Olsen v. Mapes

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JUN 26 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

TOM OLSEN and NAOMI OLSEN,

Plaintiffs - Appellants,
v.
No. 02-2226
PAUL MAPES; ROBERT BABCOCK;
and THE NEW MEXICO BOARD OF
PHARMACY,

Defendants - Appellees.

Appeal from the United States District Court
for the District of New Mexico
D.C. No. CIV-01-563 MCA/RLP

Submitted on the briefs: *

Tom Olsen and Naomi Olsen, pro se.

Before EBEL, HENRY and HARTZ, Circuit Judges.

EBEL, Circuit Judge.

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case
therefore is ordered submitted without oral argument.
 Plaintiffs Tom and Naomi Olsen (“Plaintiffs”), proceeding pro se, brought

this action in the United States District Court for the District of New Mexico

against attorney Robert Babcock and Administrative Law Judge Paul Mapes. In a

Second Amended Complaint, Plaintiffs also attempted to add the New Mexico

Board of Pharmacy (“Board”) as a defendant.

On October 16, 2002, the district court entered its Amended Order of

Dismissal with Prejudice, disposing of all of Plaintiffs’ claims. With respect to

Defendant Babcock, the court found that it had no personal jurisdiction. With

respect to Defendant Mapes, the court found that Plaintiffs had consistently failed

to comply with the court’s orders to perfect service in accordance with Federal

Rule of Civil Procedure 4(i) and dismissed the claims against Mapes. Because

Plaintiffs had failed to comply with the district court’s orders regarding service

on Defendant Mapes, the district court struck Plaintiffs’ Second Amended

Complaint, thereby dismissing their claims against the Board.

On appeal, Plaintiffs argue that their claims against Defendants Mapes and

the New Mexico Board of Pharmacy should not have been dismissed. 1 They note

that, because they are proceeding in forma pauperis, the district court had ordered

1
Defendant Babcock moved to dismiss the case against him for lack of
personal jurisdiction, arguing that he had no significant contacts with the state of
New Mexico. Plaintiffs do not contest his dismissal on appeal.

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the U.S. Marshal to complete service on their behalf. Thus, they argue, any

failure to perfect service was the responsibility of the U.S. Marshal, not of

Plaintiffs. Alternatively, Plaintiffs argue that they did perfect service on

Defendant Mapes and that any defect in such service was not so serious as to

warrant dismissal of the action with prejudice. Because the record reflects that

the U.S. Marshal was in fact ordered to perfect service on Defendant Mapes, we

REVERSE the dismissal of Plaintiffs’ claims against Mapes and REMAND for

further proceedings. We also REVERSE the striking of Plaintiffs’ Second

Amended Complaint and REMAND for the district court to consider it in

accordance with Federal Rule of Civil Procedure 15.

I. Background

On May 18, 2001, Plaintiffs Tom and Naomi Olsen initiated this action in

the United States District Court for the District of New Mexico, naming

Defendants Paul Mapes and Robert Babcock. Plaintiff Tom Olsen is also the

plaintiff in an administrative proceeding brought under the Longshore Harbor

Worker’s Compensation Act, which is currently pending before Defendant Mapes,

who is an Administrative Law Judge. Defendant Babcock is an attorney who

represents Olsen’s former employer, Triple A Machine Shop, Inc., in that

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proceeding. Plaintiffs’ claims in this action arise from the conduct of Mapes and

Babcock in the administrative proceeding.

On May 24 and June 19, 2001, United States Magistrate Judge Leslie Smith

granted Plaintiffs’ respective Applications to Proceed In Forma Pauperis. Noting

Plaintiffs’ pauper status, Judge Smith then entered orders on May 30 and June 21,

2001, directing the U.S. Marshal “to serve the summons and complaint personally

on defendants as directed by the clerk.” (Record on Appeal (“ROA”), Docs. 3, 4.)

Because Defendant Mapes is a United States Administrative Law Judge,

Plaintiff was required to serve him in accordance with Federal Rule of Civil

Procedure 4(i). Rule 4(i) requires that service on officers of the United States be

made on both the United States and the officer. Fed. R. Civ. P. 4(i)(2). Rule

4(i)(1) describes service upon the United States as follows:

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 the 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 copy

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 of the summons and of the complaint by registered or certified mail
to the officer or agency.

Fed. R. Civ. P. 4(i)(1).

