Unpublished Dispositionhenry B. Cole, Jr., Plaintiff-appellant, v. E. Winslow Chapman, Director of City of Memphis Police; Andthree Unknown Police Officers, Defendants-appellees, 798 F.2d 468 (6th Cir. 1986)

ORDER

This case has been referred to a panel of the Court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the briefs and record, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

In this action under 42 U.S.C. § 1983, plaintiff brought suit against the Memphis police director and three unknown officers for injuries suffered during an arrest. The action was later dismissed as to director Chapman and three named police officers whom plaintiff had attempted to substitute for the unnamed officers. This Court, by order of August 15, 1984, affirmed the dismissal of Chapman but remanded the cause as to the three officers. On remand the district court was directed to make factual findings to determine if the attempted substitution of the officers' names related back to the filing of the complaint under Rule 15(c), Federal Rules of Civil Procedure. The district court found that the requirements of Rule 15(c) had not been met and once again caused the action to be dismissed. Plaintiff has appealed. On appeal the parties have briefed the issues.

Since the district court determined that the police officer defendants neither knew nor should have known, prior to the exhaustion of the statutory period, that they were the officers intended to be sued in this action and since the determination was not clearly erroneous, the judgment of the dismissal must be affirmed.