Olsen v. Mapes, 02-2226.

• Decision Date: 26 June 2003
• Docket Number: No. 02-2226.,02-2226.
• Citation: 333 F.3d 1199
• Parties: Tom OLSEN and Naomi Olsen, Plaintiffs-Appellants, v. Paul MAPES; Robert Babcock; and The New Mexico Board of Pharmacy, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

333 F.3d 1199

Tom OLSEN and Naomi Olsen, Plaintiffs-Appellants, v. Paul MAPES; Robert Babcock; and The New Mexico Board of Pharmacy, Defendants-Appellees.

No. 02-2226.

United States Court of Appeals, Tenth Circuit.

June 26, 2003.

Submitted on the briefs:^* Tom Olsen and Naomi Olsen, pro se.

Before EBEL, HENRY and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

Plaintiffs Tom and Naomi Olsen ("Plaintiffs"), proceeding pro se, brought this action in the United States District Court for the District of New Mexico against attorney Robert Babcock and Administrative Law Judge Paul Mapes. In a Second Amended Complaint, Plaintiffs also attempted to add the New Mexico Board of Pharmacy ("Board") as a defendant.

On October 16, 2002, the district court entered its Amended Order of Dismissal with Prejudice, disposing of all of Plaintiffs' claims. With respect to Defendant Babcock, the court found that it had no personal jurisdiction. With respect to Defendant Mapes, the court found that Plaintiffs had consistently failed to comply with the court's orders to perfect service in accordance with Federal Rule of Civil Procedure 4(i) and dismissed the claims against Mapes. Because Plaintiffs had failed to comply with the district court's orders regarding service on Defendant Mapes, the district court struck Plaintiffs' Second Amended Complaint, thereby dismissing their claims against the Board.

On appeal, Plaintiffs argue that their claims against Defendants Mapes and the New Mexico Board of Pharmacy should not have been dismissed.¹ They note that, because they are proceeding in forma pauperis, the district court had ordered the U.S. Marshal to complete service on their behalf. Thus, they argue, any failure to perfect service was the responsibility of the U.S. Marshal, not of Plaintiffs. Alternatively, Plaintiffs argue that they did perfect service on Defendant Mapes and that any defect in such service was not so serious as to warrant dismissal of the action with prejudice. Because the record reflects that the U.S. Marshal was in fact ordered to perfect service on Defendant Mapes, we REVERSE the dismissal of Plaintiffs' claims against Mapes and REMAND for further proceedings. We also REVERSE the striking of Plaintiffs' Second Amended Complaint and REMAND for the district court to consider it in accordance with Federal Rule of Civil Procedure 15.

I. Background

On May 18, 2001, Plaintiffs Tom and Naomi Olsen initiated this action in the United States District Court for the District of New Mexico, naming Defendants Paul Mapes and Robert Babcock. Plaintiff Tom Olsen is also the plaintiff in an administrative proceeding brought under the Longshore Harbor Worker's Compensation Act, which is currently pending before Defendant Mapes, who is an Administrative Law Judge. Defendant Babcock is an attorney who represents Olsen's former employer, Triple A Machine Shop, Inc., in that proceeding. Plaintiffs' claims in this action arise from the conduct of Mapes and Babcock in the administrative proceeding.

On May 24 and June 19, 2001, United States Magistrate Judge Leslie Smith granted Plaintiffs' respective Applications to Proceed In Forma Pauperis. Noting Plaintiffs' pauper status, Judge Smith then entered orders on May 30 and June 21, 2001, directing the U.S. Marshal "to serve the summons and complaint personally on defendants as directed by the clerk." (Record on Appeal ("ROA"), Docs. 3, 4.)

Because Defendant Mapes is a United States Administrative Law Judge, Plaintiff was required to serve him in accordance with Federal Rule of Civil Procedure 4(i). Rule 4(i) requires that service on officers of the United States be made on both the United States and the officer. Fed.R.Civ.P. 4(i)(2). Rule 4(i)(1) describes service upon the United States as follows:

Service upon the United States shall be 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, and

(C) in any action attacking the validity of an order of an officer or agency of the United States not made a party, by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency.

Fed.R.Civ.P. 4(i)(1).

Service on the officer depends on whether the officer is sued in an official or individual capacity. If the officer is sued in an official capacity, the plaintiff may serve him or her by "sending [the officer] a copy of the summons and complaint by registered or certified mail." Fed.R.Civ.P. 4(i)(2)(A). If the officer is sued in an individual capacity, service must be perfected "in the manner prescribed by Rule 4(e), (f), or (g)." Id. 4(i)(2)(B).