Service on the officer depends on whether the officer is sued in an official

or individual capacity. If the officer is sued in an official capacity, the plaintiff

may serve him or her by “sending [the officer] a copy of the summons and

complaint by registered or certified mail.” Fed. R. Civ. P. 4(i)(2)(A). If the

officer is sued in an individual capacity, service must be perfected “in the manner

prescribed by Rule 4(e), (f), or (g).” Id. 4(i)(2)(B).

Thus, in this case, to perfect service on Mapes, Plaintiffs would be required

to deliver a copy of the summons and complaint to the United States attorney for

the District of New Mexico (or to an assistant United States attorney or clerical

employee designated by that United States attorney). They would further be

required to send a copy of the summons and complaint by registered or certified

mail to the United States Attorney General. Finally, they would be required to

serve Defendant Mapes by sending him a copy of the summons and complaint by

registered or certified mail (if he is sued only in his official capacity) or by

serving him in accordance with the standard rules of personal service articulated

in Rule 4(e) (if he is sued in his individual capacity).

In November 2001, Plaintiffs’ case was transferred to United States District

Judge Martha Vazquez. On December 18, 2001, she entered an order denying

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several motions that Plaintiffs submitted following their initial complaint. Her

order advised Plaintiffs that their “service of process was inadequate, as it failed

to specify which method of service was used and listed several possible methods

of service, such as U.S. mail and/or Federal Express.” (ROA, Doc. 13 at 3.) It

further instructed them “to carefully read and comply with the Federal Rule of

Civil Procedure with regard to the proper method of service of process” and “to

follow Fed. R. Civ. P. 4(i) when serving Officers of the United States (which

includes Judicial Officers and U.S. Attorneys).” (Id.) It reminded them that

“service must be completed either by certified mail or in person when serving a

U.S. Attorney under Fed. R. Civ. P. 4(i).” (Id.) This order did not mention

Judge Smith’s order directing the U.S. Marshal to perfect service.

On March 15, 2002, the case was transferred again to District Judge M.

Christina Armijo. On this same date, Plaintiffs filed an Amended Complaint, still

naming only Defendants Mapes and Babcock. On June 5, 2002, without

requesting leave to amend, Plaintiffs filed a Second Amended Complaint, naming

Defendants Mapes and Babcock and adding the New Mexico Board of Pharmacy.

On June 7, 2002, the Plaintiffs filed a “Request for Judicial Determination

of Service or, in the Alternative, Motion for Default Judgment,” asking “that the

court make a determination of service upon the Federal Defendants/Respondents,

as they have been served in excess of three times, all with the response that

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service was ‘inadequate’.” (ROA, Doc. 25 at 1.) Plaintiffs argued that pursuant

to Judge Vazquez’s order, they had served Defendants via certified mail and in

person. They submitted four unsigned certified mail receipts and a copy of the

“Proof of Service” attached to their Amended Complaint. The Proof of Service

was stamped as received by the U.S. Attorney’s Office in Albuquerque, New

Mexico, on March 15, 2002.

On June 12, 2002, Defendant Mapes filed a “Notice of Non Service on

Government Defendants,” stating that Plaintiffs had failed to properly serve the

United States in accordance with Fed. R. Civ. P. 4(i) and failed to properly serve

their Second Amended Complaint on the office of the United States Attorney for

the District of New Mexico. This Notice did not mention any specific failure by

Plaintiffs—it merely states that service was not proper or in conformance with

Rule 4(i).

On June 27, 2002, Judge Armijo entered an order finding that

Plaintiffs have failed to make a sufficient showing that all officers,
employees, agencies, and/or locations of the United States required to be
served pursuant to Fed. R. Civ. P. 4(i) have been properly served in this
case. In this regard, the Court notes Plaintiffs’ failure to produce the
signed return receipts for certified mail evidencing the receipt of the
mailing by each such officer, employee, agency, and/or location of the
United States.

(ROA, Doc. 27 at 1.) She ordered Plaintiffs to “complete service of the Summons

and Second Amended Complaint upon each officer, employee, agency, and/or

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location of the United States required to be served under Fed. R. Civ. P. 4(i)

within fifteen (15) days” and to “file sufficient proof of service at that time as

well.” (Id. at 2.) Plaintiffs were advised that “failure to comply with this

directive may result in the Court dismissing the complaint.” (Id.)

On July 15, 2002, in response to Judge Armijo’s order, Plaintiffs filed their

“Proof of Service as Ordered by the Court.” To prove service, they attached as

Exhibit 1 a copy of the first page of their Second Amended Complaint stamped

received by the U.S. Attorney’s Office in Albuquerque, New Mexico on July 1,

2002, and signed by Assistant U.S. Attorney Mitchell.

