govinfo:USCOURTS-gand-1_25-cv-00265-1

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
 
Dianne Graham, 
 
Plaintiff, 
 
v. 
 
Antonio Long, et al,, 
 
Defendants. 
 
________________________________/ 
 
 
 
 
Case No. 1:25-cv-265-MLB 
 
 
 
 
OPINION & ORDER 
 Defendants Antonio Long, Mike Keener, Wanda Zellars, and 
Delmonica Dewberry move to dism iss Plaintiff Dianne Graham’s 
discrimination and retaliation clai ms as barred by the statute of 
limitations.  (Dkt. 26.)  The Magistrate Judge issued a Report and 
Recommendation (“R&R”) saying this Court should grant that motion in 
part.  (Dkt. 33.)  Defendants object .  (Dkt. 35.)  The Court adopts the 
recommendation. 
I. Background 
Dianne Graham (a light-skinned African American) worked for 
Clayton State University (CSU) fr om 1999 until her termination on 
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January 19, 2021.  (Dkt. 9 ¶ 12.)  At first, she worked as an Assistant 
Communications Manager but th en became a Public Safety 
Communications Dispatcher.  ( Id. ¶¶ 13, 26.)  When she made that 
transition, Defendant Delmonica De wberry (a dark-skinned African 
American) took her prior position.  ( Id. ¶  2 8 . )   I n  b o t h  r o l e s ,  G r a h a m  
reported to Defendants Wanda Zellars and Antonio Long (two more dark-
skinned African Americans).  ( Id. ¶¶ 14, 17.)  Dewberry and Defendant 
Mike Keener replaced Zellars and Long and now hold their positions.  (Id. 
¶¶ 6–9.) 
In March 2020, Graham told Ze llars her dark-skinned African 
American coworkers were “verbal[ly]  disrespect[ing] her based on the 
color of her skin.”  (Id. ¶ 20.)  Zellars did not discipline the employees who 
allegedly disrespected Graham, and th e “colorist treatment” continued.  
(Id. ¶  23.)  Eventually, Graham no ticed she was working fewer hours 
and complained to Zellars, stating “is this happening because I’m lighter 
skinned.”  ( Id. ¶¶ 34-36.)  A little more than a week later, Zellars and 
Long terminated her employment.  (Id. ¶ 37.)   
Graham filed her original compla int on January 21, 2025, naming 
the Board of Regents of the University System of Georgia (“the BOR”) as 
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the sole defendant (but referring to Zellars and Dewbe rry by name).  
(Dkt. 1.)  She asserted discriminati on and retaliation claims under 42 
U.S.C. § 1981.  (Id. ¶¶ 35–53.)  She filed the complaint on the final day of 
the statute of limitations.1  The BOR—represented by the same counsel 
as Defendants—moved to dismiss,  arguing it was an “improper 
defendant” for a section 1981 claim and was entitled to Eleventh 
Amendment immunity.  (Dkt. 4. at 5. )  Instead of responding, Graham 
amended her complaint on April 9,  2025.  (Dkt. 9.)  The amended 
complaint substituted Dewberry, Long, Keener, and Zellars for the BOR; 
added corresponding allegations; and asserted new Equal Protection 
claims.2  (Id.)  
 
