Opinion

MCCALL v. CITY OF PHILADELPHIA

Court: District Court, E.D. Pennsylvania
Filed: Apr 18, 2022
Cited by: 0 cases
Authority: More cited than 28.9%

remanding to the district court to determine whether good cause existed to extend Rule 15(c)’s notice period

How later courts described this case

remanding to the district court to determine whether good cause existed to extend Rule 15(c)’s notice period
applying the Eighth Amendment standard to a pretrial detainee’s Fourteenth Amendment inadequate medical care claim
noting that Rule 15(c)’s notice period can be extended if good cause is shown
considering whether the plaintiff “satisfied the requirements of Rule 15(c)(3) because he ha[d] ‘good cause’ for his failure to provide timely notice”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA

AMEEN McCALL :

Plaintiff, :

: CIVIL ACTION

v. : NO. 19-cv-2568

CORRECTIONS OFFICER :

JOJO THAZHATHEL :

Defendant. :

April 18, 2022 Anita B. Brody, J.

MEMORANDUM

On the evening of June 17, 2017, Plaintiff Ameen McCall was violently attacked and

struck in the right eye with a storage container by his cellmate at the Curran-Fromhold

Correctional Facility (“CFCF”). Shortly after the assault, Defendant Corrections Officer Jojo

Thazhathel visited the cell and saw that McCall was bleeding extensively from his right eye.

McCall asked for immediate medical help, but Thazhathel refused to assist him because it was a

holiday weekend, and no medical personnel were available. McCall did not receive medical

attention for his eye until June 19, 2017. Physicians diagnosed McCall with a ruptured globe and

eventually removed his right eye.

McCall brings suit against Thazhathel pursuant to 42 U.S.C. § 1983, alleging that the

delay in medical care violated McCall’s Eighth and Fourteenth Amendment rights.1 I exercise

1 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of

any State . . . subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity, or other proper proceeding for redress . . . .

Section 1983 does not create any substantive rights; rather, it provides a remedy for violations of other

federal constitutional or statutory rights. Doe v. Delie, 257 F.3d 309, 314 (2001).

subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331. Thazhathel moves for

summary judgment on the basis that McCall’s suit is barred by the statute of limitations and/or

Thazhathel is entitled to qualified immunity. I will deny Thazhathel’s motion for summary

judgment.

I. FACTUAL BACKGROUND

On the evening of June 17, 2017, after the inmates were locked in their cells for the night,

McCall was sitting on the edge of his bed when his cellmate struck him with the corner of a

storage container in his right eye. McCall Dep. 194:13-24, ECF No. 62-1. Upon being hit,

McCall heard a pop and lost vision in his right eye. Id. at 199:2-5. McCall began to bleed

profusely. Id. at 203:20-204:2. McCall’s blood went everywhere in the cell, including the bed,

the toilet, the sink, and the floor, making the cell look “like a crime scene.” Id.

Soon after the assault, McCall heard Corrections Officer Thazhathel walking toward his

cell. Id. at 196:4-197:2. When Thazhathel arrived at his cell, McCall went to the door and told

Thazhathel, “Officer, I need medical attention immediately.” Id. at 197:3-4. Thazhathel shined

a flashlight into the window of McCall’s cell door. Id. at 204:9-24. Thazhathel observed

McCall holding his hand over his eye and “blood[] going down [McCall’s] hands, down his

arms.” Id. at 205:1-7. “[T]he blood was so much. It was all over everything.” Id. at 205:1-2.

McCall then removed his hand from his face and showed Thazhathel that his eye was bleeding.

Id. at 197:6-7. Thazhathel told McCall that he could not get medical attention because it was

Father’s Day and there were no nurses working the shift.

McCall “remember[s] thinking I’m going to bleed to death out of my eye.” Id. at 198:23-

24. He “felt like [he] was under the influence,” and was “dazed and confused.” Id. 214:4-6.

After Thazhathel left, McCall began to receive threats from his attacker. Id. at 199:6-11.

McCall overheard the cellmate who had assaulted him and another cellmate asking each other,

“should we finish him off[?] . . . I’m not going nowhere no time soon, so I might as well, ha, ha,

ha.” Id. at 199:14-18. McCall also heard his cellmates discussing what they would do to him if

he made another attempt to get help. Id. at 203:2-9, 214:6-11. McCall was afraid that one of his

cellmates might attack him again. Id. at 202:17-203:9. McCall “just couldn’t take it,” and he

“blacked out” until the next morning. Id. at 199:18-20.

