F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
JUL 24 1997
TENTH CIRCUIT
PATRICK FISHER
Clerk
CHARLES W. CHESTER,
Plaintiff-Appellant,
v.
No. 97-1064
LEE GREEN, Disciplinary Hearing (D.C. No. 96-WM-1544)
Officer, Federal Bureau of Prison, North (District of Colorado)
Central Region; KATHLEEN HAWKS,
Director, Federal Bureau of Prison,
Defendants-Appellees.
ORDER
Before SEYMOUR, PORFILIO, and MURPHY, Circuit Judges.
This is an appeal from an order of the district court dismissing without prejudice
appellant’s pro se civil rights case for failure to obtain service within 120 days after the
filing of the complaint. Fed. R. Civ. P. 4(m). Mr. Chester claims to have established
proof of service because he filed with the district court “certified mail receipts” which the
district court did not recognize. The “receipts” in the record purport to show payment of
postage for certified mail sent to Kathleen Hawks and Lee Green and delivery of certified
mail to Ms. Hawks. There is no authenticating post office stamp on any receipt showing
they actually passed through the mails, nor is there a receipt or acknowlegment showing
actual delivery of the complaint to the purported defendants. Moreover, there is nothing
in the record indicating compliance with Fed. R. Civ. P. 4(i) pertaining to service upon
officers of the United States. Because the action was dismissed without prejudice, Mr.
Chester can file again and obtain proper service. We can find nothing erroneous in the
disposition made by the district court.
Mr. Chester faults the district court for making no effort to “arbitrate the case” or
“get the parties together on the phone to resolve the issue.” Having chosen to file a civil
action in the district court, Mr. Chester assumed the responsibility for complying with the
rules of civil procedure. The first requirement of those rules is to obtain service on the
defendants so the court would have jurisdiction over them. In the absence of such
jurisdiction, the court had no authority over the defendants, even to the extent of
“get[ting] the parties together.”
Mr. Chester has failed to comply with this court’s order to show cause why the
appeal should not be dismissed for failure to pay the assessment of fees made by the
clerk. In view of that failure the appeal is DISMISSED.
ENTERED FOR THE COURT
John C. Porfilio
Circuit Judge
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