Wayne v. Jarvis ( 1999 )


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  •                                                                                  PUBLISH
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT           FILED
    ___________________________U.S. COURT OF APPEALS
    ELEVENTH CIRCUIT
    12/08/99
    No. 97-9152
    THOMAS K. KAHN
    ___________________________                   CLERK
    D.C. Docket No. 1:95-CV-1323-ODE
    FRANK WAYNE,
    Plaintiff - Appellant,
    versus
    PAT JARVIS, Sheriff,
    DEKALB COUNTY SHERIFF
    DEPARTMENT, et al.,
    Defendants - Appellees.
    ____________________________
    Appeal from the United States District Court
    for the Northern District of Georgia
    ____________________________
    (December 8, 1999)
    Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*,
    Senior District Judge.
    __________________
    *
    Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of Florida,
    sitting by designation.
    CARNES, Circuit Judge:
    After being beaten by his fellow inmates at the DeKalb County Jail, Frank
    Wayne filed suit against: DeKalb County Sheriff Pat Jarvis in both his individual and
    official capacities; the DeKalb County Sheriff’s Department (the “Sheriff’s
    Department”); and seven “John Doe” deputy sheriffs in both their individual and
    official capacities. Pursuant to 
    42 U.S.C. § 1983
    , Wayne alleged violations of his
    Eighth and Fourteenth Amendment rights, as well as state law violations.
    By the time Wayne discovered the identity of the deputy sheriffs he wanted to
    sue, the statute of limitations had run. The district court granted Wayne’s motion to
    amend his complaint to add those deputies’ names in place of the “John Doe”
    defendants, but thereafter granted the named deputies’ motion to dismiss on statute
    of limitations grounds. Wayne contends that ruling was error, a contention that raises
    issues involving the use of “John Doe” defendants to stave off the statute of
    limitations and also involving the relation back doctrine of Federal Rule of Civil
    Procedure 15(c).
    The district court also entered summary judgment for the Sheriff’s Department
    and the Sheriff in his official capacity based upon its conclusion that Wayne had
    failed to bring forward sufficient evidence to create a genuine issue of material fact
    concerning his theory of liability that there was a custom or practice of housing
    professed homosexual, bisexual, HIV-positive, and AIDS-positive inmates in the same
    2
    dormitory regardless of their violent propensities.1 Wayne contends that he proffered
    sufficient evidence to survive summary judgment on this issue.
    Finally, the district court denied Wayne’s motion for leave of court to depose
    the classification officer who completed the form which resulted in Wayne being
    placed in the dormitory in question. Wayne contends that the testimony of that officer
    might have helped him establish the existence of a custom or policy.
    For reasons we will discuss, we affirm all three of the district court’s
    challenged rulings.
    I. BACKGROUND
    A. FACTS
    Wayne was incarcerated at the DeKalb County Jail in 1993. While he was in
    a holding cell awaiting his housing assignment, another inmate told him that he would
    be placed in Dormitory E-2-A (“E-2-A”), a medium-security dorm, if he said he was
    homosexual.       On May 19, 1993, Officer L.J. Roscoe, a classification officer,
    interviewed Wayne to determine his housing assignment. Desiring to be placed in the
    E-2-A dorm, Wayne told Officer Roscoe (falsely, he now says) that he was bisexual,
    and Officer Roscoe indicated on the inmate classification form that Wayne required
    1
    The district court also entered summary judgment for the Sheriff in his individual capacity,
    but Wayne has not appealed that part of the judgment.
    3
    special housing “due to sexual preference.” Wayne was placed in E-2-A, where he
    wanted to be.
    On June 8, 1993, Wayne was attacked by Corey Baker while both were housed
    in E-2-A. Wayne was taken to the staff nurse, who found no injuries, and was
    returned to E-2-A.      Upon his return, Wayne was attacked by four other inmates,
    including Nick Tanner and Thomas Loyal but not including Corey Baker.
    Eventually, seven deputy sheriffs arrived to break up the fight and defuse the situation
    by removing Wayne from E-2-A. When the deputy sheriffs led Wayne back into E-2-
    A to identify his attackers, Loyal began beating on Wayne again; the deputy sheriffs
    eventually regained control of the situation. Wayne alleges that these attacks caused
    continuing back and neck pain, limited his ability to work and function physically, and
    resulted in mental and emotional trauma.