On June 19, 2017, McCall finally received medical treatment for his eye and was

transported for care to Wills Eye Hospital. Id. at 212:4-6. The doctors at Wills Eye Hospital

could not save McCall’s right eye and eventually it was removed. Id. at 219:1-21.

Doctor Eydie Miller-Ellis, M.D., an ophthalmologist, and a Professor of Clinical

Ophthalmology at the Perelman School of Medicine at the University of Pennsylvania, provided

an expert report that concluded:

This injury was so extensive that the prognosis for vision recovery was very poor .

. . . The eyeball was split open and this resulted in massive hemorrhage and damage

to delicate intraocular structures, including the retina. With an injury of this severity

it cannot be said to a reasonable degree of medical certainly [sic] that earlier

intervention would have improved the outcome in this case. To the contrary, there

is a very poor chance that earlier surgery would have improved the outcome.

Def.’s Mot. Ex. C at 4, ECF No, 62-1.

II. PROCEDURAL BACKGROUND

On June 13, 2019, McCall filed a Complaint (“Original Complaint”) against Defendants

City of Philadelphia (“City”) and Corrections Officer John Doe,2 alleging that Defendants

violated his Eighth and Fourteenth Amendment rights. Compl., ECF No. 1. Shortly after filing

2 In the Original Complaint, McCall also brought suit against Defendant Corizon Health. On July 24,

2019, the parties stipulated to the dismissal of Corizon Health. ECF No. 7.

the Original Complaint, McCall’s counsel began reaching out to the City for assistance in

identifying the John Doe Officer.

On June 17, 2019, McCall’s counsel emailed the City “to inquire about service of the

complaint and identification of defendant John Doe.” Pl.’s Resp. Ex. E, ECF No. 66-1. The

City’s Chief Deputy City Solicitor responded, “Please mail waivers of service to my attention.

Once I assign the case we will request the investigation file which should aid us in identifying

[t]he ‘John Doe’ defendants.” Pl.’s Resp. Ex. F, ECF No. 66-1. On June 25 and July 8, 2019,

McCall’s counsel followed-up with the Chief Deputy City Solicitor to get the contact

information for the assigned attorney to work on identifying John Doe Officer. Pl’s Resp. Ex. G,

ECF No. 66-1.

On July 24, 29, and 30, 2019, after receiving the contact information for the assigned

attorney, McCall’s counsel reached out to the City’s counsel for assistance in identifying John

Doe Officer. Pl.’s Resp. Ex. H, ECF No. 66-1. At the end of July 2019, the City’s counsel

responded that he would consider the request to assist with identifying John Doe Officer when he

returned from vacation on August 16, 2019. Id. On August 19, 2019, McCall’s counsel again

reached out to the City’s counsel to work on identifying John Doe Officer. Pl.’s Resp. Ex. I,

ECF No. 66-1. That same day, the City’s counsel requested that McCall’s counsel send him

Rule 34 discovery requests to which he would respond in accordance with the Federal Rule of

Civil Procedure. Id. On August 27, 2019, McCall’s counsel responded:

In regard to our request for you to assist us in identifying defendant John Doe in

plaintiff’s complaint, we do not have the time to wait for the City to respond to a

Rule 34 request . . . . We only have 90 days from the filing of the complaint (until

September 13, 2019) to serve defendant Doe with an amended complaint according

to Federal Rule of Civil Procedure 4(m). We risk dismissal of the action if Doe is

not served before then. Therefore, unless you are willing . . . to assist us in

identifying John Doe, as was assured to us by your supervisor . . . at the time we

filed the complaint and as we have been requesting of the City ever since we filed

the complaint, we will proceed with a Motion to Conduct John Doe Discovery,

which we expect to file by the end of the week.

Id.

On September 2, 2019, after several failed attempts at getting the City’s cooperation in

identifying John Doe Officer, McCall filed a Motion for Leave to Conduct Limited John Doe

Discovery. Mot. Leave, ECF No. 11. On September 4, 2019, the Court granted McCall’s

motion. Order, ECF No. 13. In light of the Court’s order, on September 5, 2019, McCall’s

counsel reached out to the City’s counsel to schedule depositions necessary to identify John Doe

Officer. Pl.’s Resp. Ex. J, ECF No. 66-1. On September 13, 2019, the City’s counsel responded,

“We’re working to identify the best deponent.” Id. On September 17, 22, and 23, 2019,

McCall’s counsel reached out to the City’s counsel to schedule depositions. Pl.’s Resp. Ex. L,

ECF No. 66-1.