1 The four-year anniversary of Grah am’s termination was January 19, 
2025, which fell on a Sunday.  The next day was MLK day.  So the statute 
of limitations did not expire  until January 21, 2025.  See Baker v. 
Birmingham Bd. of Education, 531 F.3d 1336, 13 37–38 (11th Cir. 2008) 
(holding that the four-y ear limitations period set out in 28 U.S.C. § 
1658(a) applies to section 1981 claims against public actors). 
2 The Magistrate Judge found Grah am untimely asserted her Equal 
Protection claims.  (Dkt. 33 at 8.)  Neither side objects to that conclusion.  
The Court agrees well.  A two-year statute of limitations applies to 
Graham’s constitutional  claims, so her Equal Protection claims were 
untimely, even if they relate back to the initial pleading.  See Mullinax v. 
McElhenney, 817 F.2d 711, 716 n.2 (11th Cir. 1987).   
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Defendants moved to dismiss, ar guing Graham’s claims are time-
barred and fail as a matter of law.  (Dkt. 26.)  The Magistrate Judge 
issued the R&R, finding Graham’s section 1981 claims against Keener 
and Dewberry (in their official capacities) and Zellers and Long (in their 
individual capacities) relate back to the original pleading and thus are 
not barred by the statute of limitat ions.  (Dkt. 33 at 15–17.)  She also 
concluded that, notwithstanding its timeliness, Graham’s individual-
capacity claim against Long fa ils as a matter of law.  ( Id. at 24.)  
Defendants only object to the Magistrate Judge application of the relation 
back rule.  (Dkt. 35 at 2.)  Graham filed no objections. 
II. Standard of Review 
A. Motion to Dismiss 
“To survive a motion to dismiss, a complaint must contain sufficient 
factual matter, accepted as true, to state a claim to relief that is plausible 
on its face.”  Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009).  “A claim has 
facial plausibility when th e plaintiff pleads factual content that allows 
the court to draw the reasonable inference that the defendant is liable for 
the misconduct alleged.”  Id.  The party seeking dismissal, of course, 
bears the burden of showing he or she is entitled to dismissal, including 
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by “presenting adequate support for their position.”  Caldwell v. 
Kimberly-Clark USA, LLC, 783 F. Supp. 3d 1367, 1377 (S.D. Ala. 2024). 
B. R&R 
28 U.S.C. § 636(b)(1) requires distri ct courts to “make a de novo 
determination of those portions of [an R&R] to which objection is made.”  
Any such objection “must specifically identify the portions of the [R&R] 
to which objection is made and th e specific basis for objection.”  
McCullars v. Comm’r, SSA , 825 F. App’x 685, 694 (11th Cir. 2020); 3 see 
United States v. Schultz, 565 F.3d 1353, 1360 (11th Cir. 2009) (“[A] party 
that wishes to preserve its objection must clearly advise the district court 
and pinpoint the specific findings that the party disagrees with.”).  
“Frivolous, conclusive, or general objections need not be considered by the 
district court.”  Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).   
“It does not appear that Congress intended to require district court 
review of a magistrate’s factual or le gal conclusions, under a de novo or 
 
3 The Court recognizes McCullars is unpublished and not binding.  The 
Court cites it and other unpublished cases nevertheless as  instructive.  
See Searcy v. R.J. Reynolds Tobacco Co. , 902 F.3d 1342, 1355 n.5 (11th 
Cir. 2018) (“Unpublished cases do no t constitute binding authority and 
may be relied on only to the extent they are persuasive.”). 
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any other standard, when neither pa rty objects to those findings.”  
Thomas v. Arn, 474 U.S. 140, 150 (1985).  In most cases, “[a] party failing 
to object to [an R&R] waives the right to challenge on appeal the district 
court’s order based on unobjected-t o factual and legal conclusions.”  
McGriff v. Comm’r, SSA , 654 F. App’x 469, 472  (11th Cir. 2016).  
Ultimately, whether objections are f iled, a district court “may accept, 
reject, or modify, in whole or in pa rt, the findings or recommendations 
made by the magistrate judge.”  28 U.S.C. § 636(b)(1). 
III. Discussion 
Under Federal Rule of Civil Pr ocedure 15(c)(1)(C), an amendment 
to a pleading that changes a party relates back to the date of the original 
pleading when (1) it asserts a cl aim arising out of the conduct, 
transaction, or occurrence alleged in the original co mplaint, (2) the 
proposed new defendant received notice of the action within 90 days from 
the start of the origin al action, and (3) the proposed new defendant 
“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)(C) (emphasis added).
  
