Barney

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHAEL L. JOHNSON, :

:

Plaintiff, : Case No. 1:21-cv-00141 consolidated with

: Nos. 1:21-cv-171 and 1:21-cv-155

vs. :

: Judge Jeffery P. Hopkins

BRIAN BARNEY, et al, :

:

Defendants. .

:

ORDER ADOPTING REPORT AND RECOMMENDATION

Plaintiff Michael L. Johnson (“Plaintiff” or “Mr. Johnson”), pro se, initiated these

consolidated1 civil rights proceedings in forma pauperis in March 2021. Mr. Johnson, an inmate

at the Southern Ohio Correctional Facility, filed complaints (“Complaint”) against certain

officers and employees at the facility after the officers allegedly attacked him, and staff

members watched the altercation that ensued on March 13, 2019.2 Doc. 1-2, PageID 126.

Following a sua sponte review of Plaintiff’s Complaint, Chief Magistrate Judge Bowman

issued a Report and Recommendation3 (No. 1:21-cv-00155, Doc. 6, PageID 77) (“R&R”) on

April 26, 2021, which was adopted by this Court. The Order determined that Mr. Johnson’s

claims could proceed against the unidentified “John and Jane Doe defendants.” Id.

1 Unless otherwise specified, document numbers referenced herein refer to docket numbers contained in the

main case, Johnson v. Barney, 1:21-cv-00141. By Orders entered on May 27, 2021 (Doc. 13), and June 7, 2021

(Doc. 15), respectively, this case was consolidated with case numbers 1:21-cv-171 and 1:21-cv-155. The

consolidated cases were reassigned to the undersigned Judge from the Hon. Matthew W. McFarland by Order

of the then, Chief Judge on December 21, 2022. Doc. 117.

2 Magistrate Judge Litkovitz summarized the facts underlying each consolidated case. See Doc. 164, PageID

1774.

3 The Court’s directive regarding service of the Complaint on any unidentified defendants was issued in Johnson

v. Hill, et al., No. 1:21-cv-155 by Magistrate Judge Bowman. Doc. 6, PageID 77. The Hon. Matthew W.

McFarland issued an Order adopting the R&R. Doc. 9.

Importantly, however, Mr. Johnson was directed to “file a motion to issue service” to the

unidentified defendants “if and when” he discovered their identity “through discovery.” Id.

Judge Bowman further advised “that no service [would] be issued on the unnamed defendant

unless plaintiff complie[d]” with the Order. Id.

Over four years passed, then on July 23, 2025, Plaintiff filed the present motion4 (Doc.

161) (the “Motion”), claiming that it complies with Magistrate Judge Bowman’s directive.

See Doc. 173, PageID 1851–52. In the Motion, Mr. Johnson seeks to have the Court issue an

order directing service upon previously unidentified defendant, Michael T. Barney.5 Doc.

161, PageID 1752. In the meantime, after Plaintiff filed the Motion, Magistrate Judge Karen

L. Litkovitz issued an R&R (Doc. 164) and a supplemental R&R (Doc. 167), in the main

case. See n.1. In Magistrate Judge Litkovitz’s R&R (Doc. 164), issued in the main case, she

recommends denial of Plaintiff's Motion (Doc. 161) because Ohio’s two-year statute of

limitations had lapsed, and Plaintiff failed to meet the relation-back requirements of Rule

15(c)(1)(C) of the Federal Rules of Civil Procedure. Doc. 164, PageID 1776–79.

Mr. Johnson objected. Docs. 173, 184. In Mr. Johnson’s view, he timely complied

with Magistrate Judge Bowman’s R&R, adopted by this Court, directing him to “file a motion

to issue service” to the unidentified defendant “when [he] discover[ed]” that individual’s

identity through discovery. No. 1:21-cv-00155, Doc. 6, PageID 77. See No. 1:21-cv-00141,

Doc. 173, PageID 1851–52. According to Mr. Johnson, the filing of the present Motion

4 Mr. Johnson filed the Motion (Doc. 161, PageID 1752) in Johnson v. Barney, 1:21-cv-00141. In the Motion,

however, he requests issuance of service to Michael T. Barney in Johnson v. Hill, 1:21-cv-155.

