[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals For the First Circuit ____________________

No. 99-1546

LUIS CARRERAS-ROSA, FRANCISCO SOLER-ROSA

Plaintiffs, Appellants,

v.

MELVIN ALVES-CRUZ, ET AL.

Defendants, Appellees.

____________________

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Jimenez, U.S. District Judge]

____________________

Before

Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Lynch, Circuit Judge.

____________________

Antonio Bauza Torres for appellants. Gustavo A. Gelpi, Solicitor General, Commonwealth of Puerto Rico, Rosa N. Russe-Garcia, Deputy Solicitor General, and Roxanna Badillo- Rodriguez, Assistant Solicitor General, for appellees.

____________________ April 20, 2000 ____________________

-2- LYNCH, Circuit Judge. This is an appeal from the dismissal

of a wrongful death civil rights action. Because the dismissal was

based on the plaintiffs' failure to comply with certain orders and

prosecute the action diligently, review is for abuse of discretion.

See Velazquez-Rivera v. Sea-Land Serv., Inc.,

(1st

Cir. 1990).

The underlying action arose out of the death of Angel Luis

Soler-Rosa who, to paraphrase the complaint, was shot to death by

Police Officer Alves-Cruz, after Soler-Rosa, with a toy gun in hand,

demanded money from the cashier at a Kentucky Fried Chicken.

On March 4, 1999, the court dismissed this § 1983 action

against defendant Alves-Cruz because of the plaintiffs' failure to

serve the complaint and summons on Alves-Cruz in his individual

capacity within the 120-day limit and because of the plaintiffs'

failure to comply with the time limits in a court order that required

them to submit an amended complaint that specified in which capacity

Alves-Cruz was sued. At the same time, the court also dismissed the

action against the pseudonymous defendants for lack of prosecution.

There is a great deal of procedural history not relevant to

the decision of this appeal. We turn to the issue of whether the

district court abused its discretion in dismissing the complaint

against Alves-Cruz for failure to comply in a timely fashion with its

order as to the filing of an amended complaint. On August 31, 1998,

the court ordered the plaintiffs to file the amended complaint within

-3- fifteen days. The complaint was filed on November 6, 1998. It was

not, however, given to the defendants until January 29, 1999.

Plaintiffs say that the filing of the amended complaint was

timely. As to the fifteen-day limit, they say that the response was

due September 21, 1998, but the court was closed that day due to

Hurricane Georges. Since the District of Puerto Rico, by Amended Order

of October 16, 1998, extended until October 30, 1998, the filing times

for certain documents originally due to be filed between September 18,

1998, and October 2, 1998, and since, according to the plaintiffs'

calculations, they had two days left on September 18th to file their

amended complaint, they argue that two days should be added to the

October 30th date. They say that gave them until November 3, 1998, to

file the amended complaint and that they in fact did so. (It is not

necessary to determine whether the amended complaint was "filed" on

November 3rd, as the plaintiffs contend, or November 6th, as the

defendants allege and the docket sheet indicates.) Despite the

plaintiffs' creative counting, the filing was due no later than October

30, 1998. Thus, the filing was not timely and the court was warranted

in dismissing the complaint against Alves-Cruz.

As to the remaining defendants (Samuel Soe, Thomas Toe, and

Victor Voe), the dismissal order notes that they were never identified

or summoned, because of the "plaintiffs' lethargic and careless manner

of litigation" over more than a three-year period. Plaintiffs rejoin

-4- that they are not responsible for the delay resulting from an earlier

erroneous dismissal of this action on statute of limitations grounds,

see Carreras-Rosa v. Alves-Cruz,

(1st Cir. 1997), and

they appear to be correct. As to the considerable period of remaining

time in which there was inaction, they claim, without pointing to any

support, that their efforts to obtain discovery were thwarted.

While both sides share some blame for the messy and

frustrating course of this litigation, the plaintiffs have failed to

demonstrate that the district court abused its discretion in dismissing

the complaint against the unidentified defendants, particularly in

light of plaintiffs' failure to comply with court orders as to Alves-

Cruz, the main defendant.

Affirmed.

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