                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit



                               No.    96-11125



 ROCHELLE MCGUIRE, Individually as Next Friend and on Behalf of
the Two Minor Children of Shelia A. Moore, Deceased

                                                       Plaintiff-Appellant

                                     VERSUS

 CHARLES A. TURNBO, Warden, Federal Correctional Institution at
Fort Worth; JOHN DOE SINES, Lieutenant at the Federal Correctional
Institution at Fort Worth; FREDDIE CASHAN, Correctional Officer at
the Federal Correctional Institution at Fort Worth; JOHN DOE
MILLER, Correctional     Officer   at  the   Federal   Correctional
institution at Fort Worth; JOHN DOE TURNER, Correctional Officer at
the Federal Correctional Institution at Fort Worth; JANE DOE REYES,
Physician’s Assistant at the Federal Correctional Institution at
Fort Worth; JOHN DOES 1 TO 10, Federal Correctional Institution
Personnel, in their individual and official capacities,

                                                      Defendants-Appellees



           Appeal from the United States District Court
                For the Northern District of Texas
                          March 31, 1998

Before REYNALDO G. GARZA, DUHÉ, and STEWART, Circuit Judges.

JOHN M. DUHÉ, JR., Circuit Judge:
                                       I

     Shelia Moore, a federal inmate incarcerated for a narcotics

offense,   was   placed   in   an    Administrative    Detention   cell   for

suspicion of taking an unknown substance.             Two hours later, she

began screaming and threw a nightstand.           The attending officer

called the prison’s hospital for medical assistance.          An ambulance

took Moore to the hospital where she died the next day of an acute
overdose of cocaine.

     On December 6, 1991, Rochelle McGuire, Moore’s mother, sued

the warden, Charles Turnbo, and other prison personnel for Moore’s

wrongful death and under Bivens v.     Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971)1 for violating

Moore’s Fifth, Eighth, and Fourteenth Amendment rights.

     Three months after filing suit, the clerk of court prepared

summonses, for the named Defendants, the U.S. Attorney for the

Northern District of Texas, and the United States Attorney General.

McGuire requested that the clerk delay issuing the summonses.    On

April 9, 1992, McGuire successfully moved to enlarge the time to

effect service to April 20.    In May, the district court found that

Plaintiff had not yet filed proofs of service and dismissed the

complaint without prejudice.    In June, McGuire successfully moved

for a new trial stating that the Defendants had been served but

that the proofs of service had not been filed.      Attached to her

motion were certified return receipts addressed to the Defendants

and two affidavits from her counsel and his paralegal averring that

counsel had delivered personally a copy of the complaint and

summons to the U.S. Attorney’s office on April 9.

     The district court set a new deadline of June 24, 1993 for

McGuire to file the proper proofs of service with the clerk of

court.    McGuire again successfully moved for an extension of time

      1
       Under Bivens, a person may sue a federal agent for money
damages when the federal agent has allegedly violated that person’s
constitutional rights. After Bivens, one is no longer limited to
suing for conduct that would, if done by a private actor, be
condemned by state law.

                                  2
to file proofs of service.      The district court gave McGuire until

September 15, 1993 to comply but warned that failing to do so could

result in a dismissal of the suit against any unserved defendant.

McGuire filed proofs of service on Turnbo, Reyes, and Turner.

       In   December   1993,   all   Defendants   moved   to   dismiss    or

alternatively for summary judgment. The unserved Defendants argued

for dismissal based on McGuire’s failure to effect service timely.

The served Defendants argued 1) that McGuire’s Fourteenth Amendment

claim applied to state action only and not to the actions of

federal employees, 2) that the Bivens claims had prescribed because

McGuire did not timely sue and she failed to timely serve the

defendants, and 3) that McGuire failed to name the United States as

a defendant in her Federal Tort Claims Act (“FTCA”) claim.               The

district court then ordered additional briefing.

       In McGuire’s response, she attempted to retract her prior

statements that she had not named the United States as a party

under the FTCA and that her suit could not be maintained under the

act.    She also amended her complaint to include the United States

as a party.

       The district court dismissed both the original and amended

complaints with prejudice.       As to the FTCA claim, the court held

that the amended complaint did not relate back to the original

complaint because the United States did not receive notice within

the limitations period. It dismissed the Bivens claims against all

unserved defendants finding that Bivens action required personal

service.     Further, it dismissed the Fourteenth Amendment claim


                                      3
against the served defendants finding it inapplicable to McGuire’s

case alleging wrongful conduct.       The court dismissed the Fifth and

Eighth Amendment claims, finding that McGuire had failed to timely

serve Turner, Turnbo, and Reyes.          In determining that the service

was untimely the court applied Texas law for the limitations and

tolling periods.

                                  II

     We review a Rule 12 dismissal de novo.          See generally, Pfau v.

Reed, 125 F.3d 927, 932 (5th Cir. 1997); St. Paul Reinsurance Co.

v. Greenberg, 1998 WL 49084, at *4 (5th Cir. 1998).

