming that David Parker, a prison
official, violated his Eighth Amendment rights by failing to protect him from the attack.
In January 2008 Hodge sought to add additional defendants to the suit under
Federal Rule of Civil Procedure 19. The district court granted the motion and allowed
Hodge to amend his complaint to set forth any claims he might have against all intended
defendants. After filing his amended complaint, Hodge filed two additional motions to
join defendants under Rule 19; the court denied both motions as futile and premature.
The court then screened Hodge’s amended complaint under 28 U.S.C. § 1915A and
dismissed it for failure to state a claim because the suit was time-barred. The court
explained that a Bivens claim brought in the state of Indiana is subject to the state’s two-
year statute of limitations, see, e.g., Myles v. United States, 416 F.3d 551, 552 (7th Cir. 2005);
King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000), and that Hodges’s
claims against the newly-added defendants had not been timely asserted. The court
further found that the claim against the newly-added defendants did not “relate back”
under Federal Rule of Civil Procedure 15(c) to the filing of the original complaint because
they were not “chargeable with knowledge” of Hodge’s failure to name the proper party.
Shortly thereafter the court granted summary judgment to Parker.
On appeal Hodge argues that the delay should be excused because Parker and other
prison authorities prevented him from identifying the putative new defendants. But he
provides no evidence for his claim that the prison withheld files from him or otherwise
refused to comply with any request for information. See Delgado-Brunet v. Clark, 93 F.3d
339, 343 (7th Cir. 1996). Under these circumstances, Hodges cannot show that the district
court abused its discretion in finding that he did not exercise the due diligence required to
establish equitable tolling. See Myles, 416 F.3d at 552; Delgado-Brunet, 93 F.3d at 343.
This leaves only the possibility, rejected by the district court, that Hodge’s amended
complaint related back to the filing date of the original complaint. See FED. R. CIV. P. 15(c).
But Hodge did not mistakenly sue the wrong party. See, e.g., King, 201 F.3d at 914. Nor did
he allege that the putative new parties were on notice of the original suit, as required by
Rule 15(c). As we have held, Rule 15(c) does not apply where the defendant fails to
identify the proper party. See O’Brien v. Ind. Dep’t of Corr. ex rel. Turner, 495 F.3d 505, 507-
08 (7th Cir. 2007); Myles, 416 F.3d at 552-53; Delgado-Brunet, 93 F.3d at 343-44. Relatedly,

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No. 08-3161 Page 3
Hodge’s attempt to circumvent the statute of limitations by invoking the joinder provisions
of Federal Rule of Civil Procedure 19 also fails. See Andrews v. Lakeshore Rehab. Hosp., 140
F.3d 1405, 1408 (11th Cir. 1998).
AFFIRMED.

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