Puett v. Blandford

• Decision Date: 08 February 1990
• Docket Number: No. 89-15136.,89-15136.
• Parties: Charles Edward PUETT, Plaintiff/Appellant, v. BLANDFORD, Sgt., Federal Park Police; Newton Sikes; Tom Girard; John Girard, Defendants/Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

912 F.2d 270

Charles Edward PUETT, Plaintiff/Appellant, v. BLANDFORD, Sgt., Federal Park Police; Newton Sikes; Tom Girard; John Girard, Defendants/Appellees.

No. 89-15136.

United States Court of Appeals, Ninth Circuit.

Submitted November 15, 1989^*.

Decided February 8, 1990.

As Amended on Denial of Rehearing August 1, 1990.

Charles Edward Puett, Tracy, California, pro se.

William A. Maddox, U.S. Atty., Las Vegas, Nev., for defendants/appellees.

Before FARRIS, PREGERSON and RYMER, Circuit Judges.

PREGERSON, Circuit Judge:

Charles Edward Puett, an incarcerated state prisoner, appeals pro se from an order of the United States District Court for the District of Nevada dismissing his civil rights action for failure to effect service of the summons and complaint as required by Federal Rule of Civil Procedure 4(j). For the reasons stated below, we vacate the district court's order and remand for service by the United States Marshal in accordance with the provisions of Rule 4 of the Federal Rules of Civil Procedure.

BACKGROUND

On February 19, 1988, appellant Charles Puett filed pro se, in the United States District Court for the District of Nevada, a civil rights complaint against federal officials pursuant to 42 U.S.C. § 1983. Puett also filed a motion to proceed in forma pauperis. The court granted Puett leave to proceed in forma pauperis but dismissed the complaint with leave to amend because § 1983 pertains to state not federal agents.

Puett then brought a Bivens¹ action in an amended complaint filed on March 2, 1988. The amended complaint alleged that federal agents and two private individuals acted together to violate Puett's Fourth Amendment rights by impounding his possessions without a warrant or probable cause. Puett named as defendants Newton Sikes, Chief Park Ranger of Lake Mead National Recreation Area, Sgt. Mike Blandford of the Federal Park Police, and John and Tom Girard, private citizens. The court issued an order on March 3, 1988 providing for service of the summons and amended complaint by the United States Marshal and requiring Puett to supply the Marshal with the necessary information and documents. The record shows that the Marshal mailed copies of the summons and amended complaint to Sikes and Blandford on March 10 and to John and Tom Girard on March 24.

Puett requested proof of service from the Marshal on April 27. He was informed that the defendants never acknowledged receipt of the mailed summons and complaint and that therefore the documents were not considered served. Puett immediately sent the district court clerk a motion, dated May 3, 1988, requesting personal service of the defendants by the U.S. Marshal pursuant to Fed.R.Civ.P. 4 and Nevada District Court Local Rule 160-2(b).² After Puett complied with the clerk's response that he must also submit a proposed order, the motion was filed on May 18. On September 14, the court denied Puett's motion for personal service, stating that Local Rule 160-2(b) does not require the Marshal to effectuate personal service after having unsuccessfully attempted mail service.

Then on September 15, 1988, the court sent Puett a notice of intention to dismiss pursuant to Fed.R.Civ.P. 4(j) for failure to show proof of service within 120 days of the filing of the complaint. The court gave Puett until September 30 to show proof of service or good cause for its absence. In response, Puett again filed a motion requesting that the court direct the U.S. Marshal to effect personal service on the defendants. In his motion, Puett explained that he had done everything he could from prison to effectuate service. Puett included documents showing that he had received letters from defendant Newton Sikes of the National Park Service which showed that both Sikes and defendant Sgt. Mike Blandford were located at the address to which copies of the summons and amended complaint were mailed by the Marshal. Puett also moved for a restraining order to prevent defendants from giving away, selling, or destroying his impounded property.

On November 15, 1988, in response to its September 15 notice, the court issued an order stating that "plaintiff has submitted documentation to the court which suggests he has made a good faith effort to serve the summons and complaint upon the defendants," and that, therefore, he would be allowed 60 additional days to obtain proof of service in compliance with Fed.R.Civ.P. 4(j). The court ordered the Clerk to "reissue summons on the complaint directed to each of the defendants, and deliver them to the United States Marshal for service." The court denied Puett's request for the restraining order, but apparently granted it six days later in an order filed November 22.

