                 UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT

                      _______________________

                            No. 98-50454
                          Summary Calendar
                      _______________________


CHARLES DAVIS,

                                                 Plaintiff-Appellant,

                               versus

UNKNOWN DEFENDANTS AT HUGHES UNIT;
T. WORTHINGTON, Medical Doctor,

                                                Defendants-Appellees.


_________________________________________________________________

           Appeal from the United States District Court
                 for the Western District of Texas
                           (W-96-CV-429)
_________________________________________________________________

                          August 4, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.*

PER CURIAM:

          Appellant   Davis   complains   of   the    dismissal   of   his

complaint against a Hughes Unit prison doctor, T. Worthington, who

allegedly assaulted Davis while Davis was on crutches and used

excessive force against him.     The district court, approving the

recommendation of a magistrate judge, dismissed the action for

failure to state a claim and as time-barred.         Because we believe




     *
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the limitations issue to be dispositive, we do not discuss whether

Davis stated a claim for constitutional injury.

           Davis filed his complaint in September 1993 against

prison officials of the Wynne Unit of TDC.       In November, 1993,

Davis alleged in an affidavit that the Hughes Unit prison doctor,

T. Worthington had used excessive force against him.    Allegations

against Wynne Unit officials were disposed of by the district court

for the Eastern District of Texas, while Davis’s claims against

Hughes Unit officials, such as Worthington, were transferred to the

Western District of Texas.     In an amended complaint filed on

February 3, 1997, Davis finally named Worthington as a defendant

and alleged that Worthington assaulted him on July 27, 1993.

           Because the statute of limitations for section 1983

claims is two years, Davis’s complaint is time-barred unless, as he

contends, his amended complaint related back to the date of the

original complaint under Fed. R. Civ. Proc. 15(c).         Like the

district court, we find that the complaint did not relate back.

Davis’s first complaint neither named Worthington as a defendant

nor set out any claims against him.   Although Worthington was named

in an affidavit in a November 1993 pleading, this document, filed

solely at court, did not generate a summons against Worthington or

inform Worthington in any way that he had been made a party to the

lawsuit.   Rule 15(c)(3) allows an amended pleading to relate back

when, inter alia, the party brought in by the amendment received

notice of the institution of the action within a particular time,

and the party knew or should have known that, but for a mistake


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concerning identity, the action would have been brought against

that party.    As this test is not fulfilled, Davis’s amended

complaint could not relate back and cure the statute of limitations

problem concerning Dr. Worthington.

          The judgment of the district court is AFFIRMED.




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