On July 31, 2002, Judge Armijo entered an Order dismissing this case with

prejudice. She found that Plaintiffs had not complied with her order or with the

order of Judge Vazquez to perfect service in accordance with Rule 4(i).

Specifically, she found that Plaintiffs had never served the United States Attorney

General. She further found that the proof offered by Plaintiffs of service on the

U.S. Attorney for the District of New Mexico was insufficient. In making this

finding, the district court noted a discrepancy in dates pertaining to the service of

Plaintiffs’ July 15, 2002 Response. 2

2
However, the court did not comment on Exhibit 1 to Plaintiffs’ Response,
which apparently shows that their Second Amended Complaint was served on the
U.S. Attorney’s Office for the District of New Mexico and signed by an Assistant
United States Attorney from that office. Even so, Exhibit 1 could not have
(continued...)

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 Judge Armijo concluded that involuntary dismissal of this action with

prejudice under Fed. R. Civ. P. 41(b) was appropriate “because Plaintiffs

repeatedly have failed to comply with the procedural rules and orders of this

Court”:

The Court repeatedly ordered Plaintiffs to complete service of
process upon the United States as required under Fed. R. Civ. P. 4(i).
Despite having the benefit of specific instructions from the Court in two
different instances and being warned of the consequences of their failure to
comply, Plaintiffs failed to execute proper service of process on the United
States for more than a year. This failure causes interference with the
judicial process and is prejudicial to other parties. In addition, the repeated
failure to comply with the Court’s orders and multiple violations of the
Court’s procedural rules indicates a high degree of culpability and a low
probability that a lesser sanction would be effective. . . . Plaintiffs have
been given reasonable and adequate opportunity to comply with the Court’s
directives and the Rules of Civil Procedure; they have failed to do so.

(ROA, Doc. 30 at 4,5.) It thereby dismissed the action with prejudice.

Plaintiffs filed a notice of appeal. This Court requested clarification from

the district court as to whether the action had been dismissed against all

defendants. The district court subsequently entered an Amended Order of

Dismissal with Prejudice, clarifying that all parties and claims had been

dismissed. With respect to the New Mexico Board of Pharmacy, it clarified that

2
(...continued)
completely satisfied Plaintiffs’ service obligation because Rule 4(i) also requires
service upon the Attorney General of the United States. Nevertheless, it does
reflect at least partial compliance with the service requirements.

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Plaintiffs’ Second Amended Complaint was stricken because of Plaintiffs’ failure

to comply with the court’s orders regarding the service of Defendant Mapes.

II. Discussion

Pursuant to Federal Rule of Civil Procedure 41(b), a district court may

dismiss an action with prejudice if the plaintiff fails to “to comply with [the

Federal Rules of Civil Procedure] or any order of court.” 3 A district court may

dismiss an action under Rule 41(b) after finding that certain enumerated criteria

support a dismissal. These criteria include “(1) the degree of actual prejudice to

the defendant; (2) the amount of interference with the judicial process; (3) the

culpability of the litigant; (4) whether the court warned the party in advance that

dismissal of the action would be a likely sanction for noncompliance; and (5) the

efficacy of lesser sanctions.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.

1994) (quoting Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992)). We

review such a dismissal for an abuse of discretion. Id.

In this case, the district court dismissed Plaintiffs’ claims against

Defendants Mapes and the New Mexico Board of Pharmacy for Plaintiffs’ failure

to comply with Rule 4(i) and the court’s repeated orders for Plaintiffs to perfect

3
Although the language of Rule 41(b) requires that the defendant file a
motion to dismiss, the Rule has long been interpreted to permit courts to dismiss
actions sua sponte for a plaintiff’s failure to prosecute or comply with the rules of
civil procedure or court’s orders. Link v. Wabash R.R. Co., 370 U.S. 626, 630-31
(1962).

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service on Mapes in compliance with that rule. On appeal, Plaintiffs argue that

the district court ordered the U.S. Marshal to perfect service and that any failure

to perfect service in accordance with the rules is the responsibility of the Marshal.

We agree.

The principal criterion on which the district court relied was the culpability

of the Plaintiffs. We find that Plaintiffs were not sufficiently culpable to warrant

dismissal of their action. When a plaintiff is granted in forma pauperis status, the

district court is required to serve process for the plaintiff. See 28 U.S.C.

§ 1915(d) (“The officers of the court shall issue and serve all process, and

perform all duties in [in forma pauperis] cases. . . .) (emphasis added); Fed. R.

