UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-50454
Summary Calendar
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CHARLES DAVIS,
Plaintiff-Appellant,
versus
UNKNOWN DEFENDANTS AT HUGHES UNIT;
T. WORTHINGTON, Medical Doctor,
Defendants-Appellees.
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Appeal from the United States District Court
for the Western District of Texas
(W-96-CV-429)
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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this opinion should not be published and is not precedent except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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