Lindsey v. U.S. R.R. Retirement Bd.

• Decision Date: 18 December 1996
• Docket Number: No. 95-20955,95-20955
• Citation: 101 F.3d 444
• Parties: Bobby Lee LINDSEY, Plaintiff-Appellant, v. UNITED STATES RAILROAD RETIREMENT BOARD, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 444

101 F.3d 444

36 Fed.R.Serv.3d 827

Bobby Lee LINDSEY, Plaintiff-Appellant, v. UNITED STATES RAILROAD RETIREMENT BOARD, et al., Defendants-Appellees.

No. 95-20955.

United States Court of Appeals Fifth Circuit.

Dec. 18, 1996.

Bobby Lee Lindsey, Huntsville, TX, pro se.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Bobby Lindsey, an inmate proceeding pro se and in forma pauperis, filed a complaint against the United States Railroad Retirement Board alleging that it violated his constitutional rights by denying him retirement benefits to which he was entitled. The district court dismissed the complaint for insufficient service of process. Lindsey appeals the dismissal. We vacate and remand.

FACTS AND PROCEEDINGS

On November 8, 1994, Lindsey filed a pro se and in forma pauperis (IFP) civil rights suit pursuant to 42 U.S.C. § 1983 against the United States Railroad Retirement Board (Board). Lindsey alleged that the Board On December 5, 1994, the district court authorized Lindsey to proceed in forma pauperis. However, the record does not reflect that service issued. On January 24, 1995, approximately 100 days after Lindsey filed his complaint, he moved the district court to appoint Jeffrey Chapin, an inmate, as a "special server of summon[s]" and to order the clerk of court to provide Lindsey with the proper summons form required by Fed.R.Civ.P. 4(a). The district court apparently did not rule on Lindsey's motion. Nothing in the record contradicts Lindsey's assertion that the clerk of court did not provide him with the proper summons form.

                denied him retirement benefits to which he was entitled.  The cover letter accompanying the complaint and IFP application stated:  "Please file the above and serve citation to the address indicated therein ....  Please inform me of the date[ ] of filing and the date which service is issued."  (Emphasis added.)   The complaint, on the line stating "Address for service," listed the address of the Board.  No further addresses were provided
                

Chapin then twice unsuccessfully attempted to serve the United States. After both attempts at service, an Assistant United States Attorney (AUSA) informed Lindsey by letter that service had not been properly effected in accordance with Fed.R.Civ.P. 4(i)(1). In the letters to Lindsey, the AUSA supplied Lindsey with the names and addresses of those who Lindsey could properly serve. A carbon copy of the letter and the addresses were sent to the clerk of court. On July 6, 1995, Lindsey moved the district court to order the clerk of court to serve the United States, and in his motion, presented the court with a service address provided to him by the AUSA. ¹ Nonetheless, on August 22, 1995, the district court denied Lindsey's request and warned Lindsey that his suit would be dismissed for want of prosecution if he failed to serve the United States Attorney General and the Board by September 22, 1995. On October 20, 1995, the district court dismissed Lindsey's claim.

On October 31, 1995, Lindsey filed a Fed.R.Civ.P. 59(e) motion seeking to reinstate his case on the ground that he had diligently attempted to effect proper service but could not do so because the district court and clerk of court refused to provide him with the proper summons form. Lindsey filed a notice of appeal on November 2, 1995. On December 8, 1995, the district court entered an order refusing to reinstate Lindsey's case. Lindsey's notice of appeal became effective upon disposition of his post-judgment motion. See Fed. R.App. P. 4(a)(4).

DISCUSSION

Lindsey appeals the district court's dismissal of his civil rights action against the United States for ineffective service of process, arguing that he could not properly effectuate service of process because the district court judge and clerk of court refused "to supply the proper summons paper with the official seal of the clerk attached thereto" as required by Fed.R.Civ.P. 4(a). We review a dismissal for failure to effect timely service of process for an abuse of discretion. Peters v. United States, 9 F.3d 344, 345 (5th Cir.1993) (per curiam). We conclude that the district court abused its discretion by dismissing Lindsey's case.

