[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
OCTOBER 7, 2005
No. 05-10236 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-00842-CV-WBH-1
JOSEPH EARL SMITH,
Plaintiff-Appellant,
versus
ROBERT H. McMICHAEL, Chief Deputy U.S. Marshal,
UNKNOWN, (Two Unknown U.S. Marshals)
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(October 7, 2005)
Before TJOFLAT, DUBINA and PRYOR, Circuit Judges.
PER CURIAM:
Joseph Earl Smith, a federal prisoner, appeals, pro se and in forma pauperis,
the dismissal of his civil rights action, under Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999 (1971).
Because the district court did not err when it dismissed Smith’s case, we affirm.
I. BACKGROUND
Smith filed a pro se complaint in the district court and named as defendants
Chief Deputy United States Marshal Robert H. McMichael in his individual and
official capacities, and two unknown United States Marshals in their individual and
official capacities. Smith alleged that, on March 21, 2001, two unknown marshals
confiscated and destroyed extensive portions of legal materials that Smith had
accumulated regarding his criminal case and the conditions of his confinement at
the Atlanta Pre-trial Detention Center. Smith alleged that the two unknown
marshals violated his due process rights under the Fifth Amendment, denied him
“access to the courts,” conspired to confiscate and destroy his legal materials in
violation of his First and Fifth Amendment rights, and violated his “pursuit of
liberty” by purposely and maliciously disposing of his legal papers. Smith alleged
that McMichael caused him harm by failing properly to instruct, supervise, and
train the two unknown marshals.
The district court dismissed all Smith’s claims as frivolous, except the
2
access to courts claim. See 28 U.S.C. § 1915A. On a motion by Smith for
reconsideration and leave to amend, the district court vacated its dismissal and
granted Smith leave to amend his complaint. In an order dated November 5, 2003,
the district court instructed Smith to draft his amended complaint on an attached
Bivens form, imposed a 20-page limitation on the amended complaint, and stated
that Smith was required to identify clearly each defendant responsible for each
claim and to state concisely his factual allegations. The district court warned that
“failure to timely submit an amended complaint which conforms to [its]
instructions may result in the dismissal of those claims that [Smith] seeks to
amend.” On a motion for extension of time, the district court extended the
deadline for Smith to file his amended complaint to February 20, 2004.
On February 23, 2004, Smith filed a 79-page amended complaint that named
additional defendants. Smith also filed a motion to consolidate his Bivens claims
with new claims under section 1983. In an attached affidavit, Smith requested that,
“if this combined complaint is completely unacceptable, that he would be given an
even shorter amount of time (i.e. 15 days) to submit an amended version of the
‘bare bones’ complaint he submitted on March 21, 2003.”
In an order dated March 8, 2004, the district court stated that it had reviewed
Smith’s proposed amended complaint and the attached affidavit and noted that
3
Smith had failed to comply with the instructions of the district court in its
November 5, 2003, order. The district court denied Smith’s motion to consolidate,
and disallowed the proposed amended complaint. The district court also dismissed
Smith’s claims against the two unknown marshals. The only remaining claim was
Smith’s access-to-the-courts claims against McMichael.
McMichael filed a motion to dismiss Smith’s action. The district court
granted the motion to dismiss, on November 22, 2004, on the grounds that the
complaint did not state a claim on which relief could be granted and, in the
alternative, that Smith had failed to exhaust his administrative remedies. Smith
filed a Notice of Appeal. The Notice of Appeal specifically stated that Smith
appealed “to the United States Court of Appeals for the Eleventh Circuit from an
order granting defendant’s motion to dismiss entered in this action on the 22nd day
of November, 2004.”
II. STANDARD OF REVIEW
We review the denial of a motion to amend a complaint for abuse of
discretion. Campbell v. Emory Clinic, 166 F.3d 1157, 1160-61 (11th Cir. 1999).
Leave to amend a complaint “shall be freely given when justice so requires.” Fed.
R. Civ. P. 15(a). We also “review the district court’s application of Rule 15(c) for
an abuse of discretion.” Wayne v. Jarvis, 197 F.3d 1098, 1102 (11th Cir. 1999).