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The Magistrate Judge found the first requirement easily met 
because Graham’s current claims arise from the same events at issue in 
her initial complaint.  (Dkt. 33 at 12.)  She found the second requirement 
also easily met because Graham fi led the current complaint against 
Defendants just 74 days after the initial complaint, Zellars and Dewberry 
were named in the original compla int, and the lawyer who moved to 
dismiss the original complaint for improperly naming the BOR as an 
improper defendant represents all four Defendants.  (Id.)  Defendants do 
not object to these conclusions,  and the Court adopts them.  Kuria v. 
Palisades Acquisition XVI, LLC , 752 F. Supp. 2d 1293, 1305 (N.D. Ga. 
2010) (“Because counsel for the inco rrectly named defendant was the 
same person as for the correctly named defendant, there was immediate 
actual notice to the proper defendant that it should have been named in 
the lawsuit but for Kuria’s mistake.”). 
As to the third requirement, the Magistrate Judge assumed 
Graham’s failure to name Defendants  in the original complaint was a 
“legal mistake” that qualifies under  Rule 15(c)(1)(C)(ii).  (Dkt. 33 at 12–
13.)  So the Magistrate Judge focuse d on whether Defendants “knew or 
should have known” they would ha ve been named in the original 
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complaint but for Graham’s mistake.  ( Id. at 12–17.)  She inferred they 
did by looking at the relief Graham sought in her original complaint.  (Id.)  
The Magistrate Judge reasoned that, because Defendants were aware of 
the lawsuit and the BOR was immune from suit, they would have known 
they were the only parties who could provide Graham with monetary and 
injunctive relief.  Specifically, they  would have known that Keener and 
Dewberry (in their official capacities) were the proper parties to provide 
injunctive relief because only a current state official su ed in his or her 
official capacity has the author ity to effect such relief.  ( Id. at 14–15 
(citing DeWitt v. Person, 2025 WL 1368170, at *2 n.3 (11th Cir. May 12, 
2025)).)  And they would have known that Long and Zellars (in their 
individual capacities) were the prop er parties to Graham’s claims for 
monetary relief because only officials sued individually can be liable for 
damages and Graham did not allege Dewberry and Keener personally 
participated in the alleged misconduct.  (Id.)  Thus, the Magistrate Judge 
concluded Graham’s section 1981 clai ms against Long and Zellars (in 
their individual capaciti es) and against Keener and Dewberry (in their 
official capacities) related back to the original pleading.  (Id. at 16–17.) 
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Defendants’ only object to the Ma gistrate Judge’s conclusion that 
Graham’s “legal mistake” in naming  the BOR qualifies as a “mistake” 
under Rule 15(c)(1)(C)(ii).  (Dkt. 35.)  They contend a “legal mistake” is 
not a cognizable “mistake” under Rule  15(c) because it is not one that 
“concern[s] the proper party’s identity” or “the role that a party played in 
the conduct, transaction, or occurrence giving rise to [Graham’s] claim.”  
(Dkt. 35 at 5–8 (quoting Fed R. Civ. P. 15(c)(1)(C)(ii) and Krupski v. Costa 
Crociere S.p.A., 560 U.S. 538, 549 (2010)).)  Th ey thus argue they could 
not have “known the action would ha ve been brought against them but 
for a mistake,” because Graham’s failu re to name them in the original 
complaint was not a mistake under Rule 15(c).  (Dkt. 35 at 5–8.)  
Though the Court concurs with the R&R’s conclusion that Graham 
satisfies the mistake requirement— and thus overrules Defendants’ 
objection—they are right to question how the Magistrate Judge got there.  
It appears the Magistrate Judge assumed, without explanation, that any 
“legal mistake” necessarily qualifie s as a “mistake” under Rule 15(c).  
(See Dkt. 33 at 12–17.)  But the Eleven th Circuit has never squarely 
addressed the issue.  So the Court does. 
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A mistake is defined as “[a]n  error, misconception, or 
misunderstanding; an erroneous belief.”  Krupski, 560 U.S. at 548.  
Courts construe the term “mistake” liberally in applying Rule 15(c).  See 
Itel Capital Corp. v. Cups Coal Co ., 707 F.2d 1253, 1258 n.9 (11th Cir. 
1983).  Further, and critical here, “[ t]hat a plaintiff knows of a party’s 
existence does not preclude her from  making a mistake with respect to 
that party’s identity.”  Krupski, 560 U.S. at 549.  This is because: 
“[A] plaintiff might know th at the prospective defendant 
exists but nonetheless harbor a misunderstanding about his 
status or role in the events givi ng rise to the claim at issue, 
and she may mistakenly choose to sue a different defendant 
based on that misimpression. That kind of deliberate but 
mistaken choice does not fo reclose a finding that Rule 
15(c)(1)(C)(ii) has been satisfied. 
Id. 
The Second, Sixth, and Seventh Circuits have held a mistake of law 
can qualify as a “mistake” under Rule 15(c) in certain circumstances.  See, 
e.g., Black-Hosang v. Ohio Dep’t of Public Safety , 96 F. App’x 372, 375–
76 (6th Cir. 2004); Soto v. Brooklyn Corr. Facility, 80 F.3d 34, 35–36 (2d 
Cir. 1996); Woods v. Indiana Univ.-Purdue Univ. at Indianapolis , 996 