Civ. P. 4(c)(2) (the appointment of a U.S. marshal or other officer to perfect

service “must be made when the plaintiff is authorized to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915 . . . .”) (emphasis added). In accordance

with these requirements, U.S. Magistrate Judge Leslie Smith entered orders

granting Plaintiffs in forma pauperis status and ordering that the U.S. Marshal

perfect service as directed by the clerk. Thus, the responsibility for the failure to

serve Defendant Mapes rests with the Marshal or with the district court, not with

Plaintiffs.

Numerous circuits have held that good cause exists to excuse a plaintiff’s

failure to serve where the plaintiff is proceeding in forma pauperis and is

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therefore entitled to rely on service by the U.S. Marshal. Moore v. Jackson, 123

F.3d 1082, 1085-86 (8th Cir. 1997); Byrd v. Stone, 94 F.3d 217, 219-20 (6th Cir.

1996); Dumaguin v. Sec’y of Health & Human Servs., 28 F.3d 1218, 1221 (D.C.

Cir. 1994); Puett v. Blandford, 912 F.2d 270, 275 (9th Cir. 1990); Sellers v.

United States, 902 F.2d 598, 602 (7th Cir. 1990); Romandette v. Weetabix Co.,

807 F.2d 309, 311 (2d Cir. 1986). 4 Because there is no evidence in the record

that Plaintiffs failed to cooperate with the U.S. Marshals or were otherwise not

entitled to their service, we find they were not culpable for their failure to comply

with the Federal Rules of Civil Procedure or the court’s orders. Cf. Johnson v.

U.S. Postal Serv., 861 F.2d 1475, 1479-80 (10th Cir. 1988) (holding that the U.S.

Marshal could not be held accountable for plaintiff’s failure to serve where

plaintiff’s complaint named the wrong defendant).

Second, although Plaintiffs were entitled to rely on the service by the U.S.

Marshal, they nevertheless demonstrated sincere efforts to comply with the

court’s orders. All of the papers filed by Plaintiffs contain “Proof of Service”

4
Some courts have suggested that a plaintiff proceeding in forma pauperis
must request service by the U.S. Marshal to be entitled to such service. See, e.g.,
Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992); Boudette v. Barnette, 923
F.2d 754, 756-57 (9th Cir. 1990); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th
Cir. 1987). These cases, however, rely on an earlier version of Rule 4(c), which
indicated that such a request was necessary. Young, 960 F.2d at 359; Boudette,
923 F.2d at 756; Rochon, 828 F.2d at 1109 n.1. The current version of Rule 4
does not indicate that a request is necessary. Fed. R. Civ. P. 4(c)(2).

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attachments, which indicate that the papers were mailed to the Defendants or their

counsel. Plaintiffs themselves moved the court for a determination of whether

service was proper and filed a “Proof of Service” when required by the district

court.

Rule 4(i) is a lengthy and complicated rule. Neither of the district court’s

orders provided specific instructions to Plaintiffs as to how to correct the defects

in their service. Without such specific instructions, it is understandable that a pro

se litigant might fail to fulfill all of Rule 4(i)’s requirements. Nevertheless, the

record is replete with Plaintiffs’ attempts to comply with the rule. Their inability

to do so is not sufficient grounds on which to dismiss their action.

Considering the remaining criteria for Rule 41(b) dismissal, we find that

none weigh substantially in favor of dismissing this action. Because the

Defendants have not even been served yet, prejudice to them is minimal. The

judicial process has suffered some delay, but, as described above, we have

concluded that such delay was the fault of the court or the U.S. Marshal.

Similarly, although the district court warned Plaintiffs of dismissal if their failure

to serve Defendants persisted, it was not their responsibility to perfect service in

the first instance. Finally, we need not consider the efficacy of lesser sanctions

because there was no need for the district court to sanction Plaintiffs.

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 Thus, we find that the district court abused its discretion in dismissing

Plaintiffs’ action with prejudice. We REVERSE the dismissal of Plaintiffs’

claims against Mapes and REMAND to the district court for further proceedings.

The court should ensure that service is perfected on Defendant Mapes by the U.S.

Marshal in accordance with Rule 4(i) as ordered by Magistrate Judge Smith.

We also REVERSE the dismissal of Plaintiffs’ claims against the New

Mexico Board of Pharmacy for Plaintiffs’ failure to comply with the court’s

orders. We realize that Plaintiffs attempted to add this Defendant in a Second

Amended Complaint. On remand, the district court should consider whether it

will grant leave for this amendment pursuant to Federal Rule of Civil Procedure

15(a).

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