4
III. DISCUSSION
Smith asserts two arguments on appeal. First, Smith argues that the district
court should have construed the affidavit attached to his proposed amended
complaint as a motion for a 15-day extension for leave to file another amended
complaint in the event that the proposed amended complaint was unacceptable.
Second, Smith argues that the district court erred in dismissing his claims against
the two unidentified U.S. Marshals.
Before turning to the merits of Smith’s arguments on appeal, we must first
determine whether we have jurisdiction to consider those arguments. McMichael
argues that Smith’s arguments are not properly before the court because the district
court orders about which Smith complains were not designated in his notice of
appeal. We disagree.
Federal Rule of Appellate Procedure 3(c) requires a Notice of Appeal to
“designate the judgment, order, or part thereof appealed from.” Fed. R. App. P.
3(c)(1)(B). “The general rule in this circuit is that an appellate court has
jurisdiction to review only those judgments, orders or portions thereof which are
specified in an appellant’s notice of appeal.” Osterneck v. E.T. Barwick Indus.,
Inc., 825 F.2d 1521, 1529 (11th Cir. 1987). We liberally construe the requirements
of Rule 3, however. Smith v. Barry, 502 U.S. 244, 248, 112 S. Ct. 678, 681
5
(1992). “[W]hen papers are ‘technically at variance with the letter of [Rule 3], a
court may nonetheless find that the litigant has complied with the rule if the
litigant’s action is the functional equivalent of what the rule requires.’” Id., 112 S.
Ct. at 681-82 (quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17,
108 S. Ct. 2405, 2408-09 (1988).
Liberally construed, Smith’s notice of appeal sufficiently complies with
Rule 3. It is clear from Smith’s notice of appeal, “that the overriding intent was
effectively to appeal.” McDougald v. Jenson, 786 F.2d 1465, 1474 (11th Cir.
1986). Although Smith specifically designated only the order of the district court
that granted McMichael’s motion to dismiss, we have permitted “appeals from
orders not expressly designated in the notice of appeal, at least where the order that
was not designated was entered prior to or contemporaneously with the order(s)
properly designated in the notice of appeal.” Id. The orders that Smith challenges
on appeal were interlocutory orders entered before the order of final judgment
designated in the notice of appeal. Given the posture of the case and the pro se
status of Smith, we find that the notice of appeal shows an overriding intent to
appeal the interlocutory orders of the district court. We, therefore, consider the
merits of Smith’s arguments on appeal.
Smith argues that the district court erred when it failed to construe the
6
affidavit to his proposed amended complaint as a motion for an extension of time
to file another amended complaint. This argument fails. “A district court need not
. . . allow an amendment . . . where they has been undue delay, bad faith, dilatory
motive, or repeated failure to cure deficiencies by amendments previously allowed
. . . .” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001).
There is no evidence that the district court did not liberally construe Smith’s
affidavit. On the contrary, it is evident from the order of the district court that the
district court considered Smith’s affidavit and denied Smith’s request to amend his
complaint further. The district court stated that “the [c]ourt will allow Plaintiff NO
ADDITIONAL OPPORTUNITIES to amend this complaint.”
Moreover, the denial of the motion to amend was not an abuse of discretion.
The district court granted Smith an opportunity to amend his complaint with
specific instructions and granted Smith a generous extension of time to file the
amended complaint. Smith complied neither with the specific instructions of the
district court nor with the deadline for filing. The district court was not required to
allow Smith further opportunities to amend his complaint.
Smith also argues that the district court erred when it dismissed the two
unknown U.S. Marshals from the case. Smith admits that he does not know the
identity of the U.S. Marshals. Because the statute of limitations has run, Smith
7
cannot amend his complaint to add the names of the unknown marshals. See
Wayne v. Jarvis, 197 F.3d 1098, 1103 (11th Cir. 1999); Fed. R. Civ. P. 15(c). The
district court, therefore, properly dismissed the unknown marshals as defendants.
IV. CONCLUSION
The district court did not abuse its discretion when it denied Smith further
opportunities to amend his complaint or when it dismissed the two unknown U.S.
Marshals as defendants. The judgment of the district court, therefore, is
AFFIRMED.
8