Lebon v. St. Louis Metro Police Department et al

Filing 21

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that, as to defendant Thomas Scanlon in his individual capacity, the Clerk of Court shall issue process on the amended complaint under the Waiver of Service Agreement the Court maintains with the City of St. Louis City Counselors Office. IT IS FURTHER ORDERED that plaintiffs motion for default judgment [Doc. # 20 ] is DENIED, without prejudice. IT IS HEREBY CERTIFIED that an appeal from this Order would not be taken in good faith. See 28 U.S.C. § 1915(a)(3). Signed by Magistrate Judge Terry I. Adelman on 9/19/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

THOMAS PAUL LEBON,
Plaintiff,
v.
THOMAS SCANLON,
Defendant.

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No. 4:13-CV-256-TIA

MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion for default judgment against defendant
Thomas Scanlon, a City of St. Louis police officer [Doc. #20].
Background
Plaintiff filed this action on or about February 8, 2013, and requested permission
to proceed in forma pauperis. On March 14, 2013, the Court granted plaintiff in forma
pauperis status and instructed him to file an amended complaint [Doc. #5] and a
supplement [Doc. #10]. On July 3, 2013, the Court issued an Order of Partial
Dismissal [Doc. #14] and ordered the Clerk to serve process on defendant Thomas
Scanlon in his individual capacity [Doc. #13]. The Clerk prepared a summons for
defendant Scanlon and forwarded it to the Marshals Service on July 25, 2013 [Doc.
#18]. The Marshals Service filed a return of service on August 23, 2013 [Doc. #19].

The return of service indicates that the Marshals Service served a copy of the complaint
and summons on August 23, 2013, on “Natalie Henson, SLMPD Legal Dept.” There
is no indication that Natalie Henson is authorized by appointment or by law to receive
process on behalf of defendant Scanlon.

To date, counsel has not entered an

appearance on behalf of Thomas Scanlon, and said defendant has not filed a responsive
pleading to the complaint.
On September 16, 2013, plaintiff filed a motion for default judgment against
defendant Scanlon for “failure to respond to the twenty-one day service of entry.”
Discussion
Upon review of the file, the Court finds that defendant Thomas Scanlon was not
served in accordance with Rule 4(e) of the Federal Rules of Civil Procedure. Rule 4(e)
of the Federal Rules of Civil Procedure governs serving an individual or a government
official named in his or her individual capacity.
Rule 4(e)(1)-(2) states that service may be made on an individual by following
state law or by:
(A) delivering a copy of the summons and of the complaint to the individual
personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of
abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by
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law to receive service of process.
Fed. R. Civ. P. 4(e)(1)-(2). The August 23, 2013 service of process by the Marshals
Service was insufficient, because there is no indication that Natalie Henson is an “agent
authorized by appointment or by law to receive service of process” and because
defendant’s workplace is not his “dwelling or usual place of abode.” Moreover, the
Court notes that it appears the Marshal served a copy of the complaint, rather than the
amended complaint.1 Because the Marshals Service failed to serve process on
defendant in accordance with Rule 4(e), the Court has not acquired jurisdiction over
defendant Scanlon. See, e.g., Peterson v. Sheran, 635 F.2d 1335, 1337 (8th Cir. 1980).

Rather than issue an Order directing the Marshals Service to serve defendant
Scanlon in accordance with the Rules of Civil Procedure, the Court will instruct the
Clerk of Court to issue process under the Waiver of Service Agreement that the Court
maintains with the St. Louis City Counselor’s Office. In this regard, the Court takes
judicial notice of the fact that on August 31, 2013, control of the City of St. Louis

In its July 3, 2013 Memorandum and Order [Doc. #13], the Court ordered
the Clerk to issue process or cause process to be issued upon the amended
complaint.
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Police Department changed from the Board of Commissioners to the City of St. Louis.2

The St. Louis City Police Department falls under the St. Louis Department of
Public Safety. Given that the Court’s Waiver of Service Agreement states that certain
City of St. Louis officials and employees of the Department of Public Safety may be
covered under the Agreement, it appears that the St. Louis City Counselor’s Office may
elect to accept service of process on the in forma pauperis amended complaint filed in
the instant case. The Agreement further provides that waiver of service, or the refusal
to waive service, with respect to each named defendant will be stated in writing by the
St. Louis City Counselor’s Office. Thus, the Court presumes that if the City elects not
to accept service by waiver on behalf of defendant Scanlon, the City Counselor’s
Office will notify the Court of its decision, in writing.
Accordingly,
IT IS HEREBY ORDERED that, as to defendant Thomas Scanlon in his
individual capacity, the Clerk of Court shall issue process on the amended complaint
under the Waiver of Service Agreement the Court maintains with the City of St. Louis

In November 2012, Missouri voters approved the return of the City of St.
Louis Police Department to local control. Mayor Francis Slay signed an executive
order on August 31, 2013, officially accepting oversight of the Police Department
from the Board of Police Commissioners.
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City Counselor’s Office.
IT IS FURTHER ORDERED that plaintiff’s motion for default judgment
[Doc. #20] is DENIED, without prejudice.
IT IS HEREBY CERTIFIED that an appeal from this Order would not be
taken in good faith. See 28 U.S.C. § 1915(a)(3).

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE

Dated this 19th day of September, 2013.

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