Thus, in this case, to perfect service on Mapes, Plaintiffs would be required to deliver a copy of the summons and complaint to the United States attorney for the District of New Mexico (or to an assistant United States attorney or clerical employee designated by that United States attorney). They would further be required to send a copy of the summons and complaint by registered or certified mail to the United States Attorney General. Finally, they would be required to serve Defendant Mapes by sending him a copy of the summons and complaint by registered or certified mail (if he is sued only in his official capacity) or by serving him in accordance with the standard rules of personal service articulated in Rule 4(e) (if he is sued in his individual capacity).

In November 2001, Plaintiffs' case was transferred to United States District Judge Martha Vazquez. On December 18, 2001, she entered an order denying several motions that Plaintiffs submitted following their initial complaint. Her order advised Plaintiffs that their "service of process was inadequate, as it failed to specify which method of service was used and listed several possible methods of service, such as U.S. mail and/or Federal Express." (ROA, Doc. 13 at 3.) It further instructed them "to carefully read and comply with the Federal Rule of Civil Procedure with regard to the proper method of service of process" and "to follow Fed.R.Civ.P. 4(i) when serving Officers of the United States (which includes Judicial Officers and U.S. Attorneys)." (Id.) It reminded them that "service must be completed either by certified mail or in person when serving a U.S. Attorney under Fed.R.Civ.P. 4(i)." (Id.) This order did not mention Judge Smith's order directing the U.S. Marshal to perfect service.

On March 15, 2002, the case was transferred again to District Judge M. Christina Armijo. On this same date, Plaintiffs filed an Amended Complaint, still naming only Defendants Mapes and Babcock. On June 5, 2002, without requesting leave to amend, Plaintiffs filed a Second Amended Complaint, naming Defendants Mapes and Babcock and adding the New Mexico Board of Pharmacy.

On June 7, 2002, the Plaintiffs filed a "Request for Judicial Determination of Service or, in the Alternative, Motion for Default Judgment," asking "that the court make a determination of service upon the Federal Defendants/Respondents, as they have been served in excess of three times, all with the response that service was `inadequate'." (ROA, Doc. 25 at 1.) Plaintiffs argued that pursuant to Judge Vazquez's order, they had served Defendants via certified mail and in person. They submitted four unsigned certified mail receipts and a copy of the "Proof of Service" attached to their Amended Complaint. The Proof of Service was stamped as received by the U.S. Attorney's Office in Albuquerque, New Mexico, on March 15, 2002.

On June 12, 2002, Defendant Mapes filed a "Notice of Non Service on Government Defendants," stating that Plaintiffs had failed to properly serve the United States in accordance with Fed.R.Civ.P. 4(i) and failed to properly serve their Second Amended Complaint on the office of the United States Attorney for the District of New Mexico. This Notice did not mention any specific failure by Plaintiffs—it merely states that service was not proper or in conformance with Rule 4(i).

On June 27, 2002, Judge Armijo entered an order finding that

Plaintiffs have failed to make a sufficient showing that all officers, employees, agencies, and/or locations of the United States required to be served pursuant to Fed.R.Civ.P. 4(i) have been properly served in this case. In this regard, the Court notes Plaintiffs' failure to produce the signed return receipts for certified mail evidencing the receipt of the mailing by each such officer, employee agency, and/or location of the United States.

(ROA, Doc. 27 at 1.) She ordered Plaintiffs to "complete service of the Summons and Second Amended Complaint upon each officer, employee, agency, and/or location of the United States required to be served under Fed.R.Civ.P. 4(i) within fifteen (15) days" and to "file sufficient proof of service at that time as well." (Id. at 2.) Plaintiffs were advised that "failure to comply with this directive may result in the Court dismissing the complaint." (Id.)

On July 15, 2002, in response to Judge Armijo's order, Plaintiffs filed their "Proof of Service as Ordered by the Court." To prove service, they attached as Exhibit 1 a copy of the first page of their Second Amended Complaint stamped received by the U.S. Attorney's Office in Albuquerque, New Mexico on July 1, 2002, and signed by Assistant U.S. Attorney Mitchell.

On July 31, 2002, Judge Armijo entered an Order dismissing this case with prejudice. She...