On September 24, 2019, the City’s counsel finally provided the names of three

correctional officers, including Thazhathel, who were working on McCall’s pod at CFCF at the

time of the injury to his eye. Pl.’s Resp. Ex. K ¶ 3, ECF No. 66-1. The City’s counsel stated that

he did not believe any depositions were necessary to identify the John Doe Officer. Pl.’s Resp.

Exs. L, Q, ECF No. 66-1. On that same date, September 24, 2019, the City’s counsel informed

McCall’s counsel for the first time that the City would not be representing any individual

defendants in the matter and that any individual defendants would be represented by Nicholas

Cummins. Id.

On September 26, 2019, the Court held a Rule 16 Conference, at which time McCall’s

counsel disclosed that they were still encountering difficulty getting the City to identify John

Doe Officer and moved for an extension of time to serve any John Doe Officer. Due to the

repeated attempts to learn the identity of John Doe Officer, the Court granted McCall’s motion

for an extension of time to serve any John Doe Officer until on or before November 20, 2019.

Order, ECF No. 17.

On October 2, 2019, Cummins confirmed his representation of Thazhathel. Pl.’s Resp.

Ex. M, ECF No. 66-1. On October 4, 2019, McCall’s counsel deposed Thazhathel. Def.’s Mot.

Ex. M, ECF No. 62-1. At his deposition, Thazhathel affirmed that he first learned of the lawsuit

on October 2, 2019. Id. at 58:5-13; see also Def.’s Mot. Ex. N at 88:17-23, ECF No. 62-1. On

October 22, 2019, McCall’s counsel advised Thazhathel and the City that McCall had identified

Thazhathel as John Doe Officer. Def.’s Mot. Ex. O, ECF No. 62-1.

On October 29, 2019, before the extension of time to serve any John Doe Officer had

expired, McCall filed a First Amended Complaint (“Amended Complaint”) replacing John Doe

Officer with newly named Defendant Corrections Officer Jojo Thazhathel.3 Am. Compl., ECF

No. 20. The factual allegations and claims in the Amended Complaint remained the same as in

the Original Complaint. Id.

III. STANDARD OF REVIEW

Summary judgment should be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.

R. Civ. P. 56(a). A fact is “material” if it “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is

“genuine” if the evidence would permit a reasonable jury to return a verdict for the nonmoving

party. Id. In ruling on a motion for summary judgment, the court must draw all inferences from

the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

3 In Plaintiff’s Amended Complaint, McCall also brought suit against Defendant City of Philadelphia. On

March 15, 2022, however, the Court entered a stipulation of dismissal of the City. ECF No. 69.

The moving party “always bears the initial responsibility of informing the district court of

the basis for its motion.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving

party has met its initial burden, the nonmoving party must then “make a showing sufficient to

establish the existence of [every] element essential to that party’s case, and on which that party

will bear the burden of proof at trial.” Id. at 322. Both parties must support their factual

positions by: “(A) citing to particular parts of materials in the record . . . ; or (B) showing that the

materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). The

materials in the record that parties may rely on include “depositions, documents, electronically

stored information, affidavits or declarations, stipulations (including those made for purposes of

the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). In opposing a motion for summary judgment, the nonmoving party may not “rely

merely upon bare assertions, conclusory allegations or suspicions.” Fireman’s Ins. Co. of

Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982).

The inquiry at summary judgment is “whether the evidence presents a sufficient

disagreement to require submission to a jury or whether it is so one-sided that one party must

prevail as a matter of law.” Anderson, 477 U.S. at 251-52.

IV. DISCUSSION

Thazhathel moves for summary judgment on the basis that the action is barred by the

statute of limitations and/or that Thazhathel is entitled to qualified immunity.

A. The Statute of Limitations

Thazhathel argues that McCall’s claims against him should be dismissed because

they are barred by the statute of limitations. In actions brought under § 1983, a court borrows

the state statute of limitations for personal injury actions. Owens v. Okure, 488 U.S. 235, 236

(1989). In Pennsylvania, the applicable statute of limitations for § 1983 actions is the two-year

statute of limitations applicable to personal injury actions. Garvin v. City of Philadelphia, 354

F.3d 215, 220 (3d Cir. 2003) (citing 42 Pa. Cons. Stat. Ann. § 5524(7)).

It is undisputed that the two-year statute of limitations for McCall’s claim began to run

when the assault and subsequent interaction with Thazhathel occurred on the evening of June 17

into June 18, 2017. The Original Complaint was filed on June 13, 2019. The Amended

Complaint was filed on October 29, 2019. On its face, McCall’s Amended Complaint was filed

four months after the statute of limitations had expired on June 18, 2019. Thazhathel contends

that the claims against him must be dismissed because the action against him was not brought

within the statute of limitations. McCall responds that the claims against Thazhathel were timely

filed because the Amended Complaint relates back to the Original Complaint that was filed

within the two-year statute of limitations.

The relation back doctrine “can ameliorate the running of the statute of limitations on a

claim by making the amended claim relate back to the original, timely filed complaint.”

Singletary v. Pa. Dept. of Corr., 266 F.3d 186, 193 (3d Cir. 2001). Federal Rule of Civil

Procedure 15(c) governs when an amended complaint identifying a John Doe defendant relates

back to the original complaint.4 Garvin, 354 F.3d at 220. For an amended complaint identifying

a John Doe to relate back, a plaintiff must show:

4 Federal Rule of Civil Procedure 15(c) provides that an amended pleading relates back to the date of the

original pleading when:

(A) the law that provides the applicable statute of limitations allows relation back;

(1) the claim or defense set forth in the amended pleading arose out of the conduct,

transaction or occurrence set forth in the original pleading; (2) within the time

period provided in Rule 4(m), the party or parties to be added received notice of the

institution of the suit and would not be prejudiced in maintaining a defense; and (3)

the party sought to be added knew that, but for a mistake concerning his or her

identity, he or she would have been made a party to the action.

Id. at 222.

Thazhathel only argues that the Amended Complaint does not relate back to the Original

Complaint because Thazhathel did not receive notice of the lawsuit until October 2, 2019, well

outside the 90-day period provided by Federal Rule of Civil Procedure 4(m). Rule 4(m) requires

a plaintiff to serve a defendant within 90 days after the complaint is filed, “[b]ut if the plaintiff

shows good cause for the failure, the court must extend the time for service for an appropriate

period.” Fed. R. Civ. P. 4(m). McCall contends that Thazhathel received timely notice because

he either had constructive notice of the suit within the 90-day period under the “shared attorney”

method or good cause under Rule 4(m) extended the notice period beyond the 90 days.

1. The “Shared Attorney” Method of Constructive Notice

“The ‘shared attorney’ method of imputing Rule 15(c) . . . notice is based on the notion

that, when an originally named party and the party who is sought to be added are represented by

the same attorney, the attorney is likely to have communicated to the latter party that he may

(B) the amendment asserts a claim or defense that arose out of the conduct, transaction, or

occurrence set out—or attempted to be set out—in the original pleading; or

asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule

4(m) for serving the summons and complaint, the party to be brought in by

amendment:

(i) received such notice of the action that it will not be prejudiced in defending on the

merits; and

(ii) knew or should have known that the action would have been brought against it, but

for a mistake concerning the proper party’s identity.

Fed. R. Civ. P. 15(c)(1).

very well be joined in the action.” Singletary, 266 F.3d at 196. A finding that the “shared

attorney” method applies requires proof that notice of the action can be imputed to the newly

named defendant within the 90-day period by virtue of representation the newly named

defendant shared with a defendant originally named in the lawsuit. Singletary, 266 F.3d at 196.

McCall contends that Thazhathel had constructive notice of the lawsuit under the “shared

attorney” method because the City’s counsel assumed responsibility for inquiries regarding the

identity of John Doe Officer and failed to inform McCall’s counsel that the City’s counsel did

not represent John Doe Officer. Thazhathel counters that the “shared attorney” method does not

apply because there is absolutely no evidence that the City’s counsel ever represented

Thazhathel.