   A. BIVENS CLAIMS

     Under Bivens, a victim who has suffered a constitutional

violation by a federal actor can recover damages in federal court.

Id. at 395-97.     McGuire’s complaint contained three Bivens causes

of action.   First, she alleged that Moore’s treatment violated the

Eighth Amendment’s prohibition of cruel and unusual punishment.

Second, she alleged that the Defendants had violated Moore’s right

to due process of law under the Fifth Amendment.              Last, McGuire

alleged that the Defendants had violated Moore’s rights under the

Fourteenth Amendment.

     1. Fourteenth Amendment Claim

     The   Fourteenth   Amendment,        by   definition,   requires    state

action.    See   U.S. CONST. amend.       XIV.    Here,   McGuire   is   suing

Defendants because of their deeds as federal employees and actors.

Thus, McGuire cannot, as a matter of law, maintain a Fourteenth

Amendment claim.


                                      4
       2. Unserved Defendants

       We agree that McGuire’s Bivens claims against the unserved

defendants were properly dismissed.                  The district court granted

McGuire several extensions and warned McGuire that if she did not

file proof of service any claims against unserved defendants would

be dismissed.      Thus, McGuire received ample time and warning.                She

cannot    now   complain       that   the   court     erred   in    dismissing   her

complaints against those defendants.

       3. Served Defendants

       McGuire argues, as to the served defendants, that the court

erred in finding her service untimely because she served those

defendants within the extended deadline.                The district court found

that McGuire had timely filed her complaint but that she had not

timely served it.        The court looked to Texas law which states that

merely filing suit does not toll the statute of limitations; rather

the plaintiff must file suit within the limitations period and

continuously exercise due diligence in serving the defendant for

limitations to toll.           Hanslere v. Mainka, 807 S.W.2d 3, 4 (Tex.

App.--Corpus Christi 1991, no writ). Because McGuire did not serve

defendants Turnbo, Turner, and Reyes until nearly two years after

filing    suit,   the    court    found     McGuire     had   not    exercised   due

diligence.      Thus, it reasoned, the suit was untimely as a matter of

law.

       When a plaintiff brings a Bivens action in federal court,

those    courts   look    to    state   law     to    determine     the   applicable

limitations period.        Spina v. Aaron, 821 F.2d 1126, 1128-29 (5th


                                            5
Cir. 1987).      The issue in this appeal, which this Court has never

addressed, is whether a court deciding a Bivens suit should also

borrow a state’s service provisions.     In West v. Conrail, 481 U.S.

35, 39 (1987), the Supreme Court held that “when an underlying

cause of action is based on federal law and the absence of an

express federal statute of limitations makes it necessary to borrow

a limitations period from another statute, the action is not barred

if it has been ‘commenced’ in compliance with Rule 3 within the

borrowed period.” While the Bivens opinion does not state directly

that its cause of action is based on federal law, Justice Harlan,

in his concurrence, notes that the interests a Bivens claims

protects are federal.

     The district court erred in applying Texas’ tolling provisions

to this case.     Here, McGuire brings a Bivens claim, which is based

on federal law.        Further, the district court found, and the

Appellees do not contest, that McGuire filed her action within the

limitations period.      There is no question that McGuire complied

with Rule   3.    Therefore, we hold that McGuire’s Bivens claims are

not time barred.

     McGuire’s Bivens claims against the served Defendants do not

fail for lack of service, either.        According to Rule 4(m),2 a

plaintiff must serve the other parties within 120 days.       FED. R.

CIV. P. 4(m).     Under Rule 6(b)(2), a court may extend the 120 day

period if failure to serve resulted from excusable neglect.      FED.

     2
      At the time McGuire filed suit, the rule in effect was Rule
4(j). In 1993, Rule 4 was amended, and the substance of Rule 4(j)
is now contained in Rule 4(m).

                                    6
R.   CIV. P. 6(b)(2).     According    to   the   district   court’s   last

extension, McGuire had until September 15, 1993 to serve Defendants

and file proofs of service.    She served and filed proofs on Turnbo,

Turner, and Reyes on September 14.          Therefore, she has timely

served her complaint on these Defendants.

     B. FTCA

       The FTCA waives the United States’ sovereign immunity from

tort suits, 28 U.S.C. § 2674, and is the exclusive remedy for

compensation for a federal employee’s tortious acts committed in

the scope of employment.      28 U.S.C. § 2679.      To sue successfully

under the FTCA, a plaintiff must name the United States as the sole

defendant.     Atorie Air, Inc. v. Federal Aviation Administration,

942 F.2d 954, 957 (5th Cir. 1991).

       McGuire argues that the district court erred in finding her

FTCA claim untimely because her amended complaint asserting it did

not relate back to the original complaint under Rule 15(c).            Rule

15(c) reads in pertinent part:

       An amendment of a pleading relates back to the date of
       the original pleading when. . . (2)the claim. . .asserted
       in the amended pleading arose out of the conduct,
       transaction, or occurrence set forth. . .in the original
       pleading, or (3) the amendment changes the party or the
       naming of the party against whom a claim is asserted if
       the foregoing provision (2) is satisfied and, within the
       [120 day] period. . . for service of the summons and
       complaint, the party to be brought in by amendment (A)
       has received such notice of the institution of the action
       that the party will not be prejudiced in maintaining a
       defense on the merits, and (B) knew or should have known
       that, but for a mistake concerning the identity of the
       proper party, the action would have been brought against
       the party.

