Following his conviction in Texas state court, Ray Franklin Moore filed suit against his trial counsel, apparently alleging ineffective assistance. A Dallas County District Court granted summary judgment against Moore. Subsequently, Moore filed a notice of appeal with Dallas County District Court Clerk Bill Long, requesting permission to proceed in forma pauperis. When Long challenged Moore's request, a hearing on the issue was set for March 20, 1987. Moore, however, failed to timely file material that would substantiate his claim for in forma pauperis status. Although the record does not indicate the outcome of the hearing, it appears that the court ruled against Moore. After several unsuccessful attempts to secure a writ of mandamus from the Texas Court of Appeals and the Texas Supreme Court, Moore filed a section 1983 action against Long in federal district court. Moore complained that Long's failure properly to exercise his authority deprived Moore of an opportunity to pursue an appeal on his ineffective-assistance action. The district court, acting on a magistrate's recommendations, dismissed the action with prejudice for failure to state a claim.
On appeal we noted that the "interests of justice require us to construe initial complaints by pro se litigants liberally." Moore v. Long, No. 88-1621, unpublished op. at 3 (5th Cir. Nov. 29, 1988) [862 F.2d 873 (table)]. We concluded that the district court had prematurely dismissed Moore's action. We also held, however, that Moore had failed to allege specific facts indicating that Long had acted improperly, and we remanded the action for Moore to amend his complaint. Id. at 5 [862 F.2d 873 (table)].
On May 22, 1990, Moore filed an amended complaint naming an additional defendant, W.H. Kenny, a deputy clerk in the Dallas County Clerk's Office. Moore charged that Kenny had willfully failed to notify him that Long had challenged his application for pauper status. In addition, Moore charged that Kenny had failed to notify him of the state court's resolution of the ineffective-assistance claim in sufficient time for Moore to file a timely appeal. The sole allegation against Long in the amended complaint was that Long had breached his duty to supervise and control Kenny.
On this appeal Moore argues that the amended complaint should relate back to the date of the original filing of his complaint against Long. Federal Rule of Civil Procedure 15(c) permits an amended complaint to relate back to the date of the original complaint under certain specified circumstances:
This provision governs amendments that add as well as those that substitute a party to a lawsuit.
In Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379, 91 L.Ed.2d 18 (1986), the Supreme Court analyzed the circumstances that support relation back under Rule 15(c). The Court posited four requirements for relation back:
Id. at 29, 106 S.Ct. at 2384. All four requirements must be satisfied for an amendment to relate back to the date of the original complaint.
The sole question in this case is whether Moore's amended complaint satisfies the Schiavone factors. The parties do not dispute the following dates: Moore's cause of action accrued on August 31, 1987; Moore filed his original complaint on November 18, 1987; and Moore filed his amended complaint on May 22, 1990. Since it is undisputed that the first factor has been met, only the last three factors are at issue. We are persuaded that Moore failed to satisfy these factors. The record indicates that Kenny received no notice until the filing of Moore's amended complaint, which occurred well over two years after the cause of action would have accrued. In cases in which the added or substituted defendant has not received timely notice, we have routinely refused to permit relation back. See, e.g., Brown v. Department of Army, 854 F.2d 77, 79 (5th Cir.1988); Lamb v. United States Postal Service, 852 F.2d 845, 847 (5th Cir.1988); Harris v. United States Dep't of Transp., 843 F.2d 219, 221 (5th Cir.1988).
In the case before us, however, Moore offers nothing to suggest, nor does he even allege, that Kenny and Long shared counsel either before or during the two-year limitations period. Rather he argues that the court should construe his original complaint liberally to include a general section-1983 allegation against all who worked in the Office of the Clerk of the Dallas County District Courts. Such a broad allegation would presumably include Kenny, who is a deputy clerk in that office. However, given the size of the Dallas County Clerk's Office and given the vague nature of the offense alleged, we conclude that it would be improper to impute to Kenny the sort of notice that is required under Schiavone.
The district court's judgment dismissing Moore's amended complaint is AFFIRMED.