Filed: Nov. 06, 2002
Latest Update: Feb. 22, 2020
Summary: complaint on Wyatt, CFDF, CCRI, CCI or entities related to them.of his nunc pro tunc motion.building in which Girard was detained, not a suable legal entity.his arguments in the district court and on appeal. Local R. 32(b).-5-, back to the magistrate judge.order, or his opening brief to this court.
[NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 02-1275
ROBERT R. GIRARD,
Plaintiff, Appellant,
v.
DONALD W. WYATT DETENTION FACILITY INCORPORATED, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ernest C. Torres, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Robert Girard on brief pro se.
Dennis T. Grieco II and Gidley, Sarli & Marusak, LLP on brief
for non-party appellees Central Falls Detention Facility
Corporation, Cornell Corrections of Rhode Island, Inc. and Cornell
Companies, Inc.
November 5, 2002
Per Curiam. From August 1995 to February 1996, pro se
plaintiff Girard was an inmate at the Donald W. Wyatt Detention
Center ("Wyatt"). Wyatt is a correctional facility owned by the
Central Falls Detention Facility ("CFDF"), a public corporation
controlled by the City of Central Falls, and operated by Cornell
Corrections of Rhode Island ("CCRI"), a private corporation
controlled by Cornell Companies, Inc. ("CCI"), itself a private
corporation. Girard allegedly filed a complaint with the district
court against Wyatt on December 4, 1997. The district court,
however, has no record of this complaint, and Girard makes no claim
that service of process was ever executed with respect to the 1997
complaint on Wyatt, CFDF, CCRI, CCI or entities related to them.
Nothing happened for more than two years, until Girard
wrote to the district court in March 2000 to inquire about the
status of his 1997 complaint. The court informed Girard that it
had no record of the 1997 complaint, but invited him to refile a
"new case." He did so on April 18, 2000, paid the filing fee on
April 24, 2000, and service of process was executed on the warden
of Wyatt on June 1, 2000. His complaint alleged various civil
rights violations under 42 U.S.C. §§ 1981, 1983, 1985 (2000), and
asked for damages in the amount of $100,000.
The applicable Rhode Island statute of limitations is
three years, R.I. Gen. Laws § 9-1-14, and (absent tolling) would
have expired in February 1999. With his re-filed complaint, Girard
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made a self-styled "nunc pro tunc" motion to treat his 2000 filing
as timely because of the alleged clerical error in mishandling his
1997 complaint. In support of the motion, he included a copy of
the certified mail return receipt indicating delivery to the
district court on December 4, 1997. The district court denied the
motion "without prejudice to renew the motion if and when the
defendants are served and file a motion to dismiss on statute of
limitations grounds."
CCRI, a self-styled "non-party" to the action, made a
Rule 12(b)(6) motion in June 2000 to dismiss Girard's 2000
complaint as untimely. Girard filed objections, apparently relying
on the "without prejudice" language in the district court's denial
of his nunc pro tunc motion. The Rule 12(b)(6) motion was referred
to a magistrate judge, who issued a report on February 5, 2001
recommending dismissal. The magistrate reasoned that the certified
mail return receipt did not show that the mailing actually included
a complaint, and, in any case, Girard had abandoned his suit by
failure to prosecute. Girard objected to the report, arguing,
inter alia, that R.I. Gen. Laws § 9-1-19 (as it existed prior to
its amendment in July 2001) tolled the statute of limitations for
prisoners. The district court did not address the tolling
argument, but sustained Girard's objections, explaining that there
was a question of fact whether Girard had filed a timely complaint
in 1997.