Proper service on the United States is effected

(A) by delivering a copy of the summons and of the complaint to the United States Attorney for the district in which the action is brought or to an assistant United States attorney or clerical employee designated by the United States attorney in a writing filed with the clerk of the court or by sending a copy of the summons and of the complaint by registered or certified mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia[.]

Fed.R.Civ.P. 4(i)(1)(A), (B). In addition, in cases challenging the actions of a federal agency, a copy of the summons and complaint must be sent by registered or certified mail to the relevant agency. Fed.R.Civ.P. 4(i)(1)(C).

Special rules govern the procedure for service of process in cases involving in forma pauperis plaintiffs like Lindsey. 28 U.S.C. § 1915(c) provides that "[t]he officers of the court shall issue and serve all process, and perform all duties in [in forma pauperis ] cases." Fed.R.Civ.P. 4(c)(2) goes hand-in-hand with § 1915(c), and it provides that

At the request of the plaintiff ... the court may direct that service be effected by a United States marshal, or other person or officer specially appointed by the court for that purpose. Such an appointment must be made when the plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 ....

(Emphasis added). Once the in forma pauperis plaintiff has taken reasonable steps to identity the defendant(s), "Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the proposition that ... the court is obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service upon the defendants...." Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996) (emphasis added).

If proper service is not made within 120 days of filing the complaint, the action is subject to sua sponte dismissal, without prejudice, by the district court after notice to the plaintiff. Fed.R.Civ.P. 4(m). However, dismissal is improper "if the plaintiff shows good cause for the failure" to properly effect service. Id. ² We have held that "[t]o establish 'good cause' the plaintiff must demonstrate at least as much as would be required to show excusable neglect, as to which simple inadvertence or mistake of counsel or ignorance of the rules usually do not suffice." Peters, 9 F.3d at 345. Upon a showing of good cause, the district court "shall extend the time for service for an appropriate period." Fed.R.Civ.P. 4(m).

The district court in this case provided no reasons for denying Lindsey's request to have the clerk of court serve the United States or for refusing to reinstate Lindsey's case. We must therefore assume the district court found that (1) its refusal to direct the clerk of court (or anyone else) to serve the United States did not excuse Lindsey's failure to properly serve the United States, and (2) Lindsey's failure to procure from the clerk of court the proper summons form required by Fed.R.Civ.P. 4(a) also did not constitute good cause for Lindsey's failure to properly serve the United States. The district court abused its discretion in so finding.

What amounts to "good cause" under any particular set of circumstances is necessarily fact-sensitive. Although we have found no decision within this Circuit that sheds light on the precise issues raised in this case, our decision in Rochon v. Dawson, 828 F.2d 1107 (5th Cir.1987) is illustrative. There, an IFP plaintiff filed suit against a physician. Because the plaintiff was incarcerated, he relied and was dependent on the U.S. Marshal's Service for service of process. He provided the Service with the address of the hospital at which the defendant was allegedly employed. However, no acknowledgment of receipt of process was received. Four months later, the plaintiff added the hospital as a defendant. More than one year after service was attempted on the physician, the district court dismissed the plaintiff's case as to both the physician and the hospital. After the plaintiff moved for reinstatement of his cause of action, the district court reinstated the case and ordered the clerk of court to serve the defendants. The hospital was properly served, but the physician was not. When ruling on one of the hospital's pre-trial motions, the district court noted that the physician had yet to be served. The plaintiff, however, did nothing. Summary judgment was granted in favor of the hospital and the claim against the physician was dismissed for want of prosecution.

We rejected the plaintiff's claim on appeal that his case against the physician should not have been dismissed because the Marshal's Service failed to effectively serve the defendant. We held that "a plaintiff proceeding in forma pauperis is entitled to rely upon service by the U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly effect service of process, where such failure is through no fault of the litigant." 828 F.2d at 1110. We noted, however, that when failure of effective service of process is due to the "dilatoriness or fault" of the plaintiff, relief from a dismissal for insufficiency of service of process should be denied. Id. We reasoned that "a plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects...