Fleming v. Magnusson

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[NOT FOR PUBLICATION]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, and Diane Sleek, Assistant

Attorney General, on brief for appellee.

Per Curiam. Plaintiff David Gordon Fleming, a Maine

inmate, appeals pro se from a judgment against him in an

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

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

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

cause why he had not made timely service on the remaining

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

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 120 day period provided by

Fed. R. Civ. P. 4(m). However, he contends that as a pro se

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

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,

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

district court's procedural rules, as well as the Federal

Rules of Civil Procedure. 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

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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

553, 562 (1st Cir. 1989) (liability under 1983 may not be

predicated upon a theory of respondeat superior).

Affirmed.

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