Warren Lavell Jackson v. Warden, FCC Coleman USP

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DECEMBER 12, 2007
No. 07-10325 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00490-CV-OC-10-GRJ

WARREN LAVELL JACKSON,

Plaintiff-Appellant,

versus

WARDEN, FCC COLEMAN - USP,
Tracy Johns,
FORMER WARDEN STAN YATES,
STAFF ATTORNEY JEFFREY CAMPBELL,
JOHN DOE, #1,
JOHN DOE, #2,
et al.,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(December 12, 2007)
Before TJOFLAT, BLACK and KRAVITCH, Circuit Judges.

PER CURIAM:

Warren Lavell Jackson appeals the district court’s dismissal of his complaint

with prejudice. Although the district court noted that Jackson had failed to effect

proper service on the defendants, the court dismissed the complaint with prejudice

for failure to state a claim. For the reasons stated below, we vacate the dismissal

with prejudice and remand for the district court to dismiss without prejudice for

insufficient service of process.

I. Background

Jackson, an inmate at the Federal Correctional Complex in Coleman,

Florida, filed a complaint pursuant to Bivens v. Six Unknown Named Agents of

the Federal Bureau of Narcotics, 403 U.S. 388 (1971) against prison officials

claiming deprivation of his constitutional right of access to the courts for denying

his request to be transferred temporarily to state custody for the purpose of

testifying in his state habeas suit pursuant to a habeas corpus ad prosequendum

writ. Jackson named Warden Yates, Yates’ successor, Warden Johns, prison staff

attorney Campbell, and two John Does as defendants.

Jackson petitioned the district court for permission to proceed in forma

pauperis, but was denied because his prisoner account balance contained nearly

2
$3000. The district court issued a four page order advising Jackson of his

responsibility to serve Defendants properly and outlining the procedures that

would be involved in the lawsuit.

Jackson mailed, by certified mail, copies of the complaint and summons to

defendants Johns, Campbell, and Yates at the Coleman correctional facility where

Jackson is housed and where they work. Defendants Johns and Campbell received

the complaint there. Defendant Yates, who had retired, did not receive that mail

and, in fact, has never been served.

Upon review of the proofs of service filed by Jackson, the court issued an

order that Jackson had failed to meet the requirements for service of process and

directing Jackson to Rule 4 of the Federal Rules of Civil Procedure to determine

how proper service should be effectuated. The court also warned Jackson that

failure to serve the defendants properly would result in a dismissal of his case.

Defendants filed a motion to dismiss asserting that Jackson had failed to

state a claim upon which relief could be granted, and failed to effect sufficient

service of process. The district court granted this motion concluding that Jackson

had failed to allege a violation of a constitutional right.

II. Standard of Review

We review de novo a district court’s interpretation of Rule 4 of the Federal

3
Rules of Civil Procedure. Lepone-Dempsey v. Carroll County Comm’rs, 476 F.3d

1277, 1280 (11th Cir. 2007).

III. Discussion

It is undisputed that Jackson failed to serve the defendants properly. The

Federal Rules of Civil Procedure establish the proper method for serving an officer

of the United States sued in his individual capacity for acts occurring in connection

with performance of official duties for the United States. See Rule 4(i)(2)(B).

Rule 4(i)(2)(B) states that such officers must be served by delivering the complaint

and summons personally to the defendants, by leaving copies with a person of

suitable age residing at the defendant’s abode, or by delivery to an authorized

agent.1 See Rule 4(e). Jackson never had copies of the complaint and summons

delivered to Defendants in compliance with Rule 4,2 nor attempted to do so, nor

requested that United States Marshals be directed to do so pursuant to Rule 4(c)(2).

Additionally, the United States must be served by delivering a copy of the

summons and complaint to the United States Attorney for the district in which the

action is brought—or a designated assistant United States Attorney—and by

1
Rule 4(e) also allows for service pursuant to the law of the state in which the district
court is located. Florida law provides for service by methods included in the Federal Rules.
2
Although Defendants Johns and Campbell did actually receive the complaint and
summons, we note that actual notice of a suit does not dispose of the requirements of service of
process. See Manufacturers Hanover Trust Co. v. Ponsoldt, 51 F.3d 938, 940 (11th Cir.1995).

4
sending copies to the United States Attorney General in Washington, D.C. See

Rule 4(i)(1). Jackson has never attempted to serve the United States.

Because Jackson failed to serve defendants properly, we find that this case

should have been dismissed without prejudice. See Rule 4(m). It was, therefore,

improper for the district court to have reached the merits in this case and to have

issued a dismissal with prejudice. Pardazi v. Cullman Med. Center, 896 F.2d 1313,

1317 (11th Cir. 1990) (“Service of process is a jurisdictional requirement: a court

lacks jurisdiction over the person of a defendant when that defendant has not been

served.”). Although Rule 4(m) provides for extensions of time to be granted where

good cause is shown, we note that following his request for an extension of time to

serve Defendants, Jackson simply repeated service by certified mail to the

defendants’ places of work and never attempted to serve the United States.3

IV. Conclusion

For the foregoing reasons, the dismissal with prejudice is VACATED and

the case is REMANDED for entry of judgment consistent with this opinion.

3
We acknowledge that Jackson requested production of Defendant Yates’s address in
order to serve him. The court denied this motion as moot because the complaint failed to state a
claim. This motion should be reconsidered by the court upon remand.