McGuire contends that the amended complaint relates back because


                                   7
none of the Appellees had filed responsive pleading to her original

complaint3 and because the United States received notice within the

time provided by Rule 4(m).

     Appellees respond with three arguments:            (1) the complaint

could not relate back because the United States did not receive

notice    within   the   FTCA   limitations   period;   (2)   even   if   the

complaint related back, the court properly dismissed McGuire’s FTCA

claim for failing to serve the United States with 120 days of the

original filing; and (3) McGuire waived her FTCA claim.

     We address the waiver issue first. To support their argument,

the Appellees point out that McGuire stated in her response to

their motion to dismiss that she could not pursue a claim under the

FTCA because she had not sued the United States. McGuire attempted

to retract the statement in her re-briefed response to the motion

to dismiss.    While the district court struck McGuire’s attempted

retraction, it pointed out that McGuire could (and did) amend her

FTCA claim under Rule 15(a) since it was her first amendment and

the defendants had not filed any responsive pleadings.4               Thus,

McGuire did not waive her FTCA claim, and we now turn to the other

arguments.

     The first issue, one of first impression in this Circuit, is

whether a complaint will relate back under Rule 15(c) when the


      3
       Under Rule 15(a), a party may amend at any time before a
responsive pleading is served.
          4
         Motions for summary judgment and to dismiss are not
responsive. See, Zaidi v. Ehrlich, 732 F.2d 1218, 1219 (5th Cir.
1984).

                                     8
district court   has   enlarged   Rule   4(m)’s   notice   period.   The

district court stated that the amended complaint could relate back

only if the original complaint was timely filed and if the United

States was timely served.    FED. R. CIV. P. 15(c).    To determine if

McGuire’s amended complaint fell within this rule, the district

court relied upon Vernell v. United States Postal Service, 819 F.2d

108 (5th Cir. 1987).   Vernell held that an amended complaint could

relate back only if the United States received notice within six

months after the administrative claim was denied.          Id. at 110-11.

Here, the district court found that McGuire did not notify the

United States within the limitations period.          We hold that the

district court erred in so finding.

     The district court mistakenly relied upon Vernell which was

decided before Rule 15(c) was amended.5       Under the old rule, an

added party had to receive notice within the limitations period.

The new rule, though, as mentioned above, allows the plaintiff to

notify the defendant within the 120 days allowed for service.

Further, the comments to amended Rule 15(c) state that the rule not

only allows service during the 120 days but also during any

extension the court may grant.         FED. R. CIV. P. 15(c) advisory

committee’s notes.     This Court’s task, then, is to determine

whether the United States received notice within Rule 4(m).

     McGuire’s attorney and his employee, in affidavits, swore that

they had personally delivered a copy of the complaint and summons


    5
     The new rule was amended five days before McGuire filed suit
and so it unquestionably applies here.

                                   9
to the Fort Worth U.S. Attorney’s office on April 9, 1992.                    With

respect to the United States, delivery of process to the United

States Attorney satisfies the notice and the knew or should have

known requirements of Rule 15(c).             While the notice does not fall

within    Rule   4(m)’s    120   day    period,   it   does   fall   within    the

enlargement the court granted.6           Thus, the amended complaint did

relate back.

      Appellees final argument is that even if the amended complaint

relates back, the court correctly dismissed the FTCA claim because

the United States was not timely served. McGuire served the United

States on April 9 which was five days after Rule 4(m)’s service

period expired. We note that these last two arguments are similar,

but   service    and   notice    have    different     requirements.     Notice

requires mailing or delivery of process to the U.S. Attorney or the

Attorney General.         FED. R. CIV P. 15(c).         Service requires both

delivery to the U.S. Attorney and mailing to the Attorney General

a copy of the summons and complaint.                   FED. R. CIV. P. 4(i).

Appellees and the district court do not discuss whether a copy of

the complaint and summons was mailed to the Attorney General;

however the record contains two return receipts from the Attorney

General which show receipt on April 10 and 13.                   As mentioned

earlier, the district court granted McGuire until April 20 to

serve. All of these dates fall within that deadline; therefore, we

hold that the United States was timely served.


      6
      The court granted McGuire until April 20 to serve summonses
and file proofs thereof.

                                         10
                           CONCLUSION

     For the above reasons we AFFIRM in part and   REVERSE in part

the district court’s grant of the motion to dismiss and REMAND for

further proceedings.




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