F.2d 880, 887 (7th Cir. 1993).  In each of those cases, the plaintiff initially 
sued an institutional defendant that  was either immune from suit or 
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could not be liable on the facts alle ged, and then—after discovering the 
legal mistake—amended his or her complaint outside the limitations 
period to substitute individual defendants who were amenable to suit.  In 
each case, the court concluded the am endment related back to the filing 
of the original complaint.  
In Soto, for example, the plaintiff brought a failure-to-protect claim 
against a correctional facility for allowing him to be attacked by another 
inmate.  Arguing the plaintiff was asserting a so-called Monell claim, the 
defendant moved to dismiss because the plaintiff had not alleged a 
municipal policy or custom as required for such a claim.  Soto, 80 F.3d at 
35.  Plaintiff recognized his legal error and sought to amend his complaint 
outside the limitations period to subs titute the corrections officers who 
he believed failed to protect him.  Id.  The Second Circuit held the 
plaintiff’s erroneous naming of th e facility was a “legal mistake” 
cognizable under Rule 15(c).  Id.  It reached this conclusion for two 
reasons.  First, the court conclude d plaintiff’s failure to name the 
individual defendant “[could] not be considered a matter of choice” 
because the plaintiff “was required” to  sue the individual defendants to 
maintain his action.  Id.  Second, the court noted that the “‘mistake’ 
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criterion was introduced in the 1966 Amendment to Rule 15” and, 
according to the Advisory Committee Notes, the “language was prompted 
by several cases in which plaint iffs, unaware of the technical 
requirements of the law, mistaken ly named institutional instead of 
individual defendants.”  Id.   
In Black-Hosang, the plaintiff sued the Ohio Department of Public 
Safety—an entity entitled to Elev enth Amendment immunity—for false 
arrest without including the officer who had arrested her.  96 F. App’x at 
373.  When the government entity moved to dismiss, the plaintiff sought 
to substitute the officer after expiration of the statute of limitations.  Id.  
Relying on Soto, the Sixth Circuit found the plaintiff’s legal error was 
“exactly the sort of mistake contemplated by the drafters” of the Rule.  Id. 
at 375.  The court also conclude d the mistake was necessarily one 
“concerning the identity of the proper party” because “[s]he erroneously 
sued the [institutional defendant]  when she should have sued the 
individual officer.”  Id. at 375–77.   
Finally, in Woods, the plaintiff sued a state university and its police 
department—two entities entitled to Eleventh Amendment immunity—
alleging they illegally search his home.  996 F.2d at 883.  After the court 
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dismissed his complaint, plaintiff filed an amended complaint outside the 
limitations period against the individuals responsible for the search.  Id.  
The Seventh Circuit found the amendment related back to the time of the 
original pleading because “every state’s sovereign immunity from, and all 
state employees’ personal exposure to, section 1983 liability for 
constitutional torts was clearly established when [the] lawsuit was filed 
(even though that realization came only belatedly to [plaintiff’s] lawyer).”  
Id. at 887.  Thus, the plaintiff committed an obvious “legal blunder,” and 
“the omitted defendants should have known . . . they would have been 
named to begin with but for” the plaintiff’s mistake.  Id.  
The Court finds these cases persua sive.  A legal mistake may be a 
“mistake concerning the proper party’s identity” under Rule 15(c) where 
a plaintiff erroneously sues an entity that cannot be liable to it, in lieu of 
a correct one, based on a misunderst anding of the original defendant’s 
legal status, including its ability to be held liable.  Such is the case here.  
Graham intended to assert a claim based on her alleged mistreatment by 
Zellars and Long.  She initially sued the BOR, evidently believing it was 
amenable to suit and could provide th e relief she sought.  (Dkt. 1.)  But 
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Graham was mistaken.4  (See Dkt. 33 at 12–17.)  Just as the plaintiffs in 
Soto, Black-Hosang, and Woods, Graham made a mistake as to the 
identity of the proper party to sue for her injuries—she believed it was 
the BOR when it was Keener, Dewbe rry, Zellars, and Long.  That was a 
“mistake” within the meaning of Rule 15(c)(1)(C)(ii).  This understanding 
of a “mistake” is consistent with Krupski.  In that case, the Supreme 
Court found a plaintiff’s prior knowledge of the “proper party’s” existence 
does not preclude a finding of mistake where the plaintiff has a 
“[mis]understanding [of] the factual and legal differences” between that 
known party and the party initially sued.  Krupski, 560 U.S. at 549 
(emphasis added) (“A plaintiff may know that a prospective defendant—
call him party A—exists, while erron eously believing him to have the 
status of party B. … If the plaintiff sues party B instead of party A under 
these circumstances, she has made a ‘mistake concerning the proper 
party's identity’ notwithstanding her knowledge of the existence of both 
 
