Robert Gundlach v. Commissioner Social Security

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: FISHER, JORDAN and VANASKIE, Circuit Judges. Total Pages: 3. CLD-363

Case: 16-2462

Document: 003112376779

Page: 1

CLD-363

Date Filed: 08/10/2016

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-2462
___________
ROBERT GUNDLACH,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-15-cv-08153)
District Judge: Honorable Jose L. Linares
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 28, 2016
Before: FISHER, JORDAN and VANASKIE, Circuit Judges
(Opinion filed August 10, 2016)
_________
OPINION*
_________

PER CURIAM
Appellant Robert Gundlach appeals pro se from an order of the United States
District Court for the District of New Jersey dismissing his case for failure to effectuate

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 16-2462

Document: 003112376779

Page: 2

Date Filed: 08/10/2016

service of the summons and his complaint within the time limit prescribed by Federal
Rule of Civil Procedure Rule 4(m). For the reason that follows, we will vacate the
District Court’s order and remand for further proceedings.
On November 19, 2015, Gundlach filed a motion to proceed in forma pauperis in
the District Court. He sought the District Court’s review of a determination by the
Commissioner of the Social Security Administration (“Commissioner”). On December 2,
2015, the District Court granted Gundlach’s motion and issued a summons as to
Appellee, the Commissioner. On that same date, the District Court ordered that the Clerk
file Gundlach’s complaint. Gundlach did not serve the complaint upon the
Commissioner.
On March 10, 2016, the District Court issued an order requiring Gundlach to show
cause as to why the case should not be dismissed for his failure to serve his complaint
upon the Commissioner within the time set forth under Rule 4(m). On March 30, 2016,
after Gundlach failed to respond to the Court’s order, the District Court entered an order
dismissing the complaint without prejudice under Rule 4(m). Gundlach timely appealed.
We have jurisdiction under 28 U.S.C. § 1291. See Welch v. Folsom, 925 F.2d
666, 668 (3d Cir. 1991) (order of dismissal is final and appealable under § 1291 where
complaint filed by a plaintiff granted leave to proceed in forma pauperis is dismissed
without prejudice for failure to effect service of process). We review dismissals pursuant
to Rule 4(m) for abuse of discretion. See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d
565, 568 (3d Cir. 1996).
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Case: 16-2462

Document: 003112376779

Page: 3

Date Filed: 08/10/2016

The District Court improperly dismissed Gundlach’s suit by citing his failure to
serve process. As a litigant proceeding in forma pauperis, Gundlach was not responsible
for the service of process. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue
and serve all process[.]”); see also Byrd v. Stone, 94 F.3d 217, 220 (6th Cir. 1996). Once
Gundlach was granted in forma pauperis status, the District Court was obligated to
appoint a United States marshal to effect service. See Fed. R. Civ. P. 4(c)(3). For this
reason, we will vacate the District Court’s order dismissing Gundlach’s complaint and
remand the case for further proceedings.

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