The Third Circuit requires “a plaintiff . . . [to] show that there was ‘some communication

or relationship’ between the shared attorney and the John Doe defendant prior to the expiration

of the [90]–day period in order to avail him or herself of the shared attorney method of imputing

notice.” Garvin, 354 F.3d at 225 (quoting Singletary, 266 F.3d at 196-97). The City’s counsel

never accepted service of the complaint for Thazhathel, never told McCall’s counsel that he was

representing Thazhathel, never offered to provide legal services to Thazhathel, and never entered

an appearance on behalf of Thazhathel. Moreover, Thazhathel did not learn of the existence of

the lawsuit until after expiration of the 90-day period, on October 2, 2019, when Nicholas

Cummins contacted Thazhathel and offered to represent him. McCall “has failed to come forth

with any evidence of shared representation or communication.” Garvin, 354 F.3d at 225.

Therefore, McCall did not receive constructive notice of the lawsuit under the “shared attorney”

method.

2. Good Cause Extension of the Notice Period

Thazhathel had to receive notice of the Amended Complaint within the period provided

by Federal Rule of Civil Procedure 4(m), in order for the Amended Complaint to relate back to

the Original Complaint. Rule 4(m) requires a plaintiff to serve a defendant within 90 days after

the complaint is filed, “[b]ut if the plaintiff shows good cause for the failure, the court must

extend the time for service for an appropriate period.” Fed. R. Civ. P. 4(m).

McCall argues that even though Thazhathel did not receive notice within 90 days after

the Original Complaint was filed, McCall has demonstrated good cause to extend the notice

period beyond the 90-day period as provided by Rule 4(m). Thazhathel contends that good cause

is inapplicable to the notice period for relation back and does not extend Rule 15(c)’s notice

period. Alternatively, Thazhathel argues that even if good cause extends Rule 15(c)’s notice

period, McCall has not established that good cause exists for his failure to provide notice to

Thazhathel within the 90-day period.

For an amended complaint naming a John Doe defendant to relate back to the original

complaint, Rule 15(c) requires that the John Doe defendant received notice of the action “within

the period provided by Rule 4(m) for serving the summons and complaint.” Fed. R. Civ. P.

15(c)(1)(C). Thazhathel fails to provide any convincing reason why Rule 15(c)’s notice period

should incorporate Rule 4(m)’s 90-day period without also incorporating Rule 4(m)’s good cause

extension of that period. The Advisory Committee Note to Rule 15(c), supports the position that

good cause extends Rule 15(c)’s notice period:

In allowing a name-correcting amendment within the time allowed by Rule 4(m),

this rule allows not only the [90] days specified in that rule, but also any additional

time resulting from any extension ordered by the court pursuant to that rule, as may

be granted, for example, if the defendant is a fugitive from service of the summons.

Fed. R. Civ. P. 15, Advisory Comm. Notes (1991 Amendment) (emphasis added).5 Opinions

from several courts of appeal also support this position. In Robinson v. Clipse, the Fourth Circuit

explained that “Rule 15(c)’s notice period incorporates any extension of the [90]–day period

under Rule 4(m),” and held that the plaintiff had demonstrated good cause to extend the notice

period.” 602 F.3d 605, 608 (4th Cir. 2010). Similarly, the Eighth Circuit has clarified that

“[t]he [90]–day [notice] requirement . . . can be extended by any service-of-process extensions

the district court might grant for ‘good cause.’” Lee v. Airgas Mid-S., Inc., 793 F.3d 894, 897

n.3 (8th Cir. 2015) (citing Fed. R. Civ. P. 4(m); Fed. R. Civ. P. 15, advisory committee’s note

(1991)). In fact, courts of appeal that have addressed this issue have uniformly agreed that Rule

15(c)’s notice period incorporates Rule 4(m)’s good cause extension of that period. See Donald

v. Cook Cty. Sheriff’s Dept., 95 F.3d 548, 561 (7th Cir. 1996) (remanding to the district court to

determine whether good cause existed to extend Rule 15(c)’s notice period); Skoczylas v. Fed.

Bureau of Prisons, 961 F.2d 543, 545 (5th Cir. 1992) (noting that Rule 15(c)’s notice period can

be extended if good cause is shown); Green v. Robinson, 112 F. App’x 165, 169 (3d Cir. 2004)

(considering whether the plaintiff “satisfied the requirements of Rule 15(c)(3) because he ha[d]

‘good cause’ for his failure to provide timely notice”); Jackson v. Herrington, 393 F. App’x 348,

353 (6th Cir. 2010) (holding that the plaintiff qualified for a good cause extension of Rule

15(c)’s notice period). The plain language of Rule 15(c), the Advisory Committee Note, and

5 Thazhathel argues that the Advisory Committee Note only provides for an extension of the 90-day

period to provide notice when a defendant is “a fugitive from service of the summons.” Fed. R. Civ. P.

