Reset A A Font size: Print

Court of Appeals of Kentucky.


NO. 2012–CA–001381–MR

Decided: May 24, 2013

BEFORE:  COMBS, MOORE, AND TAYLOR, JUDGES. BRIEF FOR APPELLANT:  Juan Sanders, pro se Marion Adjustment Center St. Mary, Kentucky BRIEF FOR APPELLEE:  G. Edward Henry II Lexington, Kentucky



Juan Sanders appeals from the order of the Floyd Circuit Court dismissing his civil action against Corrections Corporation of America (CCA).   After our review, we affirm.

Sanders is an inmate at the Otter Creek Correctional Complex in Wheelwright, Kentucky.   On March 15, 2012, Sanders filed a “John Doe” complaint against two persons whose names were unknown to him.   See Kentucky Rule[s] of Civil Procedure (CR) 4.15.   Sanders alleged that two employees of Otter Creek had recklessly and negligently created a hazardous condition by removing a section of sidewalk regularly used by the inmates of Otter Creek.   Sanders also alleged that there was no sign posted as a warning of the alteration to the sidewalk (creating a potential for injury);  nor had a barricade been erected to prevent inmates from stumbling on the uneven walkway.   Sanders complained that he had suffered serious injury on the morning of March 25, 2011, when he stepped into the depression left at the site of the sidewalk excavation.

Summonses were duly issued.   Pursuant to the provisions of CR 4.01, the summonses and copies of the complaint were sent by certified mail to John Doe 1 and John Doe 2 at the Otter Creek Correctional Complex in Wheelwright.   Neither the return receipts nor the returned envelopes were filed in the record, However, Sanders asserts in his reply brief that the mail was returned to the clerk's office as “undelivered.”

On May 4, 2012, Sanders filed a pleading designated by him as a notice of amended complaint.   He sought to amend his original complaint to include as defendants Corrections Corporation of America and Franklin Matthews, an Otter Creek administrator.   Sanders's amended complaint was filed on June 1, 2012 –more than one year after the injury and, thus, outside the one year prescribed by the statute of limitations.   Sanders alleged that CCA had entered into a contract with the Kentucky Department of Corrections in order to provide for the safety and care of state prisoners who were housed at Otter Creek.   Therefore, Sanders contended that CCA was responsible for his injuries.

CCA was duly served with process on June 6, 2012.   In its answer, CCA asserted that the personal injury action was barred by the one-year statute of limitations.   On July 9, 2012, pursuant to the provisions of CR 12.02, CCA filed a motion to dismiss for failure to state a claim upon which relief could be granted

In his response to the motion to dismiss, Sanders contended that his personal injury claim against CCA arose out of the same occurrence set forth in the original pleading and that CCA was aware (or should have been aware) that it was likely to be a party to his legal action because of the grievance that he had filed with the institution following his injury.   Based upon this reasoning, Sanders argued that his amendment to the original complaint should be deemed to relate back to the date of the initial pleading, which was filed before the limitations period had expired.   On July 25, 2012, the Floyd Circuit Court disagreed with Sanders and granted the motion to dismiss.   This appeal followed.

Determining whether an action can be properly dismissed under this rule of civil procedure involves a matter of law.   Thus, our review is de novo.   Gosney v. Glenn, 163 S.W.3d 894, 898 (Ky.App.2005).

CR 15.03, pertaining to the relation back of amendments, provides in pertinent part as follows:

(1) Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.

(2) An amendment changing the party against whom a claim is asserted relates back if the condition of paragraph (1) is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (a) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense of the merits, and (b) knew or should have known that, but for a mistake concerning the identity of the proper party, the action should have been brought against him.

When a new party is to be added following the expiration of the limitations period, all of the requirements of CR 15.03 must be met.  Phelps v. Wehr Constructors, Inc., 168 S.W.3d 395 (Ky.App.2004).

Sanders concedes that the amendment to include CCA as a defendant was filed outside the limitations period.   However, it is apparent that the claim set forth in the amended complaint arose from the same conduct or occurrence set forth in the original pleading, thereby satisfying section (1) of the rule.   Consequently, the focus on appeal is upon the requirement of parts (2)(a) and (2)(b) of the civil rule.

With respect to the requirement of part (2)(a), Sanders argues that the amended complaint should relate back to the original complaint since CCA knew before the limitations period had expired that legal action against it was likely.   He argues that CCA was aware that litigation was imminent because the corporation knew through his filed grievances that the negligence of its employees had caused his personal injury.

With respect to the requirement of part (2)(b), Sanders contends that the presentation of certified mail directed at two John Does at Otter Creek alerted—or should have alerted CCA—that it would have been sued if Sanders had been aware of the name of the proper party.   We disagree with each of these contentions.

Sanders contends that because of his grievances, CCA knew that it would be sued.   We disagree.   A defendant's actual knowledge of the institution of an action against it that was brought within the limitations period is critical to the analysis.   The allegation by Sanders that CCA “should have realized” that litigation was likely under the circumstances is insufficient to constitute the necessary notice of the commencement of a legal action.

There is no evidence indicating that CCA knew or should have known that, but for a mistake concerning the identity of the proper party, Sanders's action would have been brought against the corporation.   There is no indication that anyone (including the John Doe defendants) received notice of the legal action before it was time-barred.   Under these circumstances, we cannot assume that notice of any sort could be imputed to CCA. Nor can we surmise whether Sanders was mistaken about the identity of the proper party.

Therefore, as a matter of law, the trial court properly determined that Sanders's amended complaint did not relate back to the filing of his original complaint since two of the requisite elements of CR 15.02 were not satisfied.

We affirm the order of dismissal by the Floyd Circuit Court.