Robinson v. Turner

• Decision Date: 24 January 1994
• Docket Number: No. 92-3936,92-3936
• Parties: Nathan ROBINSON, Plaintiff-Appellant, v. Mr. TURNER, Associate Warden, Gene Finley, Unit Manager, Larry Davis, Case Manager, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 82

15 F.3d 82

Nathan ROBINSON, Plaintiff-Appellant, v. Mr. TURNER, Associate Warden, Gene Finley, Unit Manager, Larry Davis, Case Manager, et al., Defendants-Appellees.

No. 92-3936.

United States Court of Appeals,

Seventh Circuit.

Argued Dec. 14, 1993.

Decided Jan. 24, 1994.

Adam Bourgeois (argued), Chicago, IL, for plaintiff-appellant.

Thomas E. Kieper (argued), Asst. U.S. Atty., Indianapolis, IN, for defendants-appellees.

Before CUMMINGS, BAUER and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Nathan Robinson, a federal inmate, appeals the district court's dismissal of his personal capacity civil rights suit against various officials employed by the United States Bureau of Prisons for lack of personal jurisdiction. See Fed.R.Civ.P. 12(b)(2). Mr. Robinson contends that the district court had personal jurisdiction over the defendants because he complied with Indiana service of process requirements as permitted under Federal Rule of Civil Procedure 4(c)(2)(C)(i). ¹ We reverse and remand the case to the district court for further proceedings consistent with this opinion.

I Facts

On June 1, 1990, Mr. Robinson, proceeding pro se, sued an associate warden and several correctional officers of the United States Penitentiary in Terre Haute, Indiana, under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violating his Eighth Amendment rights during his confinement there in 1988. He alleged that the defendants refused to protect him from an assault by a fellow inmate and denied him constitutionally adequate medical care for his injuries. Mr. Robinson sought compensatory and punitive damages.

In response to one of Mr. Robinson's motions, the court advised him that, pursuant to Rule 4(j), he had 120 days following the filing of the complaint to serve the defendants, and that this period would not expire for many weeks. Mr. Robinson thereafter mailed a copy of the complaint and summons to the Terre Haute facility, the defendants' presumed place of employment, by certified mail. The certified mail receipts were filed with the district court on July 20 and July 27, 1990, but were not signed by the defendants themselves. Instead they were signed by prison mail room employees.

The defendants moved the district court to dismiss the action for lack of personal jurisdiction under Rule 12(b)(2) because Mr. Robinson failed to serve the defendants within 120 days of the filing of the complaint, in this case September 28, 1990, as required by Rule 4(j). On November 27, 1990, Mr. Robinson, represented by counsel, moved to amend his pleadings and moved for an extension of time to serve the defendants. He explained that it was his belief that "the Clerk of the Court for the United States District Court, Southern District of Indiana, Terre Haute Division, would effect service on the defendants in this action on his behalf." Mr. Robinson's motion did not specify whether he had attempted service under the federal service provision, Rule 4(c)(2)(C)(ii), or under Indiana Trial Rule 4.1, pursuant to Rule 4(c)(2)(C)(i).

After a change of counsel, Mr. Robinson responded to the defendants' motion to dismiss almost two years after the motion was filed. The district court ordered Mr. Robinson to show cause why the complaint should not be dismissed for lack of personal jurisdiction. In his response to this order, Mr. Robinson indicated for the first time that he had perfected service under Indiana Trial Rule 4.1 and Federal Rule 4(c)(2)(C)(i).

On September 28, 1992, the district court dismissed Mr. Robinson's complaint on the ground that he failed to serve personally and timely the defendants under Rule 4(j). In determining that it had no jurisdiction over the defendants, the court did not address whether Mr. Robinson had complied with service under state law pursuant to Rule 4(c)(2)(C)(i).

II Discussion

A district court's dismissal for failure to serve properly defendants is reviewed de novo, accepting all well-pleaded facts as true and drawing all reasonable inferences in favor of the plaintiff. Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 2421, 124 L.Ed.2d 643 (1993); Williams v. Leach, 938 F.2d 769, 771 (7th Cir.1991) (citing Rockford Mut. Ins. Co. v. Amerisure Ins. Co., 925 F.2d 193 (7th Cir.1991)).

