
USCA1 Opinion

	




          April 25, 1995                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2148                                DAVID GORDON FLEMING,                                Plaintiff, Appellant,                                          v.                              MARTIN MAGNUSSON, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                            Cyr and Stahl, Circuit Judges.                                           ______________                                 ____________________            David Gordon Fleming on brief pro se.            ____________________            Andrew  Ketterer,  Attorney General,  and  Diane  Sleek, Assistant            ________________                           ____________        Attorney General, on brief for appellee.                                 ____________________                                 ____________________                            Per  Curiam.   Plaintiff David  Gordon Fleming,  a Maine                 ___________            inmate,  appeals pro  se from  a judgment  against him  in an                             ___  __            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                     __  _____ ________            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                                                __ ____            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                                      ___ ______            cause why he  had not  made timely service  on the  remaining            twelve defendants.  See Fed. R. Civ. P. 4(m).   After Fleming                                ___            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                                                                       __            novo and adopted the magistrate's recommendations.   Judgment            ____            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                                                                   ___ __            defendant, he  should  not  have been  held  to  the  "strict                                         -3-            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                                     ___ __            from compliance  with the  Federal Rules of  Civil Procedure.            FDIC  v. Anchor Properties, 13  F.3d 27, 31  (1st Cir. 1994).            ____     _________________            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,                                                    ________    ________            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                                      ___ __            district  court's procedural  rules, as  well as  the Federal            Rules  of Civil Procedure.  See Anchor Properties, 13 F.3d at                                        ___ _________________            31;  see also Corey v. Mast  Rd. Grain & Bldg. Materials Co.,                 ________ _____    _____________________________________            738  F.2d 11, 12 (1st Cir. 1984) (holding that district court            was entitled to  insist upon compliance  with its local  rule                                         -4-            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                           ___ ___________________    _________            553, 562 (1st Cir.  1989) (liability under   1983  may not be            predicated upon a theory of respondeat superior).                   Affirmed.                 ________                                         -5-