    B. PROCEDURAL HISTORY
    On May 23, 1995, Wayne filed a pro se complaint against Sheriff Pat Jarvis in
    both his individual and official capacities, the DeKalb County Sheriff’s Department,
    and “Seven Unknown Deputy Sheriffs”2 in both their individual and official
    2
    Wayne used the terms “Seven Unknown Deputy Sheriffs” and “John Does” interchangeably
    throughout his complaint. For simplicity, and because it more commonly appears in the case law,
    we will hereafter use the term “John Does.”
    4
    capacities, alleging that they had violated his Eighth and Fourteenth Amendment
    rights, pursuant to 
    42 U.S.C. § 1983
    , and that they had violated state law. Because the
    assaults took place on June 8, 1993, the two-year statute of limitations for this § 1983
    claim expired on June 8, 1995. See Williams v. City of Atlanta, 
    794 F.2d 624
    , 626
    (11th Cir. 1986) (two-year statute of limitations for
    § 1983 actions originating in Georgia). Wayne moved to proceed in forma pauperis,
    which delayed service of process on the specifically identified defendants -- Sheriff
    Jarvis and the Sheriff’s Department -- until July 6, 1995. Wayne did not serve process
    on the unidentified deputy sheriffs at the same time because he did not know their
    identities.
    On August 8, 1995, Sheriff Jarvis timely filed his answer to Wayne’s first set
    of mandatory interrogatories, and that answer identified eight individual deputies as
    potential witnesses: Ricky L. Long, Shanton Benjamin Hines, Charlton L. Bivins,
    Darryl L. Tutt, Timothy F. Melton, William Winston, Jr., Kenneth Demetrius Allen,
    and Darren W. Benedict.       On September 5, 1995, Wayne moved to amend his
    complaint by adding those eight specific deputies as parties in place of the seven
    “John Doe” deputy sheriffs referred to in the original complaint. On October 27,
    5
    1995, the district court granted that motion.           By December 8, 1995, Wayne had
    served all eight of the individual deputy sheriffs with the amended complaint.
    All of the defendants moved for summary judgment. On April 12, 1996, the
    district court denied summary judgment for the deputy sheriff defendants on Wayne’s
    § 1983 claim that they failed to protect him from injury in violation of the Eighth and
    Fourteenth Amendments. In addition, the court denied the deputy sheriffs’ claim that
    they were entitled to qualified immunity on Wayne’s § 1983 claims against them in
    their individual capacities. The court did grant summary judgment for all of the
    defendants on Wayne’s claims of: (1) inadequate medical treatment; (2) failure to
    maintain an adequate racial balance in the prison; and (3) violations of state law.3
    On June 14, 1996, the individual deputy sheriff defendants moved to dismiss
    all of Wayne’s remaining claims against them because he had failed to serve them
    with the complaint or amended complaint before the statute of limitations ran. On
    December 17, 1996, the district court granted their motion to dismiss.
    The remaining defendants – Sheriff Jarvis in both his individual and official
    capacities and the Sheriff’s Department – then filed their second motion for summary
    judgment. Before the district court ruled on that motion, Wayne filed a motion for
    3
    Wayne does not appeal any of these rulings.
    6
    leave of court to depose Officer L.J. Roscoe, arguing that Roscoe, who had completed
    Wayne’s Inmate Classification Screening Form, could testify about inmate
    classification policies and procedures. On September 16, 1997, the district court
    granted summary judgment in favor of the Sheriff’s Department and Sheriff Jarvis in
    his official capacity on Wayne’s § 1983 claim, ruling that Wayne “ha[d] not presented
    sufficient evidence to establish that Defendants employed a practice or custom of
    housing professed homosexual, bisexual, and HIV and AIDS positive inmates in
    dormitory E-2-A regardless of the violent propensities of such inmates.” The district
    court also denied Wayne’s motion for leave to depose Officer Roscoe.4
    II. DISCUSSION
    Wayne puts forward three main contentions in this appeal. First, he contends
    that the district court erred in granting the deputy sheriffs’ motion to dismiss, because
    under Federal Rule of Civil Procedure 15(c) his amended complaint should be held
    to relate back to his original complaint, which had been filed within the statute of
    limitations. Second, Wayne contends that the district court erred in granting summary
    judgment in favor of Sheriff Jarvis in his official capacity and in favor of the Sheriff’s
    Department, because he raised a genuine issue of material fact as to whether they had
    4
    As noted above, see note 1 supra, the court also granted summary judgment in favor of
    Sheriff Jarvis in his individual capacity. Wayne does not appeal that ruling.