4 Even if this mistake was unreas onable—and the Court believes it was 
in the light of the cases Defendants id entify in their objections (Dkt. 35 
at n. 3)— Krupski instructs that “the reason ableness of [plaintiff’s] 
mistake is not itself at issue.”  560 U. S. at 549.  Rather, as discussed in 
more detail below, what matters is what Defendants thought of the 
mistake. 
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parties.”)  This conclusion is also fai thful to the original purpose of Rule 
15(c)(1)(C): to “facilitate a proper deci sion on the merits” rather than to 
allow “one misstep by counsel”—su ch as “mistakenly nam[ing] [an] 
institutional [defendant] instead of individual defendants”—from 
barring an otherwise viable claim.  Woods, 996 F.2d at 882; Soto, 80 F.3d 
at 35; see Krupski, 560 U.S. at 550–51 (explaining that Rule 15(c)(1)(C)’s 
mistake provision was intended to allow plaintiffs to amend their 
complaints when they sued the incorrect government entity).  
The Court recognizes one judge in  this District and two others 
within the Eleventh Circuit have suggested a legal mistake is not a 
“mistake” under Rule 15(c).  See Scott v. Safeco Ins. Co. of Indiana, 2020 
WL 4934486 (N.D. Ga. June 24, 2020); Stewart v. Bureaus Inv. Grp., LLC, 
309 F.R.D. 654 (M.D. Ala. 2015); Nobles v. Rural Cmty. Ins. Servs ., 303 
F. Supp. 2d 1279, 1287 (M.D. Ala. 2004).  Those cases are distinguishable.  
In each, the plaintiff (a fter discovering a legal error) did not seek to 
substitute a new party in place of the initial party (as Graham does here) 
but rather to add an additional defendant after the statute of limitations 
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expired.5  The former involves no mistake regarding the “identity” of the 
proper party, while the latter does.  See In re Vitamin C Antitrust Litig., 
995 F. Supp. 2d 125, 129 (E.D.N.Y. 2014) (“As a matter of plain language, 
[Rule 15(c)(1)(C)] would appear  to include only ‘wrong party’ cases, and 
not ‘additional party’ cases. … In an “additional party” case like this one, 
there generally will be no ‘mista ke concerning’ the proper party’s 
‘identity.’ The plaintiff has sued the right defendant, and simply 
neglected to sue another defendant who might also be liable.”)  Graham’s 
mistake falls on the correct side of that distinction. 
Having decided Graham’s failure to sue Defendants at the start was 
a “mistake” covered by Rule 15(c)(1)(C ), the Court must still determine 
 
