           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                        December 28, 2007

                                     No. 06-20257                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk




GARLAND MICHAEL GREEN,

                                                  Plaintiff-Appellant,
v.

JOHN DOE; P.A. HUFF; NURSE PARKER,

                                                  Defendants-Appellees.




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                 No. 4:02-CV-2678




Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*


       Garland Green filed this 42 U.S.C. § 1983 action in July 2002, claiming an
unidentified correctional officer had violated his Eighth Amendment rights. The


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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district court dismissed in December 2005, concluding that, even if Green were
able to identify the defendant and successfully amended his complaint with de-
fendant’s actual name, the amended complaint would not relate back to his origi-
nal complaint under Federal Rule of Civil Procedure 15(c); thus, the amended
complaint would be time-barred by the applicable two-year statute of limitations.
      Because there was specific information that should have made the identifi-
cation of “John Doe” relatively easy, yet the district court denied Green’s re-
quests to conduct discovery before limitations had run, limitations has been
equitably tolled. We affirm in part, reverse in part, and remand. Whether
Green is able to amend his original complaint is for the district court to decide
in accordance with rule 15(a).


                                         I.
      Green alleges that in June 2001, while he was incarcerated at the Goree
Unit, an unidentified correctional officer ordered him to move a mattress despite
Green’s protestations that he was medically restricted from performing the task.
Green claims that while moving the mattress he suffered a herniated disk. In
July 2002, he sued under § 1983, alleging the officer had violated his constitu-
tional rights by deliberately failing to consult his medical records before ordering
him to lift the mattress. Because Green did not know the officer’s name, he sued
“John Doe.”
      In August 2002 and January 2003, Green filed motions for discovery to
identify the officer. The district court denied both motions and dismissed the
case as frivolous in February 2003. Green appealed, and this court remanded
because the record had not been sufficiently developed, rendering the dismissal
premature.
      On remand, and following a hearing conducted under Spears v. McCotter,
766 F.2d 179 (5th Cir. 1985), and Cay v. Estelle, 789 F.2d 318 (5th Cir. 1986), the

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district court ordered the state to give the court the name of the officer assigned
to the area where Green was housed on the date of the alleged incident. There
was some confusion over where exactly in the unit Green was housed, so the
state provided a shift roster for the date in question. To assist it in identifying
the officer, the district court directed Green to answer interrogatories regarding
the identity of the officer. The court then ordered the state to provide the names
of the officers assigned, on the evening in question, to the housing area Green
had described in his response to the interrogatories.
      The state submitted a list of names that was filed under seal and not made
available to Green; the state advised that, of the officers assigned to the housing
area Green had described, none fit Green’s description. One of the officers
matched Green’s description of age and race but not his description of height and
weight.
      The court then concluded that, even if Green were able to identify the cor-
rect officer, Federal Rule of Civil Procedure 15(c) would not permit him to amend
his complaint and relate back to the original complaint. Because any new com-
plaint he might bring would be time-barred, the court dismissed the claims
against “John Doe.”


                                        II.
      We review the denial of a motion to amend for abuse of discretion. Moody
v. FMC Corp., 995 F.2d 63, 65 (5th Cir. 1993). That discretion, however, is limit-
ed by rule 15(a), which requires that “leave shall be freely given when justice so
requires.” Jacobsen v. Osborne, 133 F.3d 315, 318 (5th Cir. 1998). Whether such
an amendment relates back to the date of the original pleading is governed by
rule 15(c). An amendment naming a different defendant will relate back if the
claim asserted arose out of the same conduct set forth in the original pleading
and the new defendant, within the time provided by Federal Rule of Civil Proce-

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dure 4(m), received notice of the filing of the original action so that he would not
be prejudiced in presenting a defense on the merits, and the new defendant
“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 [new] party.”
Rule 15(c)(3).
      We conclude that Green does not need his amendment to relate back under
rule 15(c)(3), because limitations has been equitably tolled by the abuse of dis-
cretion in denying his original motions for discovery. Thus, strict application of
limitations would be inequitable, because the delay in determining the identity
of “John Doe” is not attributable to Green. “The doctrine of equitable tolling pre-
serves a plaintiff’s claims when strict application of the statute of limitations
would be inequitable.” Lambert v. United States, 44 F.3d 296, 298 (5th Cir.
1995) (citing Burnett v. N.Y. Cent. R.R., 380 U.S. 424, 428 (1965)).
      Green filed motions for discovery twice before limitations expired. The dis-
trict court denied both motions and subsequently dismissed the case as frivolous.
Green appealed the dismissal to this court and raised the issue of the denial of
discovery. We reversed and remanded for further development of the record.
      The district court followed our order and held a Spears hearing at which
the issue of the identity of “John Doe” was raised. Following the hearing, the
court attempted to facilitate the discovery of the identity of “John Doe” by order-
ing the state and Green to provide additional information. After this back-and-
forth, the state identified one black male officer on duty at the time and place in-
dicated by Green.
      This information could have been discovered if Green’s initial motions for
discovery had been granted. They were denied, he appealed the denials, and he
won on appeal. There is nothing more he could have done to determine the iden-
tity of “John Doe” within the period of limitations.
      To deny Green the opportunity to amend his complaint where he has dili-

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gently sought to discover the identity of “John Doe” would be tantamount to
eliminating the use of a “John Doe” in bringing any suit. The only reason to sue
a “John Doe” is to conduct discovery backed by the authority of the court, but
where the amendment cannot relate back and the court incorrectly denies dis-
covery, the “John Doe” has become a nullity. Although the use of a “John Doe”
is disfavored, it serves the legitimate function of giving a plaintiff the opportu-
nity to identify, through discovery, unknown defendants. See Colle v. Brazos
County, Tex., 981 F.2d 237, 243 n.20 (5th Cir. 1993).
         Thus, although the district court correctly notes that in Jacobsen, 133 F.3d
at 321, we held that rule 15(c)(3) did not allow an amendment to replace a “John
Doe” because the plaintiff had not made a “mistake concerning the proper iden-
tity,” but rather “lacked knowledge of the proper party,” the instant case is dif-
ferent. In Jacobsen, there was no justification for equitable tolling; the delays
that plagued the case were the fault of the plaintiff; the defendants sought to
move discovery forward Id. Plaintiff had the assistance of discovery but failed
to take advantage of that power and depose witnesses in a timely manner that
would have allowed him to identify the “John Doe” and amend his complaint.
Id. at 317-18. Green, in contrast, sued almost eleven months before the running
of the statute and, given the specificity of knowledge he had, if he had not been
denied discovery he would have had sufficient time to identify the officer and
amend his complaint under rule 15(a) without need to relate back under rule
15(c).
         Finally, because the Texas statute of limitations is borrowed in § 1983 cas-
es, this court also looks to Texas’s equitable tolling principles. See Rotella v.
Pederson, 144 F.3d 892, 897 (5th Cir. 1998). Texas permits the tolling of limita-
tions where a plaintiff’s legal remedies are precluded by the pendency of other
legal proceedings. See Holmes v. Tex. A&M Univ., 145 F.3d 681, 684-85 (5th Cir.
1998). Green’s legal remedy was precluded by the erroneous denial of discovery

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and the subsequent dismissal of his suit as frivolous and by the refusal to pro-
vide the name of the officer ultimately identified by the state. Though the legal
proceedings following the erroneous denial of discovery are not technically pen-
dent proceedings, they are other proceedings that have precluded Green’s pur-
suit of his claimed legal remedy.


                                        III.
      Green included state law claims against Physician Assistant Huff and
Nurse Parker. When the district court dismissed the § 1983 claim against “John
Doe,” it declined to exercise supplemental jurisdiction over Green’s claims based
on state law. Green did not assert in his original brief to this court that the
court had erred in refusing to maintain jurisdiction over his state law claims af-
ter it dismissed his § 1983 claim. Though we liberally construe the briefs of pro
se litigants, failure to brief an argument is abandonment. Yohey v. Collins, 985
F.2d 222, 224-25 (5th Cir. 1993). Thus, Green has abandoned this argument,
and the decision not to exercise supplemental jurisdiction is affirmed.
      The judgment is AFFIRMED in part and REVERSED in part, and this
matter is REMANDED for further proceedings as needed. We express no view
on whether the underlying claim is frivolous, on whether Green should be al-
lowed to amend, or on any other questions that may arise.




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