    7
    a practice or custom of housing professed homosexual, bisexual, HIV-positive, and
    AIDS-positive inmates in the same dormitory regardless of their propensity for
    violence. Third, Wayne contends that the district court erred in denying him leave to
    depose Officer Roscoe on the custom or policy issue before it ruled on the summary
    judgment motion. We address each contention in turn.
    A. DID THE DISTRICT COURT ERR IN GRANTING THE MOTION TO
    DISMISS FILED BY THE DEPUTY SHERIFFS?
    The district court dismissed Wayne’s claims against the individual deputy
    sheriffs because it concluded that his amended complaint, which he filed after the
    statute of limitations had expired, did not relate back to his original complaint under
    Federal Rule of Civil Procedure 15(c). We review the district court’s application of
    Rule 15(c) for an abuse of discretion. See Andrews v. Lakeshore Rehabilitation
    Hosp., 
    140 F.3d 1405
    , 1409 n.6 (11th Cir. 1998). We find none here.
    More than three months after filing his initial complaint, and almost three
    months after the expiration of the statute of limitations, Wayne filed a motion to
    amend his initial complaint by replacing the seven “John Doe” deputy sheriffs with
    the eight specifically-named deputy sheriffs. We agree with the district court’s
    conclusion that Wayne’s amendment to replace the “John Does” with specifically-
    named defendants constitutes a change in the parties sued.            See Barrow v.
    8
    Wethersfield Police Dep’t, 
    66 F.3d 466
    , 468 (2d Cir. 1995) (“We have stated that it
    is familiar law that ‘John Doe’ pleadings cannot be used to circumvent statutes of
    limitations because replacing a ‘John Doe’ with a named party in effect constitutes a
    change in the party sued.”) (quotations and citation omitted), modified, 
    74 F.3d 1366
    (2d Cir. 1996); Cox v. Treadway, 
    75 F.3d 230
    , 240 (6th Cir. 1996) (“Substituting a
    named defendant for a ‘John Doe’ defendant is considered a change in parties, not a
    mere substitution of parties.”).
    Because Wayne changed the parties being sued after the statute of limitations
    had expired, his claim against the belatedly-named deputy sheriffs is barred unless he
    can demonstrate that under Rule 15(c) the amended complaint naming them relates
    back to the original complaint, which was filed just before the statute ran. The part
    of Rule 15(c) upon which Wayne relies states:
    Relation Back of Amendments. An amendment of a pleading relates
    back to the date of the original pleading when
    (3) the amendment changes the party or the naming of the party against
    whom a claim is asserted if the foregoing provision (2) is satisfied and,
    within the period provided by Rule 4(m) for service of the summons and
    complaint, the party to be brought in by amendment (A) has received
    such notice of the institution of the action that the party will not be
    prejudiced in maintaining a defense on the merits, and (B) knew or
    should have known that, but for a mistake concerning the identity of the
    proper party, the action would have been brought against the party.
    9
    Fed R. Civ. P. 15(c)(3) (emphasis added). The district court ruled that Wayne’s lack
    of knowledge regarding the identities of the deputy sheriff defendants did not
    constitute a “mistake concerning the identity of the proper party” for the purposes of
    Rule 15(c)(3)(B), and therefore that his amended complaint did not relate back.
    Wayne argues that his lack of knowledge is the equivalent of a “mistake” and
    therefore satisfies the Rule 15(c)(3)(B) requirement.
    We agree with the district court that Wayne’s lack of knowledge regarding the
    identities of the deputy sheriffs was not “a mistake concerning the identity of the
    proper party.”5 The drafters of Rule 15(c)(3) included the mistake proviso, as the
    commentary explains, in order to resolve “the problem of a misnamed defendant” and
    allow a party “to correct a formal defect such as a misnomer or misidentification.”
