                                   Frank WAYNE, Plaintiff-Appellant,

                                                     v.

         Pat JARVIS, Sheriff, DeKalb County Sheriff Department, et al., Defendants-Appellees.

                                               No. 97-9152.

                                     United States Court of Appeals,

                                             Eleventh Circuit.

                                               Dec. 8, 1999.

Appeal from the United States District Court for the Northern District of Georgia. (No. 1:95-CV-1323-ODE),
Orinda D. Evans, Judge.

Before CARNES, Circuit Judge, HILL, Senior Circuit Judge, and HOEVELER*, Senior District Judge.

        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



   *
   Honorable William M. Hoeveler, Senior U.S. District Judge for the Southern District of Florida, sitting
by designation.
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 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 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

   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.

                                                       2
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 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, 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



  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."

                                                      3
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 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


   3
       Wayne does not appeal any of these rulings.
   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.

                                                        4
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 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. 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.").




                                                         5
        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.

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 misnomer, or 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.

                                                       6
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.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 Caribbean, 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



  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.

                                                        7
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 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?

         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



                                                      8
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.

           "[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, 137 L.Ed.2d 626 (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, 522 U.S. 1075, 118 S.Ct.

852, 139 L.Ed.2d 753 (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. Marys, 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.




                                                        9
        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 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



                                                      10
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-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 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


                                                      11
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 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.

        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.


   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.

                                                        12
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 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

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.




                                                      13
