                                                                                 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
