                                                         [DO NOT PUBLISH]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



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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



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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).



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                                 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



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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



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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.




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