15, Advisory Comm. Notes (1991 Amendment). The Advisory Committee note, however, clearly

explains that “any extension ordered by the court pursuant to” Rule 4(m) extends the period for providing

notice and that “a fugitive from service” is only one such “example” of when an extension might be

granted. Id.

persuasive authority from several courts of appeal establish that Rule 15(c)’s notice period

incorporates Rule 4(m)’s good cause extension of the 90-day period.6

If McCall can establish that good cause entitles him to an extension of the 90-day notice

period, then McCall’s Amended Complaint naming Thazhathel as a defendant will relate back to

his Original Complaint. A finding of good cause for an extension “requires ‘a demonstration of

good faith on the part of the party seeking an enlargement and some reasonable basis for

noncompliance within the time specified in the rules.’” MCI Telecommunications Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (quoting Petrucelli v. Bohringer and

Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995)). “[T]he primary focus is on the plaintiff’s reasons

for not complying with the time limit in the first place.” Id.

McCall argues that good cause exists for an extension because he diligently pursued

discovery of Thazhathel’s identity after he filed the Original Complaint. Thazhathel argues that

good cause does not exist because McCall delayed filing the Original Complaint until only a few

days before expiration of the statute of limitations. McCall’s decision to file his Original

Complaint less than a week before the expiration of the statute of limitations, however, is

irrelevant because whether good cause exists depends entirely on whether McCall had a good-

faith, reasonable basis for failing to provide notice to Thazhathel of the lawsuit within the 90-day

period after he filed the Original Complaint.

6 In addition to requiring a court to extend time if good cause is shown, Rule 4(m) “allow[s] a court

discretion to dismiss or extend time absent a showing of good cause.” Petrucelli v. Bohringer &

Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Because Rule 15(c)’s notice period incorporates any

extensions allowed by Rule 4(m), a court also has the discretion to extend the Rule 15(c) notice period

absent a showing of good cause. As discussed below, good cause exists to extend the notice period. If,

however, McCall did not have good cause to extend the notice period, the Court would grant a

discretionary extension of the notice period. See Petrucelli, 46 F.3d at 1305 (instructing the district court

to first determine if good cause exists for an extension, and if good cause doesn’t exist, then allowing the

court in its discretion to decide whether to grant an extension).

Alternatively, Thazhathel argues that good cause does not exist because McCall delayed

engaging in John Doe discovery after he filed the Original Complaint. McCall filed his Original

Complaint on June 13, 2019. The 90-day notice period expired on September 11, 2019.

Thazhathel contends that McCall did not diligently engage in John Doe discovery because

McCall delayed moving for John Doe discovery until September 2, 2019, and he delayed moving

for an extension of time to serve John Doe Officer until September 26, 2019. McCall counters

that he continuously pursued John Doe discovery with the City’s counsel during the entire period

between the filing of the Original Complaint and the Amended Complaint.

The record reveals that McCall’s counsel worked diligently and tried to work

cooperatively with the City’s counsel to identify the John Doe Officer during the 90-day notice

period. On June 17, 2019, only a few days after filing the Original Complaint, McCall’s counsel

emailed the City “to inquire about service of the complaint and identification of defendant John

Doe.” Pl.’s Resp. Ex. E. The Chief Deputy City Solicitor responded, “Please mail waivers of

service to my attention. Once I assign the case we will request the investigation file which

should aid us in identifying [t]he ‘John Doe’ defendants.” Pl.’s Resp. Ex. F. On June 25 and July

8, 2019, McCall’s counsel followed up with the Chief Deputy City Solicitor. Then, on July 24,

29, and 30, 2019, McCall’s counsel followed up with the attorney assigned to serve as the City’s

counsel.

At the end of July 2019, more than a month after McCall’s counsel began inquiring about

the identity of John Doe Officer, the City’s counsel responded that he would consider the request

to assist with identifying John Does Officer when he returned from vacation on August 16, 2019.

On August 19, 2019, McCall’s counsel again reached out to the City’s counsel to work on

identifying John Doe Officer.

For the first time, more than two months after McCall’s counsel began asking for

assistance to identify John Doe Officer, the City’s counsel requested that McCall’s counsel send

him Rule 34 discovery requests. On August 27, 2019, McCall’s counsel responded: