United States Court of Appeals
For the First Circuit
No. 08-1380
NORMAN LAURENCE,
Plaintiff, Appellant,
v.
A.T. WALL, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
[Hon. Jacob Hagopian, Recalled U.S. Magistrate Judge]
Before
Lipez, Selya and Howard,
Circuit Judges.
Norman Laurence on brief pro se.
December 24, 2008
Per Curiam. Pro se appellant Norman Laurence,
incarcerated in the Adult Correctional Institution of the Rhode
Island Department of Corrections, appeals from a sua sponte order
of the district court dismissing his civil rights complaint,
without prejudice, for failure to effect timely service of process.
For the reasons explained below, we vacate the district court's
order and remand this matter.
On March 5, 2007, Laurence filed his suit in the United
States District Court for the District of Rhode Island, along with
his motion to proceed in forma pauperis ("IFP"). Appellant's IFP
motion was granted, but the magistrate judge recommended that
appellant's complaint be dismissed for failure to contain a short
and plain statement of the claim entitling him to relief under Fed.
R. Civ. P. 8(a)(2). Laurence moved to amend his complaint and, in
due course, on September 4, 2007, his second amended complaint was
docketed.
The district court entered an order directing the clerk
to send Laurence "the appropriate materials/forms/letters so that
he may effect service" on each named defendant and informing
Laurence that he must serve each of the defendants within 120 days
under Fed. R. Civ. P. 4(m). By letter, the clerk instructed
Laurence to serve the summons, complaint, two copies of the waiver
form, and a self-addressed return envelope, on each of the more
than 50 named defendants, all prison employees, through the
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prison's interdepartmental mail system. Neither the district
court's order nor the clerk's letter mentioned 28 U.S.C. § 1915(d)
or Fed. R. Civ. P. 4(c)(3).
Section 1915(d) provides that "[t]he officers of the
court shall issue and serve all process and perform all duties" for
plaintiffs granted IFP status. Fed. R. Civ. P. 4(c)(3) provides
that the district court "must" order service by the U.S. Marshal if
the plaintiff is authorized to proceed IFP under 28 U.S.C. § 1915.
Apparently unaware of section 1915(d) or Rule 4(c)(3), pursuant to
the court's order and the clerk's instructions, Laurence undertook
to assemble the summonses, copies of his complaint and waivers, as
well as a return envelope, for service on over 50 defendants by
interdepartmental mail. For reasons that are not wholly clear from
the record, Laurence failed to effect service on any defendant
within the 120 days specified by Rule 4(m).
On February 26, 2008, after reviewing Laurence's "offer
of proof" explaining the difficulties he faced attempting to serve
the defendants, the magistrate judge recommended that Laurence's
complaint be dismissed for insufficiency of process. In his timely
objection to the magistrate judge's report and recommendation,
Laurence requested "that I be allowed to have all defendants served
by the U.S. Marshals office" and he requested additional time in
which to serve his complaint. On March 11, 2008, the district
court dismissed Laurence's amended complaint, without prejudice,
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because Laurence "failed to serve properly a single defendant in
this case." The district court did not address Laurence's request
for additional time or for service by the United States Marshal.
We review for abuse of discretion. Lindsey v. U.S. Railroad
Retirement Bd., 101 F.3d 444, 445 (5th Cir. 1996).
Under Rule 4(m) of the Federal Rules of Civil Procedure,
when a plaintiff shows "good cause" for failing to effect service
within 120 days after the complaint is filed, "the court must
extend the time for service for an appropriate period." Each of
the appeals courts that have addressed the question have found that
a plaintiff proceeding IFP shows good cause when either the
district court or the United States Marshals Service fails to
fulfill its obligations under section 1915(d) and Rule 4(c)(3).
E.g., Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003);
Lindsey, 101 F.3d at 447; Byrd v. Stone, 94 F.3d 217, 219-20 (6th
Cir. 1996); Welch v. Folsom, 925 F.2d 666, 670 (3d Cir. 1991)
(Alito, J.); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990).
We join our sister circuits in so holding.
To the extent that some of our sister circuits suggest
that the IFP plaintiff must request service of process by the
United States Marshal or take other affirmative action to ensure
that service is effectuated, e.g., Romandette v. Weetabix Co.,
Inc., 807 F.2d 309, 311 (2d Cir. 1986), we believe that under the
plain language of section 1915(d) and Rule 4(c)(3), it is not
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necessary for the IFP plaintiff to request service of process by
the United States Marshal.1 The IFP plaintiff is, however,
required to cooperate with the court and the United States Marshal
in effectuating service, including providing the addresses of the
named defendants, if needed, and completing any necessary paperwork
and forms.
On the record before us, we find that the district court
abused its discretion in dismissing Laurence's amended complaint
for insufficiency of process. The district court's judgment is
vacated, and the matter is remanded for proceedings consistent with
this opinion.
So ordered.
1
The practice in the district courts of Massachusetts, New
Hampshire, and Puerto Rico appears not to require the IFP plaintiff
to make such a request. We note that unlike these district courts,
the website for the district court of Rhode Island contains no
instructions or guides for the pro se plaintiff and the court's
Local Rules do not explain Rule 4(c)(3). To the extent that the
district court of Maine requires the IFP plaintiff to file a motion
to request service by the U.S. Marshal, that practice is no longer
permitted under today's ruling.
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