5 In Scott, the plaintiffs initially failed to sue an additional defendant 
who, under Georgia law, was necessary to obtain the relief they sought.  
2020 WL 4934486, at *1–4.  So the plaintiffs did not mistake the initially 
sued defendant as the “proper party,” but instead simply neglected to sue 
another necessary defendant.  In other words, there was no mistake 
regarding the “identity” of the proper party—just a misunderstanding of 
the law.  Similarly, in Stewart, the plaintiff sought to add a defendant 
belatedly who she did not initially sue because of a misunderstanding of 
liability under the FDCPA.  309 F.R.D. at 662.  Because this involved no 
misunderstanding of the identity of a “proper party,” the court found it 
was not a mistake under Rule 15(c).  Id.  So too in Nobles—there, the 
plaintiffs sought to add a defendant who they only realized could be liable 
after the limitations period expire d because of a “mistake in legal 
judgment.”  303 F. Supp. 2d at 1287. 
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whether Defendants “knew or should have known that the action would 
have been brought against” them but fo r that mistake.  Fed. R. Civ. P. 
15(c)(1)(C)(ii).  Defendants do not argue this aspect of Rule 15(c)(1)(C)(ii).  
Regardless, given the allegations an d relief sought in the original 
complaint—which they do not disput e they had notice of—Defendants 
knew or should have known they were the intended targets of Graham’s 
action.  As the Magistrate Judge noted, Zellars and Long—the 
individuals responsible for the adverse employment action alleged in the 
original complaint—and Keener and Dewberry—the officials currently 
holding Zellars’ and Long’s positi ons—were natural defendants for 
Graham’s claims.  (Dkt. 1 ¶ 39.)  And because counsel for Defendants 
argued the BOR was not subject to su it, counsel must have considered 
which parties could be liable for th e conduct alleged in the original 
complaint.  See Lindley v. City of Birmingham , Ala., 652 F. App’x 801, 
804 (11th Cir. 2016) (“Constructive notice satisfies Rule 15(c)’s 
requirements and can be imputed to a new defendant through her 
attorney if that attorney also repres ents the parties originally sued.”)  
Further, Defendants must have know n their omission from the original 
complaint was a “mistake” rather than a “deliberate choice” because they 
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have “articulated no strategy that [they] could reasonably have thought 
[Graham] was pursuing in suing a de fendant that was legally unable to 
provide relief.”  Krupski, 560 U.S. at 555.   
The Court concludes Graham’s “leg al mistake” in suing the BOR 
was a “mistake” under Rule 15(c)(1)(C )(ii) and Defendants knew her 
“action would have been brought against [them], but for a mistake 
concerning the proper part[ies’] id entit[ies].”  Fed. R. Civ. P. 
15(c)(1)(C)(ii).  It also agrees with and adopts the Magistrate Judge’s 
reasoning—to which Defendants do not object—regarding which 
Defendants can be sued in which ca pacities (i.e., Keen er and Dewberry 
in their official capacities and Zelle rs in his individual capacity).  
Graham’s claims may proceed against those Defendants as if they were 
timely filed.  All other claims are dismissed. 
IV. Conclusion 
The Court OVERRULES Defendants’ objections (Dkt. 35), 
ADOPTS the R&R (Dkt. 33), and GRANTS IN PART  Defendants’ 
Motion to Dismiss (Dkt. 26).   
SO ORDERED this 23rd day of March, 2026. 
 
   
1 (1 1 (1 
MICH" KEL  L.  BROWN 
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