5 For clarity, Mr. Johnson also requests (a) issuance of service to the unidentified defendant, David C. Conley;

(b) for Elmer A. Gregons to be named as a defendant; and (c) to substitute David Conley for J. Neff. The Court

notes, however, that Magistrate Judge Litkovitz considered the requested relief (see Doc. 133) in a previous R&R,

in which the Undersigned adopted the Magistrate Judge’s decision (Doc. 141), denying Mr. Johnson’s request

to file an Amended Complaint to add the proposed defendants into the action because Plaintiff failed to satisfy

the relation-back requirements of Rule 15(c)(1)(C). See Docs. 127, 133. Accordingly, at this juncture, the Court

considers Plaintiff’s arguments only as to proposed defendant, Michael T. Barney.

evinces his compliance with the Court’s order. Doc. 173, PageID 1851–52. Defendants

oppose the Motion contending that Plaintiff’s proposed amendment to the Complaint to add

Mr. Barney at this late date is time-barred. Doc. 176, PageID 2062–63.

For the reasons stated below, Plaintiff's objection is OVERRULED, and Magistrate

Judge Litkovitz’s R&R (Doc. 164) is ADOPTED in its entirety.

I. STANDARD OF REVIEW

If a party objects within the allotted time to a report and recommendation, the Court

“shall make a de novo determination of those portions of the report or specified proposed

findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C); see also

Fed. R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in

part, the findings or recommendations made by the magistrate judge.” Id., § 636(b)(1). In

general, Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend a

complaint should be “freely give[n] when justice so requires. Fed. R. Civ. P. 15(a)(2). The

rule embodies a “liberal amendment policy.” Brown v. Chapman, 814 F.3d 436, 442 (6th Cir.

2016) (citation omitted). Even in instances where amendment is not permitted as a matter of

course it may still be allowed “with the opposing party’s written consent or the court’s leave.”

Rule 15(a)(2). However, denial of leave to amend “may be appropriate when there is ‘undue

delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed undue prejudice to the opposing party by

virtue of allowance of the amendment, futility of amendment, etc.’” Brown, 814 F.3d at 443

(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

II. LAW & ANALYSIS

Mr. Johnson’s objection must be overruled. As noted, Mr. Johnson’s Motion asks the

Court to issue service upon the previously unidentified defendant, Mr. Barney. Doc. 161. In

doing so, Plaintiff states that, by filing the Motion, he directly complied with Magistrate Judge

Bowman’s order to “file a motion to issue service” to Mr. Barney, “when [he] discover[ed]”

his identity. No. 1:21-cv-00155, Doc. 6, PageID 77. See No. 1:21-cv-00141, Doc. 173, PageID

1851–52. Unfortunately, for Mr. Johnson, however, the Magistrate Judge’s directive did not

relieve him of his obligation to comply with Rule 15(c)(1)(C) of the Federal Rules of Civil

Procedure when filing the Motion, even as a pro se litigant. In re Sharwell, No. 97-3320, 1997

WL 681509, at *1 (6th Cir. Oct. 30, 1997) (“While [the plaintiff] was proceeding pro se and

may not have fully understood the rules of procedure, he was still required to comply with

the rules.”). Mr. Johnson, however, failed to do so.

The Motion currently before the Court represents Mr. Johnson’s misguided attempt to

invoke the provisions of Rule 15(c)(1)(C) to add Mr. Barney as a defendant in these

proceedings over six years after the incident charged in the Complaint occurred. Because the

expiration of the applicable statute of limitations period for § 1983 actions lapsed in March

2021 (i.e., two years after Mr. Johnson claims the altercation at the prison occurred on March

13, 2019), Mr. Johnson’s request for amendment was required to comply with the commands

of Rule 15(c)(1)(C). Brown v. Cuyahoga Cnty., Ohio, 517 F. App'x 431, 433 (6th Cir. 2013)

(“Replacing a ‘John Doe’ defendant with a new, previously unknown party is considered a

change of parties and must comply with the requirements of Rule 15(c)(1)(C) when the change

is made after the expiration of the applicable statute of limitations.”); Asher v. Unarco Material

Handling, Inc., 596 F.3d 313, 318 (6th Cir. 2010) (“Rule 15(c)(1)(C) . . . applies, by its plain

language, to changes to defendants.”). Plaintiff failed to satisfy the requirements of Rule

15(c)(1)(C).

