Rochon v. Dawson
| Decision Date | 06 October 1987 |
| Docket Number | No. 87-4367,87-4367 |
| Citation | 828 F.2d 1107 |
| Parties | Raymond ROCHON, Plaintiff-Appellant, v. Dr. Mark DAWSON, Defendant-Appellee. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Raymond Rochon, pro se.
Appeal from the United States District Court for the Western District of Louisiana.
Before POLITZ, JOHNSON, and HIGGINBOTHAM, Circuit Judges.
Plaintiff Raymond Rochon appeals pro se from an order issued by the clerk of the district court pursuant to Rule 14 of the Local Rules of the Western District of Louisiana dismissing his action against defendant Dr. Mark Dawson for failure to prosecute. Rochon was at all times during the pendency of this action incarcerated in the Louisiana State Penitentiary at Angola, Louisiana. Because of his incarceration, Rochon was dependent upon the United States Marshal's Service for service of process in this cause. Rochon asserts on appeal that his suit was improperly dismissed due to the fact that the Marshal's Service had failed to effectively serve Dr. Dawson with process. We reject Rochon's contentions and affirm the district court's dismissal.
Rochon was convicted of aggravated rape on December 7, 1979, and is currently serving a sentence of imprisonment at Angola State Penitentiary in Louisiana for that crime. Rochon filed suit against Dr. Mark Dawson on May 15, 1985, pursuant to 42 U.S.C. Secs. 1981, 1983, and 1985, seeking to obtain documentary evidence to attack his rape conviction and to sue the prosecutor and the physician who treated the victim for conspiring against him. While styled as a civil rights suit, the district court recognized that Rochon's suit was in fact "an independent action against a person not a party for production of documents and things...." Fed.R.Civ.P. 34(c).
The district court granted leave to proceed in forma pauperis to Rochon, whereupon the U.S. Marshal's Service mailed a summons and complaint to Dr. Dawson at the location provided by Rochon--American Legion Hospital. The summons was marked "mailed" on June 11, 1985, but the Marshal's Service noted that as of August 28, 1985, no acknowledgement of receipt of process was received.
On October 23, 1985, Rochon amended and supplemented his original complaint, adding American Legion Hospital as a defendant. American Legion was the hospital where Dr. Dawson apparently was employed. Pursuant to Rule 14 of the Local Rules of the Western District of Louisiana, Rochon's suit was ordered dismissed without prejudice on August 7, 1986. Rochon promptly filed an objection and notice of appeal to the dismissal order which was construed by the district court as a motion to reinstate his cause. The district court reinstated Rochon's suit noting that "for reasons unknown, defendant has never been properly served with plaintiff's amended pleading" and ordering that service of Rochon's amended complaint be perfected upon the proper defendant by the clerk of the court. The clerk of the court then issued a summons and amended complaint, which were effectively served upon American Legion Hospital, but not Dr Dawson. In a subsequent order granting American Legion Hospital's motion for a more definite statement, the district court recited that "the record shows that Dr. Mark Dawson was never served with the complaint and that the American Legion Hospital was served on October 20, 1986." Despite this recitation, plaintiff took no further steps to properly serve Dr. Dawson.
Eventually, the district court granted summary judgment for American Legion Hospital. Rochon does not appeal that ruling. However, on April 3, 1987, the clerk again dismissed the suit against Dr. Dawson pursuant to Local Rule 14 for failure to prosecute. Rochon filed a motion to reinstate which was denied by the district court. Thereafter, Rochon filed a notice of appeal.
Federal Rule of Civil Procedure 4(c)(2)(B)(i) provides that a party proceeding in forma pauperis is entitled to service by the U.S. Marshal. 1 In this case, since Rochon was proceeding in forma pauperis, he was dependent upon the Marshal's Service to effectively serve Dr. Dawson. Rule 4(c)(2)(C)(ii) permits service by mail, but dictates that personal service be utilized if no acknowledgement of service by mail is received within twenty days after the date of mailing. The initial issue presented before this Court is the extent to which a plaintiff proceeding in forma pauperis may rely upon the U.S. Marshal's Service to effect proper service of process on a defendant.
Thus far, only the Second Circuit has addressed the above issue. Romandette v. Weetabix, 807 F.2d 309 (2d Cir.1986). In Romandette, the defendant, while receiving actual notice of the plaintiff's suit, asserted the affirmative defense of improper service in accordance with state law. The district court rejected the defendant's affirmative defense of improper service reasoning that it would not be in the interest of justice to penalize the plaintiff for his reliance on the actions of the U.S. Marshal's Service, especially in light of the fact that the defendant was not prejudiced. After the case was reassigned to another district court, the defendant moved to dismiss on the grounds that personal service had never been effected. The district court, to which the case had now been reassigned, granted the defendant's motion.
The Second Circuit held that the dismissal was an abuse of discretion, recognizing that the plaintiff had done everything he could to effect personal service through the Marshal's Service. The court held that:
As an incarcerated pro se litigant proceeding in forma pauperis, [the plaintiff] was entitled to rely upon service by the U.S. Marshals. He indicated to the court his reliance on service by the Marshals and he timely requested that the Marshals effect personal service.
... Moreover, the interests of justice, informed by a liberal interpretation of Rule 4, are best served by allowing this litigant to rely upon the personal service, albeit untimely, ultimately effected by the Marshal Service.
In accord with the reasoning of the Second Circuit in Romandette, we hold that a plaintiff proceeding in forma...
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... ... See also Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986); Rochon v. Dawson, 828 F.2d 1107, 1109-10 (5th Cir.1987); and Mondy v. Secretary of the Army, 269 U.S.App.D.C. 306, 845 F.2d 1051, 1053 (D.C.Cir.1988), all ... ...
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