Fleming v. Magnusson, 1st Cir. (1995)

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[NOT FOR PUBLICATION]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.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
___________________
____________________
Before
Torruella, Chief Judge,
___________
Cyr and Stahl, Circuit Judges.
______________
____________________
David Gordon Fleming on brief pro se.
____________________
Andrew Ketterer, Attorney General,
________________
Attorney General, on brief for appellee.
and
Diane Sleek, Assist

____________
____________________
____________________
Per Curiam.
___________
inmate,
action
Plaintiff David
appeals pro
___
brought
se from
__
pursuant
Gordon Fleming,
a judgment
to 42
a Maine
against him
U.S.C.
1983.
For
in an
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
magistrate
judge ("magistrate")
proceed
in
forma pauperis
rights.
That
granted his
("IFP").
On
same day, a
application to
May 2,
1994, the
__
_____ ________
magistrate recommended
frivolous
that the
under 28 U.S.C.
district judge
complaint
1915(d).
be dismissed
On June 15, 1994, the
reviewed the matter de novo

__ ____
the complaint
be dismissed
as
and ordered that
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
disciplinary
proceeding brought against him.

On August
defendants
12, 1994,
Commissioner
Magnusson, and
Donald
Deputy Warden
1994, the district

cause why he
Fleming made
Allen,
Nelson Riley.
made timely service
by mail
Warden
on
Martin
On August
court sua sponte ordered

___ ______
had not
twelve defendants.
service
30,
Fleming to show
on the
See Fed. R. Civ. P. 4(m).

___
remaining
After Fleming
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.

not file an objection to this motion.
however,
Fleming
filed
additional defendants to
the
pursuant to
On September 14, 1994,

seeking
the complaint.
magistrate recommended
allowed
motion
that
leave
to dismiss
19(c) of the
District Court for the District of
to
add
On October 6, 1994,
the motion
Local Rule
Fleming did
be
United States
Maine which provides that
"[u]nless with ten (10) days after the filing of a motion the
opposing
party files written objection
opposing
party shall
The magistrate
leave to add
October
be deemed
to have
further recommended
. , the
waived objection."
that the
additional defendants
24, 1994, the district
thereto . .
motion seeking
be denied as
moot.
On
judge reviewed the matter de

__
novo and adopted the magistrate's recommendations.

____
Judgment
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

Fed. R. Civ. P. 4(m).
However,
defendant, he
not
should
120 day period provided by

he contends that as a pro se
___ __
have been
held
to
the
"strict
-3-
letter"
of the rule.
U.S.C.
1915(c), it
service.
also suggests that, pursuant to 28
was not his
responsibility to
effect
Flemings' pro se status does not insulate

___ __
from compliance
FDIC
____
He
with the
Federal Rules of
v. Anchor Properties, 13
_________________
F.3d 27, 31
him
Civil Procedure.
(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.
923 F.2d
below
754, 757 (9th Cir.
that he
indicated
that
made
he had
unserved defendants.
abuse
such a
1991).
Fleming did
request.
chosen
not to
not allege
On the
contrary, he
proceed
against the
Under the circumstances,
of discretion in dismissing his
defendants.
Boudette v. Barnette,
________
________
there was no
complaint as to these
Fleming
also argues
that the
district court
erred in
granting the motion to dismiss the complaint as to the served

defendants based upon his
19(c).
We disagree.
district
Rules
failure to comply with
pro se litigant must

___ __
court's procedural
of Civil Procedure.
rules, as
Local Rule
comply with a
well as
the Federal
See Anchor Properties, 13 F.3d at

___ _________________
31;
see also Corey v. Mast Rd. Grain & Bldg. Materials Co.,
________ _____
_____________________________________
738
F.2d 11, 12 (1st Cir. 1984) (holding that district court
was entitled to
insist upon compliance
with its local
rule
-4-
which
required
plaintiff
defendants' motion
suggestion,
for
to
respond within
dismissal).
ten
Contrary to
days
Flemings'
we do not think his September 14, 1994 motion to
add defendants should have been construed as an objection

the motion to
to
dismiss.
to
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
against them.
defendants to state
1983
claim
See Gutierrez-Rodriguez v. Cartagena, 882 F.2d

___ ___________________
_________
553, 562 (1st Cir.
1989) (liability under
1983
predicated upon a theory of respondeat superior).

Affirmed.
________
-5-
may not be

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USCA1 Opinion

April 25, 1995

Diane Sleek, Assist

following reasons, we affirm.

On June 15, 1994, the

reviewed the matter de novo

and ordered that

with the exception

proceeding brought against him.

1994, the district

made timely service

court sua sponte ordered

See Fed. R. Civ. P. 4(m).

responded that it was his belief that the unserved defendants

three served defendants filed a

motion to dismiss for failure to state a claim.

On September 14, 1994,

District Court for the District of

Maine which provides that

party files written objection

24, 1994, the district

judge reviewed the matter de

novo and adopted the magistrate's recommendations.

entered, and this appeal followed.

that the complaint should

not have been

dismissed with respect to the unserved defendants for failure

He does not deny that he failed to

serve these defendants within the

120 day period provided by

also suggests that, pursuant to 28

was not his

Flemings' pro se status does not insulate

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

an IFP plaintiff must

754, 757 (9th Cir.

Under the circumstances,

of discretion in dismissing his

granting the motion to dismiss the complaint as to the served

failure to comply with

pro se litigant must

See Anchor Properties, 13 F.3d at

F.2d 11, 12 (1st Cir. 1984) (holding that district court

insist upon compliance

with its local

we do not think his September 14, 1994 motion to

add defendants should have been construed as an objection

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

See Gutierrez-Rodriguez v. Cartagena, 882 F.2d

553, 562 (1st Cir.

1989) (liability under

predicated upon a theory of respondeat superior).

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