
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                         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                                         -2-            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)            ______    ______________                                         -3-            (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.                 ________   ___                                         -4-