    Fed R. Civ. P. 15(c)(3), Advisory Committee Notes to 1991 Amendment. As the
    Second Circuit observed, “[t]his commentary implies that the rule is meant to allow
    an amendment changing the name of a party to relate back to the original complaint
    only if the change is the result of an error, such as a misnomer or misidentification.”
    Barrow, 
    66 F.3d at 469
    . Because Wayne’s lack of knowledge was not an error, a
    5
    We discuss only the mistake requirement of Rule 15(c)(3), because where that showing is
    not made there can be no relation back regardless of whether other requirements, such as notice and
    lack of prejudice to the joined party, are met.
    10
    misnomer, or a misidentification, his amendment does not come within Rule
    15(c)(3)(B). While we have stated that “we read the word ‘mistake’ in Rule 15(c)
    liberally,” Itel Capital Corp. v. Cups Coal Co., 
    707 F.2d 1253
    , 1258 n.9 (11th Cir.
    1983), we do not read the word “mistake” to mean “lack of knowledge.” For these
    purposes, ignorance does not equate to misnomer or misidentification.
    Our interpretation of the rule is consistent with the decisions of four other
    circuits which have held that an amended complaint replacing a “John Doe” defendant
    with that defendant’s correct name does not relate back under Rule 15(c)(3). See
    Barrow v. Wethersfield Police Dep’t, 
    66 F.3d 466
    , 470 (2d Cir. 1995) (“His amended
    complaint . . . did not correct a mistake in the original complaint, but instead supplied
    information Barrow lacked at the outset. Since the new names were added not to
    correct a mistake but to correct a lack of knowledge, the requirements of Rule 15(c)
    for relation back are not met.”), modified, 
    74 F.3d 1366
     (2d Cir. 1996); Jacobsen v.
    Osborne, 
    133 F.3d 315
    , 321 (5th Cir. 1998) (“[F]or a ‘John Doe’ defendant, there was
    no mistake in identifying the correct defendant; rather, the problem was not being able
    to identify that defendant”); Cox v. Treadway, 
    75 F.3d 230
    , 240 (6th Cir. 1996)
    (changing “John Doe” to named party did not “satisfy the ‘mistaken identity’
    requirement of Rule 15(c)(3)(B)”); Worthington v. Wilson, 
    8 F.3d 1253
    , 1257 (7th Cir.
    11
    1993) (“Because Worthington’s failure to name Wilson and Wall was due to a lack
    of knowledge as to their identity, and not a mistake in their names, Worthington was
    prevented from availing himself of the relation back doctrine of Rule 15(c).”).6 But
    see Varlack v. SWC Carribean, Inc., 
    550 F.2d 171
    , 174-75 (3d Cir. 1977) (implicitly
    holding in a “John Doe” caption case that lack of knowledge of identity satisfies the
    mistake requirement of Rule 15(c)).
    Wayne contends that a different application of the relation back rule should
    apply to him because he filed the complaint as a pro se litigant, and the complaints of
    pro se litigants should be liberally construed. See Powell v. Lennon, 
    914 F.2d 1459
    ,
    1463 (11th Cir. 1990) (“In the case of a pro se action, moreover, the court should
    construe the complaint more liberally than it would formal pleadings drafted by
    lawyers.”). But the problem here is not one of construction; instead, the problem is
    one of lack of compliance with a deadline imposed by law. Liberal construction does
    not mean liberal deadlines. See Garvey v. Vaughn, 
    993 F.2d 776
    , 780 (11th Cir.
    1993) (noting that Supreme Court decision at issue had not “create[d] an exception for
    a pro se inmate to evade time requirements.”). In this case, Wayne’s problem was not
    6
    Our decision in Itel Capital Corp. v. Cups Coal Co., 
    707 F.2d 1253
     (11th Cir. 1983), is not
    to the contrary. That case did not involve “John Doe” defendants or lack of knowledge on the
    plaintiff’s part as to the identity of the defendant it wished to sue. See 
    id. at 1256-58
    .
    12
    that he drafted his complaint without a lawyer, but that he drafted and filed it close to
    the expiration of the statute of limitations and thereby waited too long before setting
    about to find crucial information he needed to make his claim against the deputies.
    Wayne bears the consequences of his own delay. Had he filed earlier, he could have
    learned the deputy sheriffs’ identities in time to amend his complaint before the statute
    of limitations ran.