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On remand to the magistrate judge, Girard moved on March
27, 2001, to amend the complaint to add CFDF, CCRI and CCI as
defendants, and to increase the amount of damages to $500,000. The
parties sought to be added objected, and again the magistrate judge
issued a memorandum and order on May 7, 2001, denying the motion to
amend. The magistrate judge treated the date of the original
filing as December 4, 1997, but found that the three-year statute
of limitations had expired before Girard sought to add the new
parties. The magistrate judge then found that the requirements for
relation back under Rule 15(c)(3) were not met because none of the
proposed defendants had knowledge of the complaint within the time
period allowed by Rule 4(m), which is 120 days. Girard filed his
objections on May 15, 2001, arguing that the requirements of
Rule 4(m) had in fact been satisfied. The district court accepted
the magistrate's recommendation denying the motion to amend on June
18, 2001.
On January 8, 2002, the district court issued a show
cause order, directing Girard to show "why this case should not be
dismissed for failure to name a legal entity in the complaint." In
response, Girard argued that Wyatt is a suable legal entity and
that, in the interest of justice, he should be allowed to amend his
complaint. On February 11, 2002, the district court entered an
order dismissing the complaint, and this appeal followed.
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On appeal, Girard continued to press the arguments that
failed him below: namely (1) that Wyatt is a suable entity, and (2)
the requirements of Rule 15(c)(3) were satisfied. These
contentions are without merit. Wyatt is merely the name of the
building in which Girard was detained, not a suable legal entity.
Moreover, no service of process on a properly suable party was
executed until June 2000, well after the allowable time under
Rule 4(m) had expired. Service would be timely executed with
respect to the 2000 complaint, but there the predicate complaint
itself was out of time.
In his reply brief on appeal, Girard again argued that
R.I. Gen. Laws § 19-1-9 would make his attempted amendment timely,
because his continuous imprisonment since his stay at Wyatt would
toll the statute of limitations. Under both the applicable
statute and the District of Rhode Island's local rules, however,
Girard must object to the magistrate's report in order to preserve
his arguments in the district court and on appeal. 28 U.S.C. §
636(b)(1) (2000); D.R.I. Local R. 32(b). This is so in order that
the district judge may "focus attention on those issues--factual
and legal--that are at the heart of the parties' dispute." Thomas
v. Arn, 474 U.S. 140, 147 (1985). Although Girard raised the
tolling argument in objecting to the magistrate judge's February
order, he failed to pursue that argument after the district judge
sustained his objections on other grounds and remanded the matter
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back to the magistrate judge. Just like an argument once raised on
appeal but not pressed again on remand or on a subsequent appeal,
the tolling argument is now forfeited. Cf. id. at 148 (applying
the rationale of appellate waivers to the Federal Magistrate Act).
Our special solicitude toward pro se litigants is not
a license for disregarding long established procedural rules.
Eagle Eye Fishing Corp. v. United States Dep't of Commerce, 20 F.3d
504, 506 (1st Cir. 1994). Where (as here in the May 2001 order)
the magistrate judge failed to notify a pro se plaintiff of the
possibility of forfeiture, we have excused default. United States
v. Valencia-Copete,
792 F.2d 4, 6 (1st Cir. 1986). However,
Valencia itself makes clear that relief is provided for untimely
objections, not for arguments that were not raised in the district
court at all.
Id. at 5-6. Here, after the matter was remanded
back to the magistrate judge, Girard never mentioned the tolling
argument again, whether in his motion to amend, his opposition to
the motion to dismiss, his brief in response to the show cause
order, or his opening brief to this court. His attempt now to
revive this argument in his reply brief comes simply too late.
Keeler v. Putnam Fiduciary Trust Co.,
238 F.3d 5, 10 (1st Cir.
2001).
Of course, even forfeited errors are subject to review
for plain error, but the plain error standard is stringent, United
States v. Olano, 507 U.S. 725, 732-35 (1993), and relief in civil
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cases is exceedingly rare, Chestnut v. City of Lowell, 305 F.3d 18,
20 (1st Cir. 2002) (en banc). Even assuming arguendo that the
Rhode Island statute may apply, this case does not involve a
miscarriage of injustice.
Affirmed.
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