Coles v. Hahn

Filing 58

ORDER denying 45 Motion for Summary Judgment; denying 47 Motion to Dismiss for Lack of Jurisdiction. The window for service is reopened. The U.S. Marshals Service is directed to serve the summons and amended complaint on Baptist Health through its registered agent, Russell D. Harrington, Jr., 9601 I-630, Exit 7, Little Rock, Arkansas 72205, via certified mail, return receipt requested and is further directed to file proof of service by January 27, 2012. Signed by Judge D. P. Marshall Jr. on 11-272. (kpr)

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

WESTERN DIVISION

PLAINTIFF

CECIL A. COLES

v.

No.4:11-cv-272-DPM

HERBERT L. HAHN, M.D., in his
official and individual capacities;
ORTHO ARKANSAS, P.A.; and
BAPTIST HEALTH

DEFENDANTS
ORDER

This case has gotten into a tangle - with Coles, a pro se plaintiff, seeking
summary judgment and Baptist Health moving to dismiss - all because of an
apparent mistake. Because Coles is proceeding in forma pauperis, the Court
directed the United States Marshals Service to serve the summons and
amended complaint, Document No.2 7, on the newIy named defendants (Grtho
Arkansas and Baptist Health), and provided the addresses for their registered
agents. Document No. 33. But it is now apparent that the Marshals Service
mixed-up the addresses and never properly served Baptist. The competing
motions - both grounded upon the faulty service - followed.
Both motions are denied because the fault for insufficient service lies
with the Marshals Service, not Coles. "[A] plaintiff proceeding in forma

pauperis is entitled to rely upon service by the U.S. Marshals and should not

be penalized for failure of the Marshal's Service to properly effect service of
process, where such failure is through no fault of the litigant." Rochon v.
Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987) (italics added); see also Lee v.
Brotherhood of Maintenance of Way Employees - Burlington Northern System
Federation, 139F.R.D. 376,379 (D. Minn. 1991) (collecting similar cases). When

Coles was granted in forma pauperis status, the responsibility for service
became the Court's. See 28 U.S.C. § 1915(d) (liThe officers of the court shall
issue and serve all process...."). Because Coles should not be penalized for
the Marshals' mistake, and because the Court sees no real prejudice to the
Defendants, the case should not meet an early fate based on this technicality.
Coles's motion for summary judgment, Document No. 45, and Baptist
Health's motion to dismiss, Document No. 47, are denied. For good cause, the
window for service is reopened. FED. R. CIV. P. 4(m). The United States
Marshals Service is directed to serve the summons and amended complaint
on Baptist Health through its registered agent, Russell D. Harrington, Jr., 9601
1-630, Exit 7, Little Rock, AR 72205, via certified mail, return receipt requested,
and is further directed to file proof of service by 27 January 2012.

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So Ordered.

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