Armstrong v. Sears
| Decision Date | 26 August 1994 |
| Docket Number | No. 1229,D,1229 |
| Citation | 33 F.3d 182 |
| Parties | Thomas M. ARMSTRONG, Plaintiff-Appellant, v. Robert SEARS, Ulises Delgado, John Rice, and Frederick Marano, Defendants-Appellees. ocket 93-6279. |
| Court | U.S. Court of Appeals — Second Circuit |
Thomas M. Armstrong, pro se.
James C. Woods, Asst. U.S. Atty. N.D.N.Y. (Gary L. Sharpe, U.S. Atty. N.D.N.Y., Albany, of counsel), for defendants-appellees.
Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.
Plaintiff-appellant Thomas Armstrong appeals pro se and in forma pauperis from a judgment entered September 9, 1993 in the United States District Court for the Northern District of New York, Con G. Cholakis, Judge, that dismissed Armstrong's complaint against four agents of the Drug Enforcement Agency (the "DEA Agents") from whom Armstrong seeks damages for an alleged violation of his Fourth Amendment rights. Armstrong's complaint was dismissed for failure to effect timely service of the summons and complaint as required by Fed.R.Civ.P. 4(m). 1
By a prior memorandum decision and order entered April 7, 1993 (the "April Order"), the district court had concluded that Armstrong's initial failure to effect timely service did not warrant dismissal of his complaint pursuant to Rule 4(m). This rule requires dismissal if the summons and complaint are not served upon a defendant within 120 days of the filing of the complaint unless "the plaintiff shows good cause for the failure [to effect service]." The April Order directed Armstrong to ensure that the United States Marshal properly serve by June 4, 1993; (a) the DEA Agents, and (b) the United States by service "upon the United States Attorney and the United States Attorney General in accordance with" the applicable provisions of the Federal Rules of Civil Procedure, now Fed.R.Civ.P. 4(i)(1). See supra note 1. Upon Armstrong's failure to effect service by the specified date, the court dismissed the complaint. This appeal followed.
We conclude that service upon the United States is not required in actions against federal agents in their individual capacities. Accordingly, Armstrong was required to serve only the DEA Agents. We also conclude that there is no basis to affirm for failure to serve the DEA Agents. Accordingly, we reverse and remand.
Armstrong instituted this action by filing his complaint on October 6, 1992. Armstrong alleged that on or about July 28, 1989, the DEA Agents (1) arrested him without probable cause, and (2) forced him to let them into several buildings, including at least one owned by Armstrong, out of fear that if he did not unlock the doors to those buildings the agents would have broken them down. Armstrong sought compensatory and punitive damages for these alleged violations of the Fourth Amendment. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).
The district court granted Armstrong leave to proceed in forma pauperis, and ordered "that the Clerk shall issue a summons and forward it and the complaint to the United States Marshal for service on the named defendants without payment of fees [emphasis added]." See 28 U.S.C. Sec. 1915(c) (); see also Fed.R.Civ.P. 4(c)(2) (). By letter dated October 8, 1992, the Utica office of the United States Marshals Service (the "Service") advised Armstrong that the Service was unable to serve the DEA Agents because Armstrong had failed to properly sign and date the Request for Service forms (the "USM-285 Forms"). Armstrong then signed the USM-285 Forms and returned them to the Service; the form for each of the DEA Agents specified that "[t]his complaint should be served personally."
Instead, however, the Service sought to obtain waivers of service from the DEA Agents pursuant to Fed.R.Civ.P. 4(d). Rule 4(d) provides for the mailing of a summons and complaint to a defendant accompanied by a notice that includes a prescribed text advising the defendant that he may waive service if he returns an enclosed waiver (in this case, a "USM-299 Form") within a prescribed period (here, thirty days), and may be assessed the cost of subsequent service if he declines to waive service. The DEA Agents did not timely return the USM-299 Forms. By letter dated December 15, 1992, the Service advised Armstrong that the DEA Agents had not provided waivers and the Service was "returning the USM 285 [to Armstrong] unexecuted," and directed him to notify the Service in writing and submit a new USM-285 Form "[i]f you desire this office to make any further effort to serve the summons and complaint on this defendant [sic]." Armstrong did not respond to this communication.
