Sundel v. United States, 1st Cir. (1995)

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[NOT FOR PUBLICATION]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
________
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
essentially for the reasons given
Nina Sundel
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,
right
having elected not to
before the district
her case fits into
rule
that
amend her complaint as of
court, Sundel now
the "long-odds exception" to the
failure to
seek amendment
below bars
appeal. Dartmouth Review v. Dartmouth College,

_________________
_________________
23 (1st
Cir. 1989).
Sundel below
[does
The
only special
was her pro se status.

___ __
not] absolve
must show that
[a
general
relief on
889 F.2d 13,
circumstance facing
However, "pro se status

___ __
litigant] from
compliance with
the
Federal Rules
F.2d
of Procedure."
United States v.
_____________
26, 31 (1st Cir. 1992) (quoting Feinstein v. Moses, 951

_________
_____
F.2d 16, 21 (1st Cir. 1991)).
judge
recommended that
because
of
individual
"failure
Therefore, once the magistrate
Sundel's Bivens claims

______
to make
defendants,"
specific
Sundel
right to amend her pleadings,
at
Heller, 957
______
should
be dismissed
allegations against
have
exercised her
see Dartmouth Review, 889 F.2d

___ ________________
22 (plaintiff has right to amend pleading after motion to
dismiss,
because
pleading within
motion
to
dismiss is
not
responsive
the meaning of Rule 15), in order to add the
necessary specific allegations.
-2-
Nor can Sundel contend that
she
was
unaware
of
this information
since
specific allegations against individuals in her
she
included
objection to
the report and recommendation of the magistrate judge.
Second, allowing
serve no purpose in
Sundel to
this case.
amend
her complaint
The only
would
potentially viable
claims arising out of the facts alleged in Sundel's complaint
are
the Bivens
______
claims
against individual
officers of
the
government.
Since
without prejudice
her
original complaint
to her filing
was
dismissed
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
the
time
original
bar
unless
the amendment
complaint, pursuant
However, Rule
15(c) requires
to Fed.
related
R. Civ.
that, within
back
overcome
to
her
P. 15(c)(3).
120 days of
the
filing of the original complaint, "the party to be brought in
by
amendment
institution
of
. .
the
[have]
action
received
that
the
such
party
notice of
will
prejudiced in maintaining a defense on the merits."
not
the
be
In the
instant
case,
government
the
agents
record
have
indicates
never
otherwise been provided notice of
notice, Rule
been
that
the
served
individual
process
nor
the action.
Absent timely
15(c)'s relation back provisions
do not apply.
Wilson v. United States, 23

______
______________
F.3d 559, 563
-3-
(1st Cir.
1994)
(quoting
Rule
15(c)).
Moreover,
Rule
15(c)
ordinarily
applies only when "the proper defendant is already before the
court
and the
effect is
which he is
sued.
substituted
or
But
F.3d 1253, 1256
by
amendment after
(7th Cir. 1993)).
cannot be added if
the
statute
Consequently, since
the statute of
See 1st Cir. R. 27.1.

___
be
of
Wilson, 8
______
never before the district
run.
Affirmed.
________
name under
cannot normally
Id. (quoting Worthington v.

__
___________
individual defendants were
they
correct the
a new defendant
added
limitations has run."
merely to
the
court,
limitations has now
-4-

Sundel v. United States, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

Sundel v. United States, 1st Cir. (1995)

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Sundel v. United States, 1st Cir. (1995)

Uploaded by

Copyright:

Available Formats

USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]

Selya, Stahl and Lynch,

Steven L. Kessler and Geoffrey Q. Ralls on brief for appellant.

Iannotti, Assistant United States Attorney, on brief for appellee.

affirm the order of the

essentially for the reasons given

by the magistrate judge in

his report and recommendation, dated December 7, 1994.

amend her complaint on appeal.

having elected not to

before the district

her case fits into

amend her complaint as of

court, Sundel now

the "long-odds exception" to the

appeal. Dartmouth Review v. Dartmouth College,

was her pro se status.

must show that

889 F.2d 13,

However, "pro se status

26, 31 (1st Cir. 1992) (quoting Feinstein v. Moses, 951

F.2d 16, 21 (1st Cir. 1991)).

Therefore, once the magistrate

Sundel's Bivens claims

right to amend her pleadings,

see Dartmouth Review, 889 F.2d

22 (plaintiff has right to amend pleading after motion to

the meaning of Rule 15), in order to add the

necessary specific allegations.

Nor can Sundel contend that

specific allegations against individuals in her

the report and recommendation of the magistrate judge.

claims arising out of the facts alleged in Sundel's complaint

such claims, she

pursue any such actions via a properly filed new complaint.

hand, if, as Sundel suggests,

of limitations has already run on her Bivens claims, allowing

her to amend her original complaint would still not

filing of the original complaint, "the party to be brought in

prejudiced in maintaining a defense on the merits."

otherwise been provided notice of

15(c)'s relation back provisions

Wilson v. United States, 23

F.3d 559, 563

applies only when "the proper defendant is already before the

F.3d 1253, 1256

(7th Cir. 1993)).

See 1st Cir. R. 27.1.

never before the district

Id. (quoting Worthington v.

individual defendants were

limitations has run."

limitations has now