Although there is no official documentation, the record suggests that Puett, at the request of the clerk, again filled out the necessary documents for service of copies of the summons and amended complaint and sent them to the Marshal's office on November 23 with a letter requesting personal service on the defendants and that the "United States Attorney be served as the attorney for the defendants under Fed.R.Civ.P. 4(4)(d) sic." It also appears that Puett included a notice to be signed and returned to him by the Marshal indicating whether service was by mail or in person. There is no evidence in the district court record that the U.S. Marshal ever served these copies of the summons and complaint by mail or in person. However, Puett submitted to this court on March 30, 1989 a "Motion to Add Just Received Evidence" which indicates that he had just received from the U.S. Marshal a "process receipt and return" showing that the U.S. Attorney had been served by certified mail on December 7, 1988.

On December 18, 1988, the district court again issued a notice of intention to dismiss pursuant to Fed.R.Civ.P. 4(j) if no proof of service or good cause was shown by January 5, 1987. Puett responded by sending the court a "Motion for Review," again requesting personal service on the defendants by the U.S. Marshal and explaining all he had done to effectuate service. He expressed frustration that plaintiffs who file in forma pauperis seem to have no rights because "all defendants have to do is not respond to the Marshals service and the case will be dropped."

This "Motion for Review," received by the district court on December 27, 1988, was never filed; it was sent back to Puett because it did not conform to Local Rule 155, which requires that a form order be filed separately with the motion. Puett had included a proposed order as part of the last page of his motion.

On January 10, 1989, the district court ordered Puett's case dismissed without prejudice pursuant to Fed.R.Civ.P. 4(j). The court found that Puett had failed to show good cause why he had not effected timely service.

Puett appeals the dismissal and requests a remand to the district court for an order requiring service of the summons and complaint by the U.S. Marshal. Puett contends that (1) the district court should have filed and considered his "Motion for Review" instead of returning it as a violation of Local Rule 155, and that this motion showed that Puett was dependent on the U.S. Marshal for service and that the failure to obtain proof of service was out of his control as he had done all he could do from prison; (2) the clerk did not properly follow the district court's November 15 order because the clerk did not reissue and deliver the summons to the Marshal, but instead, sent the papers to Puett to fill out and mail to the U.S. Marshal; (3) the 60 additional days Puett had been given to effect service in the November 15 order had not yet lapsed when the district court dismissed the action on January 10, 1989; (4) the district court erred in not directing the U.S. Marshal to effect personal service on the defendants after mail service was unsuccessful.

DISCUSSION

Federal Rule of Civil Procedure 4(j) provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion....

Fed.R.Civ.P. 4(j). We review a district court's dismissal of a complaint pursuant to Rule 4(j) for abuse of discretion. Townsel v. County of Contra Costa, Cal., 820 F.2d 319, 320 (9th Cir.1987); Wei v. Hawaii, 763 F.2d 370, 371 (9th Cir.1985).

Under Federal Rule of Civil Procedure 4(c)(2)(B)(i) a party proceeding in forma pauperis is entitled to have the summons and complaint served by the U.S. Marshal.³ Romandette v. Weetabix Co., 807 F.2d 309, 310 n. 1 (2nd Cir.1986). Similarly, 28 U.S.C. § 1915(c) provides that in cases in which a court authorizes a plaintiff to proceed in forma pauperis the "officers of the court shall issue and serve all process." In Davis v. Department of Corrections, 446 F.2d 644 (9th Cir.1971), we held that the district court's dismissal of an action brought by a plaintiff proceeding in forma pauperis for failure to effect service was erroneous because under 28 U.S.C. § 1915(c) the officers of the court should have effected service. Id. at 645. Here, the U.S. Marshal did attempt to effect service, but as will be shown below, the attempts were deficient because they were not in accordance with the Federal Rules of Civil Procedure. We therefore must consider the extent to which an incarcerated pro se plaintiff proceeding in forma pauperis may rely on the U.S. Marshal to effect proper service and when that reliance may constitute good cause for failing to comply with Rule 4(j).

At least two other circuits have considered this precise issue. See Rochon v. Dawson, 828 F.2d 1107 (5th Cir.1987); Romandette, 807 F.2d 309; see also Korkela v. National Security Agency, 107 F.R.D. 229 (E.D.N.Y.19...