    Finally, Wayne argues that the district court should have equitably tolled the
    statute of limitations, because the other defendants prevented him from learning the
    identities of the deputy sheriffs before the statute had expired. The facts disprove this
    argument. Wayne filed his complaint on May 23, 1995, and the statute of limitations
    expired on June 8, 1995, just sixteen days later. Wayne did not serve the complaint
    on any of the defendants until July 6. Therefore, it was not the actions of the other
    defendants that prevented Wayne from learning the identities of the deputy sheriffs
    until it was too late. It was Wayne’s own dilatoriness. Accordingly, the district court
    did not err in granting the deputy sheriffs’ motion to dismiss.
    B. DID THE DISTRICT COURT ERR IN GRANTING SUMMARY
    JUDGMENT IN FAVOR OF SHERIFF JARVIS IN HIS OFFICIAL
    CAPACITY AND IN FAVOR OF THE SHERIFF’S DEPARTMENT?
    13
    The district court granted summary judgment in favor of Sheriff Jarvis in his
    official capacity and in favor of the Sheriff’s Department on Wayne’s claim that his
    injuries were caused by their custom or policy of housing professed homosexual,
    bisexual, HIV-positive, and AIDS-positive inmates in dormitory E-2-A regardless of
    the inmates’ propensity for violence. Although Wayne did not sue DeKalb County
    itself, his claim against Sheriff Jarvis in his official capacity is a claim against DeKalb
    County (“the County”). See Pompey v. Broward County, 
    95 F.3d 1543
    , 1545-46 n.2
    (11th Cir. 1996) (construing official capacity claims as claims against county). His
    claim against the Sheriff’s Department, on the other hand, should have been dismissed
    by the district court irrespective of its merits. The district court noted that “under
    Georgia law, the DeKalb County Sheriff’s Department is not a legal entity that can be
    sued apart from the County.” Regardless of whether that is correct, because Wayne’s
    official capacity claim against Jarvis is a claim against the County, his claim against
    the Sheriff’s Department of the County is redundant. See Dean v. Barber, 
    951 F.2d 1210
    , 1214-15 (11th Cir. 1992) (dismissing claim against sheriff’s department where
    department was not subject to suit). We now proceed to address the merits of the
    district court’s grant of summary judgment in favor of the County, which was properly
    sued in this case through the official capacity claim against the Sheriff.
    14
    “[A] plaintiff seeking to impose liability on a municipality under § 1983 [must]
    identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Board of
    County Comm’rs v. Brown, 
    520 U.S. 397
    , 403, 
    117 S. Ct. 1382
    , 1388 (1997). “A
    policy is a decision that is officially adopted by the municipality, or created by an
    official of such rank that he or she could be said to be acting on behalf of the
    municipality. . . . A custom is a practice that is so settled and permanent that it takes
    on the force of law.” Sewell v. Town of Lake Hamilton, 
    117 F.3d 488
    , 489 (11th Cir.
    1997), cert. denied, 
    118 S. Ct. 852
     (1998). We have emphasized that:
    [t]o establish a policy or custom, it is generally necessary to show a
    persistent and wide-spread practice. Moreover, actual or constructive
    knowledge of such customs must be attributed to the governing body of
    the municipality.
    Depew v. City of St. Mary’s, 
    787 F.2d 1496
    , 1499 (11th Cir. 1986); see also Church
    v. City of Huntsville, 
    30 F.3d 1332
    , 1345 (11th Cir. 1994). Wayne alleges that the
    County had a policy or custom of housing professed homosexual, bisexual, HIV-
    positive, and AIDS-positive inmates in E-2-A without regard to the violent
    propensities of those inmates. We agree with the district court that Wayne failed to
    proffer sufficient evidence to raise a genuine issue of material fact as to the existence
    of such a policy or custom.
    15
    First, Wayne failed to identify a single inmate who: (1) was placed in E-2-A,
    a medium-security setting, because he professed that he was homosexual, bisexual,
    HIV-positive, or AIDS-positive; and (2) should have been placed in a higher-security
    setting because of his propensity for violence. Wayne points to two of the inmates
    who attacked him -- Nick Tanner and Thomas Loyal -- but neither satisfies both of the
    above criteria. Although Wayne did produce evidence that Nick Tanner had been
    classified as a close-security to maximum-security risk, he did not produce any
    evidence indicating that Tanner had been placed in E-2-A because he professed to be
    homosexual, bisexual, HIV-positive, or AIDS-positive.
