USCA1 Opinion
April 25, 1995
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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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,
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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
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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).
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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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