UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-40049
(Summary Calendar)
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JUAN JORGE SANCHEZ,
Plaintiff-Appellant,
versus
ORLANDO PEREZ, ET AL,
Defendants,
DAVID STOCKLEY; SAUL CRUZ; MARTHA VILLAREAL
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Texas
(C-94-CV-180)
August 30, 1996
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Plaintiff Juan Jorge Sanchez, a prisoner with the Texas
Department of Corrections, appeals from the district court’s
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
dismissal of his 42 U.S.C. § 1983 suit. We affirm in part,
reverse in part, and remand for further proceedings.
I
Sanchez filed a complaint under 42 U.S.C. § 1983 against
Orlando Perez, Assistant Warden at the McConnell Unit; Patrick
Marion, the Captain in charge of disciplinary hearings; and
Correctional Officers Saul Cruz, David Stockley, and Martha
Villareal. The suit grew out of an altercation between Sanchez and
Officer Villareal. According to Sanchez, after he was handcuffed
and subdued, Officers Cruz and Stockley “body-slammed” Sanchez on
the floor and kept him there for fifteen to twenty minutes.2 After
the incident, Officer Villareal filed a disciplinary charge against
Sanchez, alleging that Sanchez had threatened a correctional
officer with bodily harm. Captain Marion conducted a hearing and
found Sanchez guilty of the charge. Sanchez was restricted to his
cell for fifteen days, lost his commissary privileges for forty-
five days, and lost thirty days of good-time credits.
Sanchez then filed this § 1983 suit, alleging that Officers
Cruz, Stockley, and Villareal had used excessive force in subduing
him, that Captain Marion had failed to conduct a hearing which
comported with the requirements of due process, and that Assistant
Warden Perez had failed to adequately train and discipline his
staff, which resulted in both the use of excessive force and the
2
In Officer Cruz’s affidavit, he referred to the incident as a “major
use of force.”
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denial of Sanchez’s due process rights. Sanchez sought both
equitable and monetary relief. The district court referred
Sanchez’s complaint to a magistrate judge. The magistrate judge
granted Sanchez’s motion to proceed in forma pauperis, and ordered
the U.S. Marshals Service to serve copies of the complaint on all
five defendants at the McConnell Unit. Only Assistant Warden Perez
and Captain Marion received service of process.3 Perez and Marion
filed an answer in the district court asserting qualified immunity,
and a motion for summary judgment complete with supporting
affidavits. The district court dismissed as frivolous Sanchez’s
claims against Assistant Warden Perez and Captain Marion. Finding
that the other three defendants had not been served, the district
court gave Sanchez twenty days to provide accurate addresses for
those defendants or his claims against them would be dismissed.
Sanchez filed objections to the judgment and a request for
extension of time with the magistrate. The magistrate judge
reviewed these objections and made a recommendation that Sanchez’s
claims be dismissed. Again Sanchez filed objections. The district
court adopted the findings of the magistrate judge, and dismissed
Sanchez’s suit against the other defendants for failure to timely
serve process. Sanchez now appeals.
3
The Marshals Service mailed the complaint and summons to each
defendant at their last known place of employment, the McConnell Unit of the
Texas Department of Corrections. Service for Cruz, Stockley, and Villareal were
marked “returned to sender, attempted-not known,” and returned to the Marshals
Service. Sanchez alleges that he was never informed of any defect in the service
of process.
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II
We review a district court’s decision to dismiss for failure
to serve process for abuse of discretion. Traina v. United States,
911 F.2d 1155, 1157 (5th Cir. 1990). Dismissals for failure to
timely serve process are governed by FED. R. CIV. P. 4(m), and pro
se litigants are not excused from its requirements. Espinoza v.
United States, 52 F.3d 838, 840 (10th Cir. 1995). Rule 4(m)
provides that service must be made within 120 days of the filing of
the complaint, and dismissals must be without prejudice. A
district court may order a dismissal under Rule 4(m) even where it
will operate as “with prejudice” because the statute of limitations
has run. Norlock v. City of Garland, 768 F.2d 654, 658 (5th Cir.
1985). However, the rule provides that if a plaintiff shows “good
cause” for failure to serve process within the specified time, “the
court shall extend the time for service for an appropriate period.”
FED. R. CIV. P. 4(m).4
After carefully reviewing the record, we hold that the
district court abused its discretion in dismissing Sanchez’s claims
against Officers Cruz, Stockley, and Villareal for failure to
timely serve process. In this case, the magistrate judge ordered
the Marshals Service to effectuate service of process. As we have
previously held, “a plaintiff proceeding in forma pauperis is
4
Good cause requires a plaintiff to show “some reasonable basis for
noncompliance within the time specified.” Kersh v. Derozier, 851 F.2d 1509, 1512
(5th Cir. 1988) (internal quotation marks omitted).
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entitled to rely upon service by the U.S. Marshals and should not
be penalized for failure of the Marshals 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);
see also Sellers v. United States, 902 F.2d 598, 602 (7th Cir.
1990) (holding that “indigent prisoner representing himself is
entitled to rely on the Marshal to achieve service of process”).
Here, the failure to effectuate service of process was through no
fault of Sanchez. Sanchez provided the Marshals Service with the
last known work address of Cruz, Stockley, and Villareal. The
Marshals Service never informed Sanchez that there had been a
problem serving those defendants.5 In addition, once the district
court had threatened to dismiss Sanchez action for failure to
timely serve process, Sanchez attempted, in several ways, to obtain
the new addresses of these Corrections Officers.6 On these
particular facts, we hold that the district court abused its
5
We further note that months after the Marshals Service had failed to
serve Cruz, Stockley, and Villareal at the McConnell Unit, defendants Perez and
Marion filed a FED. R. CIV. P. 26 “Disclosure to Plaintiff,” giving the names and
addresses of “each individual likely to have discoverable information” relevant
to the case. In this disclosure, which Rule 26 requires to be accurate to the
best of the litigants’ knowledge, Assistant Warden Perez and Captain Marion
continued to list the McConnell Unit as the proper address of Cruz, Stockley, and
Villareal. It is unclear from the record why this disclosure did not reflect the
fact that Cruz, Stockley, and Villareal had left the McConnell Unit.
6
Sanchez apparently could get no response from the Texas Department
of Corrections on the current whereabouts of Cruz, Stockley, and Villareal. As
the Seventh Circuit has noted, the reluctance to disclose prison guards’
addresses is not surprising because “prisoners aggrieved by guards’ conduct may
resort to extra-legal weapons after release if they do not deem the results of
the litigation satisfactory.” Sellers v. United States, 902 F.2d 598, 602 (7th
Cir. 1990).
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discretion in dismissing Sanchez’s claims against Officers Cruz,
Stockley, and Villareal for failure to timely serve process.7
III
For the foregoing reasons, we AFFIRM the district court’s
order dismissing as frivolous Sanchez’s claims against defendants
Perez and Marion. We REVERSE the district court’s order dismissing
Sanchez’s claims against Cruz, Stockley, and Villareal, for failure
to timely serve process and REMAND for further proceedings.
7
We affirm the dismissal of Sanchez’s claims against Assistant Warden
Perez and Captain Marion, for essentially the reasons stated in the district
court’s Order Dismissing Claims, dated August 24, 1995. Sanchez has simply
failed to allege any legal theory upon which he could recover against Perez or
Marion, and therefore his suit as to these two defendants is frivolous under 28
U.S.C. § 1915(d). See Booker v. Koonce, 2 F.3d 114, (5th Cir. 1993) (noting that
under § 1915(d), claims are frivolous if based upon meritless legal theory).
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