By letter dated January 26, 1993, the United States Attorney's Office for the Northern District of New York "advise[d]" Armstrong that:
Pursuant to Rule 4[ (i)(1) ] of the Federal Rules of Civil Procedure when the United States or its agents are named as defendants in a civil action the Summons and Complaint must be personally served upon the United States Attorney's Office and also served by registered or certified mail on the Attorney General of the United States in Washington, D.C. In order to serve the United States in the above-referenced matter, you must personally serve the United States Attorney's Office, which may be accomplished at the Albany Office and send a copy by registered or certified mail to the Attorney General of the United States. Until that time, service is not complete and no action can be taken in this matter.
On March 12, 1993, "the defendants," represented by the United States Attorney for the Northern District of New York, moved to dismiss the complaint for failure to effect service upon the United States. In the April Order, the district court conditionally denied the defendants' motion on the grounds that: (1) Armstrong's reliance upon the Service constituted "good cause" for his failure to serve the DEA Agents, see Fed.R.Civ.P. 4(m), supra note 1; and (2) "Given that Mr. Armstrong is proceeding pro se, and in light of his reliance upon the U.S. Marshal, the Court shall excuse the failure to serve the United States and permit him to attempt service again." The court directed, however, that "[i]n order to avoid dismissal, Mr. Armstrong must ensure that the Marshal properly serves the named defendants and the United States no later than June 4, 1993."
According to his brief on appeal, Armstrong attempted to comply with the court's direction by: (1) mailing a copy of the April Order to the Service at its Albany address; (2) on May 25, 1993, going to the Service's Albany office "to inquire as to the status of the service of his summons and complaint;" and (3) returning to the Albany office on May 27, 1993 and hand delivering a copy of the April Order and additional copies of his complaint. Armstrong asserts that at that time, he "was advised by a marshal that it [service] would be taken care of."
No service was effected upon either the DEA Agents or the United States by June 4, 1993. On June 27, 1993, the United States Attorney for the Northern District of New York moved on behalf of "the Government" to dismiss the complaint "for fail[ure] to serve the United States," although a supporting affidavit noted that neither "the United States nor any of the named defendants have been personally served with a summons and complaint." In responding to this motion, Armstrong recited his efforts on May 25 and 27, 1993 to ensure that the Service would comply with the April Order, and also stated: "Since the United States of America is not a party to this action as the defendants were served [sic] in their individual capacities rather than their official capacities it is questionable whether service on the Attorney General is required[.]" 2
By order entered September 7, 1993, the district court granted the motion to dismiss Armstrong's complaint. A corresponding judgment was entered September 9, 1993. This appeal followed.
While the April Order addressed Armstrong's failure to effect service upon both the DEA Agents and the United States, the two motions to dismiss relied exclusively upon his failure to serve the United States (although an affidavit in support of the second motion narrated Armstrong's failure to serve the DEA Agents). In addition, the court's judgment, as well as the immediately preceding order, announced the dismissal of Armstrong's complaint without specifying the basis for that dismissal. Thus, an important (and perhaps the dominant) reason for the dismissal from which this appeal is taken was Armstrong's failure to serve his summons and complaint upon the United States.
At the outset, therefore, it is especially important to note that Armstrong's complaint seeking damages from the DEA Agents for their assertedly unconstitutional actions is an action against the named defendants in their individual capacities, and not an action against either the defendants in their official capacities or the United States. See Johnston v. Horne, 875 F.2d 1415, 1424 (9th Cir.1989) () (citing Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir.1987)); Liffiton v. Keuker, 850 F.2d 73, 78 (2d Cir.1988) (). Further, Bivens claims are judicially created causes of action without any Congressional authorization. See Bivens, 403 U.S. at 411-12, 91 S.Ct. at 2012 (Burger, C.J., dissenting) (...
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