    As for Thomas Loyal, Wayne demonstrated that, at least initially, Loyal was
    moved to E-2-A because he told a classification officer that he was homosexual. But
    Loyal’s initial classification form indicates that he was a medium-security risk and
    hence appropriately placed in E-2-A, a medium-security dorm. Nevertheless, Wayne
    argues that Loyal should have been placed in a higher-security setting because Loyal
    was involved in four violent incidents, three of which took place in E-2-A, in less than
    two years. But Loyal’s inmate classification form indicates that he was removed from
    E-2-A after two of the violent incidents. Instead of demonstrating that jail officials
    were placing inmates in E-2-A without regard to their violent propensities, Loyal’s
    16
    classification form indicates that officials transferred inmates out of E-2-A, at least
    temporarily, in response to violent episodes. We have stated that “[n]ormally random
    acts or isolated incidents are insufficient to establish a custom or policy.” Depew, 
    787 F.2d at 1499
    . To the degree that Wayne’s argument focuses on the specific decision
    of jail officials to leave Loyal in E-2-A or to transfer him back to E-2-A after he had
    been removed, that single decision, even if erroneous, would not support the inference
    that the County had a custom or policy of placing inmates in E-2-A without regard to
    their violent propensities. See Church, 
    30 F.3d at 1346
     (isolated incidents not enough
    to demonstrate “pervasive practice of constitutional violations”).
    Another aspect of Wayne’s failure to create a genuine issue of material fact
    about a custom or policy is that he did not produce any evidence that only professed
    homosexual, bisexual, HIV-positive, and AIDS-positive inmates were placed in E-2-
    A. To the contrary, the evidence in the record indicates Robert Melton, the Jail
    Commander in 1993, testified at his deposition: “I don’t think they were just
    specifically those types of prisoners but, yes, it could have been that those types of
    prisoners could have been housed there.” Ricky Long, a jail supervisor in 1993,
    testified at his deposition that known homosexuals were placed in E-2-A, which was
    considered a special needs cell, but that mentally-ill inmates also were placed in E-2-
    17
    A. Loyal’s inmate classification form indicates that Loyal was returned to E-2-A at
    one point because he was on a “suicide watch,” an entry demonstrating that inmates
    were placed in E-2-A not just because they professed to be homosexual, bisexual,
    HIV-positive, or AIDS-positive, but also because they had other special needs, such
    as those associated with being a suicide risk.
    Wayne has failed to satisfy his burden of proffering sufficient evidence to allow
    a reasonable jury to conclude that the County had a custom or policy of housing
    professed homosexual, bisexual, HIV-positive, and AIDS-positive inmates in E-2-A
    without regard to their violent propensities. Accordingly, we affirm the district
    court’s grant of summary judgment in favor of the County.
    C. DID THE DISTRICT COURT ERR IN DENYING WAYNE’S
    MOTION TO DEPOSE OFFICER ROSCOE?
    Finally, Wayne argues that the district court erred in denying his motion for
    leave to depose Officer Roscoe, the classification officer who completed his inmate
    classification form. The district court reasoned that “because Plaintiff has already
    deposed [Sheriff] Jarvis, and R. Wayne Melton, the individual responsible for drafting
    the classification policy, allowing Plaintiff to depose Officer Roscoe would merely
    serve to prolong this case unnecessarily.” We review a district court’s discovery
    18
    rulings for an abuse of discretion. See Benson v. Tocco, Inc., 
    113 F.3d 1203
    , 1208
    (11th Cir. 1997). We find none here.