A plaintiff bringing a Bivens action sues a federal employee in his or her individual capacity, rather than the governmental agency or entity employing the individual, Lewellen v. Morley, 875 F.2d 118, 122 (7th Cir.1989), and is required to make personal service of process. Sellers v. United States, 902 F.2d 598, 603 (7th Cir.1990); Del Raine v. Carlson, 826 F.2d 698, 704 (7th Cir.1987). Generally, personal service is effectuated by delivering a copy of the summons and complaint to the individual personally or by leaving the summons and complaint at the individual's dwelling house or usual place of abode with a person of suitable age and discretion. Fed.R.Civ.P. 4(d)(1). Rule 4(c)(2)(C) provides two additional methods of service for individual defendants. First, Rule 4(c)(2)(C)(i) provides that a defendant may be served pursuant to the law of the state in which the district court sits. Second, Rule 4(c)(2)(C)(ii), the federal service provision, provides that a plaintiff can mail a copy of the summons and complaint to the person to be served, together with two copies of a notice and acknowledgement conforming substantially to form 18-A and a return envelope postage prepaid. Service of the summons and complaint under either method must be made within 120 days after the filing of the complaint. Fed.R.Civ.P. 4(j). If the plaintiff cannot show good cause why service was not made within that period, the complaint will be dismissed without prejudice. Id. The issue in the case before us is whether personal service was effectuated on the defendants. Mr. Robinson argues that he completed service pursuant to state law under Rule 4(c)(2)(C)(i). In contrast, the defendants argue that they were never served because Mr. Robinson failed to satisfy the requirements of Rule 4(d)(1), which requires personal delivery to the defendant's residence.

We first turn to Mr. Robinson's assertion on appeal that he elected to effect service under Indiana law. The defendants submit that Mr. Robinson has changed his position concerning his method of effectuating service, and they invite our attention to his motion to amend his pleading and for an extension of time. Had Mr. Robinson relied upon the federal service provision in the district court, he could not now "retroactively characterize [his] service attempt as having been made pursuant to state law." Umbenhauer v. Woog, 969 F.2d 25, 30 (3d Cir.1992). In his motion, however, Mr. Robinson did not state that he was effectuating service under either state law or the federal service provision. ² Mr. Robinson merely stated that he believed the clerk of the district court would serve the defendants and that all the defendants had not yet been served. ³ Therefore, because Mr. Robinson did not specifically identify the provision under which he attempted service, we cannot say that he impermissibly has changed his position.

We now turn to whether service was effectuated on the defendants. It is well established that personal service of process is required in Bivens actions. See, e.g., Sellers, 902 F.2d at 603; Lewellen, 875 F.2d at 122; Del Raine, 826 F.2d at 705. Service upon an employee in his official capacity does not amount to service in his individual capacity. Micklus v. Carlson, 632 F.2d 227, 240 (3d Cir.1980). "Where money damages are sought from a public official in his individual capacity, service by certified mail under Fed.R.Civ.P. 4(d)(5) is insufficient. Instead, the plaintiff must proceed under the terms of Fed.R.Civ.P. 4(d)(1) and effect personal service." ⁴ Lewellen, 875 F.2d at 122 (citing Micklus, 632 F.2d at 240); see also Lewellen v. Morley, 909 F.2d 1073, 1077 n. 9 (7th Cir.1990); Ecclesiastical Order of the Ism of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir.1988) (per curiam); Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987). ⁵ The treatises point out that, in individual capacity lawsuits, "the usual procedure for service on individuals set out elsewhere in Rule 4 apply, and neither Rule 4(d)(4) nor Rule 4(d)(5) need be consulted." Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure Sec. 1107 at 163 (1987); see also James W. Moore et al., Moore's Federal Practice Sec. 4.29 at 4-240-41 (1986).

The defendants argue that personal service in a Bivens action must be delivered to the dwelling house of the individual pursuant to Rule 4(d)(1). To subscribe to this view of service would preclude mail delivery under either the federal service provision or state law. To craft a judicially-created special provision for Bivens actions, distinct from service rules for individuals generally, would violate the Rules Enabling Act that vests authority for such rulemaking in the Supreme Court and Congress. See 28 U.S.C. Sec. 2072; cf. Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S.Ct. 422, 424-25, 85 L.Ed. 479 (1941) (holding that Rule 35 does not violate the Rules Enabling Act); G. Heileman Brewing Co., Inc. v. Joseph Oat Corp., 871 F.2d 648, 665 (7th Cir.1989) (stating that the Rules Enabling Act "was designed to foster a uniform system of procedure throughout the federal system"). Thus, service may be made upon an individual either pursuant to applicable state law or the federal service provision as permitted under Rule 4(c)(2)(C)(i) and (ii).

In this case, Mr. Robinson claims to have effectuated service pursuant to Rule 4(c)(2)(C)(i), which permits service upon a defendant "pursuant to the law of the State in which the district court is held for the service of summons or other like process upon such defendant in an action brought in the courts of general jurisdiction of that State...