Thornton v. Shinseki et al

Filing 20

ORDER granting 17 Motion to Dismiss for the reasons stated in the order. A judgment will be docketed in a separate docket entry to follow. Signed by District Judge Daniel P. Jordan III on December 16, 2011. (SP)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
DWAYNE THORNTON

PLAINTIFF

V.

CIVIL ACTION NO.: 3:10CV150-DPJ-FKB

ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS

DEFENDANT

ORDER
This cause is before the Court on motion [17] of the United States to dismiss pursuant to
Federal Rules of Civil Procedure 4(I) and 4(m) for failure to properly serve the United States.
Plaintiff never responded to the Government’s motion which is well-taken and granted.
The history of this case was set out in the Court’s October 21, 2011 Order [15] and is
incorporated by reference. In general, Plaintiff has never perfected service under Rule 4(I) of the
Federal Rules of Civil Procedure. That rule sets out the manner in which service of process must
be made on the United States and its agencies:
(1) Service upon the United States shall be effected
(A) by delivering a copy of the summons and of the complaint to the
United States attorney for the district in which the action is brought or to an
assistant United States attorney or clerical employee designated by the United
States attorney in a writing filed with the clerk of court or by sending a copy of
the summons and of the complaint by registered or certified mail addressed to the
civil process clerk at the office of the United States attorney and
(B) by also sending a copy of the summons and of the complaint by
registered or certified mail to the Attorney General of the United States at
Washington, District of Columbia, and
(C) in any action attacking the validity of an order of an officer or agency
of the United States not made a party, by also sending a cop of the summons and
of the complaint by registered or certified mail to the officer or agency.
(2)(A) Service on an agency or corporation of the United States, or an officer or
employee of the United States sued only in an official capacity, is effected by
serving the United States in the manner prescribed by Rule 4(i)(1) and by also
sending a copy of the summons and complaint by registered or certified mail to
the officer, employee, agency, or corporation.

(Emphasis added.) Thornton attempted to serve Defendant Eric K. Shinseki by certified mail; he
did not serve a copy of the summons and the complaint on the United States Attorney for the
Southern District of Mississippi or the Attorney General.
Plaintiff must serve process on Defendants within 120 days of the filing of the complaint
as required by Federal Rule of Civil Procedure 4(m). Here, Thornton filed this action on March
5, 2010, and received an extension until July 13, 2010, to serve process. The rule states that if
service is not perfected in this time, “the court—on motion or on its own after notice to the
plaintiff—must dismiss the action without prejudice . . . .” Fed. R. Civ. Pro. 4(m). In its prior
Order, the Court directed Plaintiff to show cause why his complaint should not be dismissed
without prejudice pursuant to Rule 4(m).
In response, Thornton filed a copy of a Return Receipt [19] reflecting delivery of two
items — one to “The Department of Justice, Office of the Attorney General for the Southern
District United States. . . Jackson, MS” and one to “United States Attorney’s Office, Southern
District of Mississippi . . . Jackson, Mississippi.” Assuming this represents delivery of the
summons and complaint, Thornton still did not comply with Rule 4(i)(1)(B) because he did not
serve the “Attorney General of the United States at Washington, District of Columbia.”
Thornton also filed a response to the Order, submitting that he was acting in good faith
and asking the Court to show leniency because he is proceeding pro se. As explained by the
Fifth Circuit Court of Appeals in Systems Signs Supplies v. United States Department of Justice,
Washington, D.C.,
To establish good cause, a litigant must demonstrate at least as much as would be
required to show excusable neglect, as to which simple inadvertence or mistake of
counsel or ignorance of the rules usually does not suffice. Additionally, the
claimant must make a showing of good faith and establish some reasonable basis
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for noncompliance within the time specified. [The plaintiff] relies on his pro se
status to support his claim that good cause existed for his failure to perfect
service. Additionally, he points to his repeated attempts to comply with the rules
as evidence of his good faith. The district court implicitly found that this was
insufficient to establish good cause.
Pro se status does not excuse a litigant’s complete failure to effect service. [The
plaintiff], however, attempted service on the federal defendants more than once
within the statutory period and each defendant apparently had actual notice of the
suit. Although the actual notice and his efforts, coupled with his pro se status,
arguably provide grounds for leniency in considering the technical imperfections
of service, we find that the district court did not abuse its discretion.
903 F.2d 1011, 1013 -1014 (5th Cir. 1990) (internal citations and quotations omitted).
Thornton argues that “the United States has knowledge of this civil matter and has
responded in opposition to the Default Motion request served upon The Department of Veterans
Affairs.” Pl.’s Response [16] ¶ 1(g). But Thornton has not submitted anything to substantiate
this assertion, and the first filing by the Assistant United States Attorney, a response [13] to
Thornton’s motion for default judgment, occurred eighteen months after suit was filed.
Conversely, in Systems Signs Supplies, an Assistant United States Attorney notified the pro se
plaintiff, prior to the expiration of the 120-day period, that he had not properly served the United
States, but the plaintiff took no further action. 903 F.2d at 1013. Thus, the Court could infer that
“each defendant apparently had actual notice of the suit” within the statutory period, but
nevertheless concluded dismissal was not an abuse of discretion. Id. at 1014. In the instant case,
there is no indication that defendants had actual notice of suit within the statutory period.
Essentially, Thornton’s only explanation for why he failed to properly serve the United
States within the time limit (and still has not properly served) is his pro se status. But pro se
status does not excuse a failure to effect service. See id. at 1014; see also Kersh v. Derozier, 851
F.2d 1509, 1512 (5th Cir. 1988) (“To hold that a pro se litigant’s ignorance of Rule 4(j) excuses
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his compliance with the rule would automatically excuse his failure to serve his defendants
timely. As the Ninth Circuit has written, ‘[t]o hold that complete ignorance of Rule 4(j)
constitutes good cause for untimely service would allow the good cause exception to swallow the
rule.’ Townsel v. County of Contra Costa, 820 F.2d 319, 320 (9th Cir. 1987). We conclude
therefore that the district court erred in denying [the defendant’s] motion to dismiss for
insufficient service of process.”).
Thornton to date has failed to serve process in compliance with Rule 4(i), the time do so
under Rule 4(m) (and the Court’s extension) has passed, and Plaintiff has not shown good cause
for his failure. As such, the Court finds this case should be dismissed without prejudice pursuant
to Rule 4(m).
A separate judgment will be entered in accordance with Rule 58.
SO ORDERED AND ADJUDGED this the 16th day of December, 2011.
s/ Daniel P. Jordan III
UNITED STATES DISTRICT JUDGE

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