    Relevant to our resolution of this issue is the lateness of Wayne’s request. In
    August 1995, the defendants listed “Classification Officer Roscoe” as a potential
    witness in their answer to Wayne’s mandatory interrogatories; Officer Roscoe was the
    only classification officer listed. Wayne, however, failed to depose Officer Roscoe
    during the initial discovery period, which ended on January 7, 1997. Wayne’s
    explanation for that failure is that he allegedly did not learn that Officer Roscoe was
    his classification officer until January 27, 1997, when the defendants submitted
    Wayne’s inmate classification form, which lists Officer Roscoe as his classification
    officer, as an exhibit in support of their motion for summary judgment. Even
    assuming Wayne did not learn that Officer Roscoe was his classification officer until
    Wayne saw the inmate classification form in January 1997, Wayne still did not
    promptly seek to depose Roscoe at that time. Instead, Wayne waited six more months
    and made his request in July 1997, during a period in which the district court had
    reopened discovery for the limited purposes of allowing Wayne to conduct additional
    depositions of Officers Bivins and Long and allowing the defendants to comply with
    Wayne’s motion to compel production of documents. Given the untimely nature of
    19
    Wayne’s request, we cannot say that the district court abused its discretion in refusing
    to expand the limited scope of the reopened discovery period.
    III. CONCLUSION
    AFFIRMED.
    20
    HOEVELER, Senior District Judge, concurring, dubitante:
    I agree with the well developed opinion of the majority with one exception. As
    I read Rule 15(c)(3), its emphasis is on the potential prejudice to a newly named
    defendant -- both subparts (c)(3)(A) and (c)(3)(B) address the new defendant’s
    “notice” and whether that defendant “knew or should have known” that the action
    would have been brought against him but for a “mistake” concerning the identity of
    the proper party.
    The weight of the law as reflected in several other circuits1 seems to be that a
    determination as to whether a “mistake” occurred is a prerequisite to permitting
    relation back of an amendment. In those circuits, the test is straightforward: if
    plaintiff lists a “John Doe” defendant, it is due to a lack of knowledge -- not a mistake
    -- and therefore does not qualify under Rule 15(c)(3).2 Our case is presented
    somewhat differently. Wayne’s original pro se complaint included information about
    the “seven unknown deputy sheriffs” he listed as defendants, with a description of
    their specific actions or locations and the time and date of the incident. So we can
    1
    But see Varlack v. SWC Caribbean, Inc., 
    550 F.2d 171
    , 174-75 (3d Cir. 1977).
    2
    We suggest, in Itel Capital Corp. v. Cups Coal Co., 
    707 F.2d 1253
    , 1258 n.9 (11th Cir.
    1983), that the word “mistake” should be construed liberally. I take that to mean that the concept
    “mistake” may be flexible depending upon the circumstances. In Itel it is clear a “new” party was
    added as a defendant but his addition was permitted because he had clear notice and suffered no
    prejudice by the addition.
    21
    presume that the deputies probably had notice and that no prejudice would be
    involved -- or, at least, that factual inquiry may have established this. I wonder if in
    the case before us the question of prejudice and notice should be given greater weight
    than in the case where a plaintiff lacks substantial information as to the right parties
    to sue. While in the latter case, the weight given to the “mistake” determination is
    justified; in our case -- and others like it, in which a plaintiff has used improper
    names, but nevertheless reasonably identified the defendants, the emphasis should, I
    submit, be placed on notice and prejudice to the defendants. An adherence to a
    narrow interpretation of the term “mistake” seems misplaced.
    Consistent with liberal pleading requirements, an imprecise naming of a
    defendant does not in all cases prohibit relation back. It seems peculiar to permit
    relation back when a plaintiff is so lacking in knowledge that he sues the wrong entity
    or doesn’t sue all possible defendants, but not to permit relation back when a plaintiff
    gets the entities right, but doesn’t completely name them. I would have preferred that
    a finding have been made below regarding the notice or potential prejudice to the
    deputy sheriffs.   Indeed a factual inquiry in the district court may well have
    established that based on the notice to the defendants in question and the lack of
    prejudice, they were -- in fact -- “before the court” and that the amendment was
    22
    merely to change the name under which they were sued. Powers v. Graff, 
    148 F.3d 1223
    , 1226 (11th Cir. 1998) (citing Worthington v. Wilson, 
    8 F.3d 1253
    , 1256 (7th Cir.
    1993)). While I concur in the result reached by the majority I am moved to suggest,
    as I have, that in the future a broader treatment of the rule may be in order.
    23
    

Document Info

Docket Number: 97-9152

Filed Date: 12/8/1999

Precedential Status: Precedential

Modified Date: 3/3/2020

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