[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1541
NINA SUNDEL,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Steven L. Kessler and Geoffrey Q. Ralls on brief for appellant.
Sheldon Whitehouse, United States Attorney, and Michael P.
Iannotti, Assistant United States Attorney, on brief for appellee.
October 5 , 1995
Per Curiam. We affirm the order of the district court
dismissing the claims of plaintiff/appellant Nina Sundel
essentially for the reasons given by the magistrate judge in
his report and recommendation, dated December 7, 1994.
We also deny Sundel's request that she be allowed to
amend her complaint on appeal.
First, having elected not to amend her complaint as of
right before the district court, Sundel now must show that
her case fits into the "long-odds exception" to the general
rule that failure to seek amendment below bars relief on
appeal. Dartmouth Review v. Dartmouth College, 889 F.2d 13,
23 (1st Cir. 1989). The only special circumstance facing
Sundel below was her pro se status. However, "pro se status
[does not] absolve [a litigant] from compliance with the
Federal Rules of Procedure." United States v. Heller, 957
F.2d 26, 31 (1st Cir. 1992) (quoting Feinstein v. Moses, 951
F.2d 16, 21 (1st Cir. 1991)). Therefore, once the magistrate
judge recommended that Sundel's Bivens claims be dismissed
because of "failure to make specific allegations against
individual defendants," Sundel should have exercised her
right to amend her pleadings, see Dartmouth Review, 889 F.2d
at 22 (plaintiff has right to amend pleading after motion to
dismiss, because motion to dismiss is not a responsive
pleading within the meaning of Rule 15), in order to add the
necessary specific allegations. Nor can Sundel contend that
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she was unaware of this information since she included
specific allegations against individuals in her objection to
the report and recommendation of the magistrate judge.
Second, allowing Sundel to amend her complaint would
serve no purpose in this case. The only potentially viable
claims arising out of the facts alleged in Sundel's complaint
are the Bivens claims against individual officers of the
government. Since her original complaint was dismissed
without prejudice to her filing such claims, she may still
pursue any such actions via a properly filed new complaint.
On the other hand, if, as Sundel suggests, the statute
of limitations has already run on her Bivens claims, allowing
her to amend her original complaint would still not overcome
the time bar unless the amendment related back to her
original complaint, pursuant to Fed. R. Civ. P. 15(c)(3).
However, Rule 15(c) requires that, within 120 days of the
filing of the original complaint, "the party to be brought in
by amendment . . . [have] received such notice of the
institution of the action that the party will not be
prejudiced in maintaining a defense on the merits." In the
instant case, the record indicates that the individual
government agents have never been served process nor
otherwise been provided notice of the action. Absent timely
notice, Rule 15(c)'s relation back provisions do not apply.
Wilson v. United States, 23 F.3d 559, 563 (1st Cir. 1994)
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(quoting Rule 15(c)). Moreover, Rule 15(c) ordinarily
applies only when "the proper defendant is already before the
court and the effect is merely to correct the name under
which he is sued. But a new defendant cannot normally be
substituted or added by amendment after the statute of
limitations has run." Id. (quoting Worthington v. Wilson, 8
F.3d 1253, 1256 (7th Cir. 1993)). Consequently, since the
individual defendants were never before the district court,
they cannot be added if the statute of limitations has now
run.
Affirmed. See 1st Cir. R. 27.1.
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