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UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
RICHARD CLEMONS,
Plaintiff-Appellant,
v.
CYNTHIA SOELTNER,
Defendant-Appellee.
No. 02-2005
62 Fed. Appx. 81
March 26, 2003, Filed
NOTICE: NOT RECOMMENDED FOR FULL-TEXT PUBLICATION. SIXTH CIRCUIT RULE 28(g) LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 28(g) BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS REPRODUCED.
Before: MARTIN, Chief Judge;
ROGERS, Circuit Judge; EDMUNDS, District Judge *
Richard H.
Clemons, a Michigan prisoner proceeding pro se, appeals a district court
judgment dismissing his civil rights complaint filed pursuant to 42 U.S.C. §
1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(1), Rules of the Sixth
Circuit. Upon examination, this panel unanimously agrees that oral argument is
not needed. Fed. R. App. P. 34(a0.
On April 24, 2001, Clemons
filed a complaint against Cynthia Soeltner, a correctional officer formerly
employed by the Michigan Department of Corrections. Relying upon the First and Eighth
Amendments to the United States Constitution, Clemons alleged that Soeltner
retaliated against him for filing grievances and complaining about the
conditions of his confinement. Clemons sought monetary and equitable relief.
On May 24, 2002, a magistrate judge filed a report recommending
dismissal of the complaint because Clemons failed to effect service upon
Soeltner within 120 days of the filing of the complaint. Over Clemons's
objections, the district court approved and adopted the magistrate's report and
recommendation and dismissed the complaint wihtout prejudice for failure to
prosecute. Clemons has filed a timely appeal.
We review the district court's dismissal of a complaint for
failure to serve the defendant under an abuse of discretion standard of review.
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996).
Federal Rule of Procedure 4(m)
requires the plaintiff to serve the summons and complaint upon the
defendant within 120 days after the complaint is filed. Rule 4(m) provides that
if service of the summons and complaint is not made within 120 days of filing
the complaint, the court shall upon motion or sua sponte dismiss the action
without prejudice, or direct that service be effected in a specified time. The
court may, upon a showing of good cause, extend the time for service beyond 120
days. Moncrief v. Stone, 961 F.2d 595, 596 (6th Cir. 1992).
Clemons
filed the complaint on April 24, 2001, the same day his motion for leave to
proceed in forma pauperis was granted. The court ordered the clerk to arrange
for service of process upon Soeltner by the United States Marshal. The summons
was issued on October 29, 2001. On November 14, a return of service form was
filed indicating that service had been attempted but could not be executed
because Soeltner was no longer employed by the Department of Corrections.
In his brief, Clemons asserts
that in an earlier action against a different defendant in the same court,
Soeltner was on medical leave from the Department of Corrections and had
arranged with the state attorney general to provide instructions on where the
court could effectuate service. Relying on this, Clemons filed a motion to
compel the attorney general to provide the address under seal to effectuate
service. On December 11, the magistrate ordered the attorney general to submit
Soeltner's address [*83] to the clerk's office for purpose only of serving
process. In its order, the court noted that as a prisoner, Clemons is
restricted from access to home addresses of state prison employees.
The
attorney general did not comply with the order at anytime. Clemons filed
another motion, this time to compel the attorney general to comply with the
December 11 order. On February 22, 2002, the court ordered the attorney general
to provide Soeltner's address within fourteen days.
Again, the attorney general
failed to respond. Clemons filed a motion for contempt on March 19. On May 24
the magistrate filed a report recommending
dismissal of the complaint without prejudice for failure to obtain
service in 120 days, and denying Clemons's motions to compel service and for
contempt as moot.
We have found good cause, as have our sister circuits, when
failure of the Marshals Service and clerk to perform their required duties
resulted in failure to effect timely service on behalf of a pro se plaintiff proceeding
in forma pauperis. Byrd, 94 F.3d at 220.
Other circuits have addressed cases in which service did not
occur within 120 days because of difficulty obtaining information about
defendants. In Del Raine v. Carlson, 1996 U.S. App. Lexis 2645, Nos. 94-2595/94-3101, 1996 WL 47451
(7th Cir. Feb. 1, 1996), the Seventh Circuit held that the district court
abused its discretion in dismissing a prisoner's complaint for failure to
timely serve defendants. Id at *14. Del Raine had repeatedly sought addresses
for several defendants by serving interrogatories on the defendant director of
the bureau of prisons, who repeatedly ignored the requests. Id. at *8. In Graham
v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995), the court of appeals remanded to
the district court to evaluate the efforts of the Marshals Service in serving
process on defendants who were no longer employed by the prison. It instructed
that if the Marshals Service could have obtained the addresses, the failure to
serve process was good cause under Rule 4(m). Id. In Krueger v. Doe, 1998 U.S.
App. Lexis 26079, No. 98-6144, 1998 WL 717286 (10th Cir. Oct. 14, 1998), the
court of appeals upheld dismissal of a suit against several defendants, one
known and the rest unknown, for failure to effect service and find information
about the defendants. Id at *3. The court, however, found that of 470 days when
service did not occur, the plaintiff was excused from 264 while waiting for the
Marshals Service to respond to a court order compelling it to provide the known
defendant's full name and address. Id. at *2.
Here we
find that the district court failed to enforce its own orders compelling the
attorney general to provide Soeltner's address. It then ignored this obvious
oversight and dismissed Clemons's claims, placing the blame for lack of service
on Clemons. As an incarcerated plaintiff, however, Clemons did demonstrate
diligence in seeking the address for service. Restricted from obtaining it
because he is imprisoned, he sought relief from the court on numerous occasions.
We hold that failure of the
attorney general to respond to the court orders constituted good cause for
delay in effectuating service, and that the district court abused its
discretion in dismissing the claims. We remand to the district court for
proceedings consistent with this order, and with instructions to issue a show
cause order to the Michigan Attorney General to explain why it has twice failed
to respond to the court's orders compelling it to release the address to the
Clerk of the Court.
* The
Honorable Nancy G. Edmunds, United States District Judge for the Eastern
District of Michigan, sitting by designation.