Fleming v. Magnusson

Opinion

USCA1 Opinion

April 25, 1995
                                [NOT FOR PUBLICATION]

                            UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ____________________

No. 94-2148

                                DAVID GORDON FLEMING,

                                Plaintiff, Appellant,

                                          v.

                              MARTIN MAGNUSSON, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. Morton A. Brody, U.S. District Judge]
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                                 ____________________

                                        Before

                                Torruella, Chief Judge,
                                           ___________
                            Cyr and Stahl, Circuit Judges.
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                                 ____________________

            David Gordon Fleming on brief pro se.
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            Andrew  Ketterer,  Attorney General,  and  Diane  Sleek, Assistant
            ________________                           ____________
        Attorney General, on brief for appellee.

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____________________

Per  Curiam.   Plaintiff David  Gordon Fleming,  a Maine
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            inmate,  appeals pro  se from  a judgment  against him  in an
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            action  brought  pursuant  to 42  U.S.C.     1983.   For  the

            following reasons, we affirm.

                                      BACKGROUND

                 On April 28, 1994, Fleming filed a complaint in district

            court against fifteen named prison officials alleging various

            violations  of his constitutional  rights.  That  same day, a

            magistrate  judge ("magistrate")  granted his  application to

            proceed  in  forma pauperis  ("IFP").   On  May 2,  1994, the
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            magistrate recommended  that the  complaint  be dismissed  as

            frivolous  under 28 U.S.C.   1915(d).   On June 15, 1994, the

            district judge  reviewed the matter de novo  and ordered that
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            the complaint  be dismissed  with the exception  of Fleming's

            claim that he was not provided with a copy of the Maine State

            Prison's  rules  and  regulations  prior  to  a  disciplinary

            proceeding brought against him.

                 On August  12, 1994,  Fleming made  service  by mail  on

            defendants   Commissioner   Donald   Allen,   Warden   Martin

            Magnusson, and  Deputy Warden  Nelson Riley.   On August  30,

            1994, the district  court sua sponte ordered  Fleming to show
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            cause why he  had not  made timely service  on the  remaining

            twelve defendants.  See Fed. R. Civ. P. 4(m).   After Fleming
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            responded that it was his belief that the unserved defendants

            were  not  implicated  in   the  sole  surviving  claim,  the



complaint  was  dismissed  without  prejudice   as  to  these

            defendants.

                 On August 31, 1994, the  three served defendants filed a

            motion to dismiss for failure to state a claim.   Fleming did

            not file an objection to this motion.  On September 14, 1994,

            however,  Fleming  filed  a   motion  seeking  leave  to  add

            additional defendants to  the complaint.  On October 6, 1994,

            the  magistrate recommended  that  the motion  to dismiss  be

            allowed  pursuant to  Local Rule  19(c) of the  United States

            District Court for the District of  Maine which provides that

            "[u]nless with ten (10) days after the filing of a motion the

            opposing  party files written objection  thereto . .  . , the

            opposing  party shall  be deemed  to have  waived objection."

            The magistrate  further recommended  that the  motion seeking

            leave to add  additional defendants  be denied as  moot.   On

            October  24, 1994, the district  judge reviewed the matter de
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            novo and adopted the magistrate's recommendations.   Judgment
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            entered, and this appeal followed.

                                      DISCUSSION

                 Fleming argues  that the complaint should  not have been

            dismissed with respect to the unserved defendants for failure

            to effect timely service.  He does not deny that he failed to

            serve these defendants within the  120 day period provided by

            Fed. R. Civ. P. 4(m).  However,  he contends that as a pro se
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            defendant, he  should  not  have been  held  to  the  "strict

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letter"  of the rule.  He  also suggests that, pursuant to 28

            U.S.C.    1915(c), it  was not his  responsibility to  effect

            service.       Flemings' pro se status does not insulate  him
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            from compliance  with the  Federal Rules of  Civil Procedure.

            FDIC  v. Anchor Properties, 13  F.3d 27, 31  (1st Cir. 1994).
            ____     _________________

            Section 1915(c) does provide that where, as here, a plaintiff

            is proceeding IFP, "the officers of the court shall issue and

            serve all process."  However,  an IFP plaintiff must  request

            that the court officer serve his complaint before the officer

            will be responsible for such service.   Boudette v. Barnette,
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            923 F.2d  754, 757 (9th Cir.  1991).  Fleming did  not allege

            below  that he  made  such a  request.   On the  contrary, he

            indicated  that  he had  chosen  not to  proceed  against the

            unserved defendants.   Under the circumstances,  there was no

            abuse  of discretion in dismissing his  complaint as to these

            defendants.  

                 Fleming  also argues  that the  district court  erred in

            granting the motion to dismiss the complaint as to the served

            defendants based upon his  failure to comply with  Local Rule

            19(c).   We disagree.  A  pro se litigant must  comply with a
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            district  court's procedural  rules, as  well as  the Federal

            Rules  of Civil Procedure.  See Anchor Properties, 13 F.3d at
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            31;  see also Corey v. Mast  Rd. Grain & Bldg. Materials Co.,
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            738  F.2d 11, 12 (1st Cir. 1984) (holding that district court

            was entitled to  insist upon compliance  with its local  rule

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which  required  plaintiff  to  respond within  ten  days  to

            defendants' motion  for  dismissal).   Contrary to  Flemings'

            suggestion,  we do not think his September 14, 1994 motion to

            add defendants should have been construed as an objection  to

            the motion to  dismiss.  We add that, in any event, Flemings'

            complaint that he was not provided with  a copy of the prison

            rules failed to allege sufficient involvement or knowledge on

            the part of  the served  defendants to state  a   1983  claim

            against them.  See Gutierrez-Rodriguez v. Cartagena, 882 F.2d
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            553, 562 (1st Cir.  1989) (liability under   1983  may not be

            predicated upon a theory of respondeat superior).  

                 Affirmed.
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