Under Rule 15(c)(1)(C), Plaintiff’s claims against Mr. Barney in the instant action do

not relate back to his original Complaint. Under the “relation back” doctrine, the issues

presented in the case must relate back to conduct averred in the original pleading and the

correct party must be served within ninety days of the filing of the initial complaint, pursuant

to Rule 4(m).6 Fed. R. Civ. P. 4(m); see Lockhart v. Holiday Inn Exp. Southwind, 531 F. App'x

544, 548 (6th Cir. 2013). In addition, the Sixth Circuit has gone so far as to hold that a court

must extend the time for service under Rule 4(m), if the moving party makes a showing of

good cause for the delay. United States v. Oakland Physicians Med. Ctr., LLC, 44 F.4th 565, 568

(6th Cir. 2022). To invoke Rule 15(c)(1)(C)’s “relation back” doctrine, a plaintiff must also

demonstrate that the party to be added received sufficient notice of the action so that he will

not be unfairly prejudiced in defending on the merits and that the party knew or should have

known the action would have been brought against him but for a mistake concerning the

proper party's identity. Fed. R. Civ. P. 15(c)(1)(C).

Applying these principles to the present facts, Mr. Johnson first asserts that the

previously unnamed defendant, Mr. Barney, was involved, in some respects, in the alleged

attack against him that occurred on March 13, 2019. Doc. 161, PageID 1752. And, according

to Mr. Johnson, the proposed amendment asserts claims and potential defenses that arose out

of the conduct set forth in the original Complaint, satisfying the requirements of Rule

15(c)(1)(B). Finally, Mr. Johnson contends that his failure to serve Mr. Barney with the

6 In 2015, the notice period outlined in Rule 4(m) was reduced from 120 to 90 days. Fed. R. Civ. P. 4(m)

Advisory Comm. Notes (2015 Amend.) (designed to “reduce delay at the beginning of litigation.”).

summons and Complaint within the 90-day period, pursuant to Rule 4(m), should be excused

under the present set of facts. See Fed.R.Civ.P. 4(m). According to Mr. Johnson, his delay in

serving Mr. Barney was justified because the Magistrate Judge’s directive merely required him

to “file a motion to issue service” to the unidentified defendant, “when [he] discover[ed]” his

identity, placing no time constraints on when it had to be done. No. 1:21-cv-00155, Doc. 6,

PageID 77 (emphasis added). See Doc. 173, PageID 1851–52.

Here, it is unclear when Mr. Johnson discovered Mr. Barney’s identity. Mr. Johnson

asserts that he “received discovery responses on July 7, 2022,” which alerted him, and also

references receiving a “first set of interrogatories by Attorney General Marcy A. Vonderwell”

without providing the relevant date. Doc. 161, PageID 1749, 1751–52. In any regard, Mr.

Johnson now asserts that this Court should now order that Mr. Barney be served with the

Complaint and made a defendant in this § 1983 action. Doc. 161, PageID 1751. Even so, Mr.

Johnson fails to explain why he waited an additional three years from that date he received

discovery responses, on July 7, 2022, until now to attempt to join Mr. Barney in this litigation

and to have this Court issue service upon him. Id.

Adding Mr. Barney as a defendant to the present action at this late date—after

potentially discovering his identity three years earlier—would not only be prejudicial to Mr.

Barney because of Plaintiff’s significant delay in seeking the requested relief, but it also

represents a substantial waste of judicial resources. Here, Magistrate Judge Litkovitz has

already issued an R&R recommending that Defendants’ motion for summary judgment be

denied. Doc. 189, PageID 2284. Mr. Barney did not participate in those proceedings and to

add him as a defendant now would not only further delay the case, but would also be

extremely prejudicial, considering Mr. Barney would need to get up to speed in a short

amount of time, would have missed the opportunity to obtain discovery and an ability to file

his own motion for summary judgment. Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002)

(“At some point... ‘delay will become ‘undue,’ placing an unwarranted burden on the court,

or will become ‘prejudicial,’ placing an unfair burden on the opposing party.”) (quoting Adams

v. Gould, 739 F.2d 858, 868 (3d Cir.1984). Additionally, as noted by the Magistrate Judge, a

showing of “good cause” for the delay in service under Rule 4(m), would not resolve this

matter in Plaintiff's favor because Mr. Johnson failed to show that Mr. Barney “knew or

should have known that the action would have been brought against him” but for a mistake,

pursuant to Rule 15(c)(1)(C).

I. CONCLUSION

Finding no error, it is ORDERED that Plaintiff's objection is OVERRULED, and the

Report and Recommendation (Doc. 164) is ADOPTED in its entirety. Accordingly,

Plaintiffs Motion (Doc. 161) is DENIED.

IT IS SO ORDERED.

March 5, 2026 He Loh

ery ins

United States District Judge