Chisolm v. 1st Battalion 75th Regiment Employees of the US Army

Filing 7

ORDER re 6 Response to Order filed by Har'rell Chisolm. The Court again declines to order Marshal service. If plaintiff contends that he is unable to perfect service according to the terms of Rule 4(i) within the previously extended deadli ne, he may renew his motion for Marshal service, including a full explanation of his attempts to serve the United States pursuant to Rule 4(i)(l) and/or the relevant agencies or employees pursuant to Rule 4(i)(2) or (3). Signed by Magistrate Judge G. R. Smith on 10/05/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

SAVANNAH DIVISION

u S. DISTRICT COimT

Olstriet of Ga.

FUad

Qifsca

HAR'RELL CHISOLM,PA

Plaintiff,
CV417-159

V.

1ST BATTALION 75TH REGIMENT

EMPLOYEES OE THE U.S. ARMY,
Defendants.

ORDER

The Court is again confronted with pro se plaintiff Har'rell

Chisholm's difficulty perfecting service on the defendants. The Court
denied his original request for service by a United States Marshal
because he is not among those entitled to such service, under Fed. R. Civ.

P. 4(c)(3), and he did not indicate any attempt at private service. See
doc. 5.

Plaintiff now renews his request and indicates that he

unsuccessfully attempted service. See doc. 6.
Plaintiffs "Proof of Attempt of Service," which the Court construes
as a renewal of his motion for Marshal service, indicates that a Chatham

County, Georgia Sheriffs deputy attempted to serve "JAG" (presumably
an office of the Army's Judge Advocate General's Corps) and was

informed that "they will only accept service by Federal Marshal." Doc. 6

at 1.^ Plaintiff now seeks Marshal service because "there is no other

acceptance of service the JAG office at Hunter Army Airfieldf] will
allow." Id.

The Federal Rules of Civil Procedure provide specific instructions

for serving the United States or "Its Agencies, Corporations, Officers, or
Employees." See Fed. R. Civ. P. 4(i). Without expressing any opinion on

whether the defendants, as identified in the Complaint, are properly

named or subject to suit,^ it appears that all are agencies or employees of

^ The proof of service that plaintiff has submitted does reflect £in unsuccessful service
attempt, but the reason listed is illegible. See doc. 6 at 3. The submitted proof of
service doesn't provide any further indication of where service was attempted or why
it was refused.

^ The Court is not convinced that it has jurisdiction over plaintiffs claims. He
invokes the Court's subject matter jurisdiction under 28 U.S.C. §§1381 (presentation
of a federal question) and 1343 (jurisdiction over civil rights claims). Doc. 1 at 2. His
substantive claims include "intentional infliction of emotional distress, wrongful

death, [and] gross negligence," arising out of his son's death while serving as a
member of the United States Army Rangers and he seeks money damages. See id.at
4 (listing claims), 25-26 (seeking $300,000,000 in compensatory and punitive
damages). Those claims appear to implicate the Court's jurisdiction under the
Federal Tort Claims Act. See 28 U.S.C. § 1346(b)(1)(providing exclusive jurisdiction
in United States District Courts of "civil actions on claims against the United States .
. . for .. . personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or
employment, under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act
or omission occurred."). However, the United States Supreme Court has interpreted
the Act to exclude "injuries to servicemen where the injuries arise out of or are in the
course of activity incident to service." Feres v. United States, 340 U.S. 135, 146
(1950).

the United States.

The information in plaintiffs motion does not

indicate any attempt to comply with the provisions of Rule 4(i).
The Court again declines to order Marshal service. If plaintiff
contends that he is unable to perfect service according to the terms of
Rule 4(i) within the previously extended deadline, he may renew his
motion for Marshal service, including a full explanation of his attempts

to serve the United States pursuant to Rule 4(i)(l) and/or the relevant
agencies or employees pursuant to Rule 4(i)(2) or (3).

SO ORDERED,this^ day of October, 2017.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

Plaintiffs Complaint indicates that his son's death may have occurred during
"training" undertaken as a Ranger. See, e.g., doc. 1 at 13-17 (indicating that
plaintiffs son was injured during a parachute training exercise). However, the
Complaint also includes allegations which imply that plaintiff does not accept that
explanation. See id. at 17 (stating "Plaintiff only had to prove that his physically ill
son SSgt Avonye' Chisholm was not on a parachute training proficiency jump, the
evidence and exhibits shows he physically could not [sic]."). It is not clear whether,
as a whole, the allegations are sufficient to survive a jurisdictional challenge, asserted
either by the Court, sua sponte, or by a defendant. See Fed. R. Civ. P. 12(h)(3) ("If
the court determines at any time that it lacks subject-matter jurisdiction, the court
must dismiss the action."); Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
("[CJourts . . . have an independent obligation to determine whether subject-matter
jurisdiction exists, even in the absence of a challenge from any party.").
Given the complexity of plaintiffs' allegations, the Court will not act on its
jurisdictional concerns until the more immediate issues of service are resolved. If
plaintiff is unable to perfect service through private means, however, a more
thorough examination of the basis of the Court's jurisdiction may be undertaken
before it authorizes the expenditure of public resources.