*

After an examination of the briefs and the record, we have concluded that oral

argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See

Fed. R. App. P. 34(a)(2).

 

United States Court of Appeals

For the Seventh Circuit

Chicago, Illinois 60604

Submitted September 26, 2007*

Decided October 5, 2007

Before

Hon. FRANK H. EASTERBROOK, Chief Judge

Hon. JOHN L. COFFEY, Circuit Judge

Hon. JOEL M. FLAUM, Circuit Judge

No. 07-1653

GABRIEL GRIFFIN and INEZ

GRIFFIN,

Plaintiffs-Appellants,

v.

STATE OF WISCONSIN, et al.,

Defendants-Appellees.

Appeal from the United States

District Court for the Eastern District

of Wisconsin 

No. 06-C-203

Rudolph T. Randa,

Chief Judge. 

O R D E R

Inez Griffin and seven other residents of the City of Milwaukee, Wisconsin,

filed a rather wide-ranging lawsuit claiming that state, county, and city officials

violated their civil rights. The district court dismissed the action after concluding

that none of the defendants had been served properly. Griffin and one other

plaintiff filed a notice of appeal, but she alone filed a brief and thus is the only

NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with

 Fed. R. App. P. 32.1
No. 07-1653 Page 2

appellant before us. See Navin v. Park Ridge Sch. Dist. 64, 270 F.3d 1147, 1149

(7th Cir. 2001) (holding that pro se litigants may not proceed on behalf of another);

Lewis v. Lenc-Smith Mfg. Co., 784 F.2d 829, 830-31 (7th Cir. 1986). We affirm the

judgment.

Griffin, who also goes by the name Isis Ariel Magdalah, was arrested in

August 2004 at a public library in Milwaukee. Criminal charges were filed, but

Griffin has not disclosed the nature or status of those charges. In the civil

complaint, which was filed in February 2006, Griffin names as defendants a city

police officer, an assistant city attorney, two assistant district attorneys, two

Milwaukee County circuit judges, and a circuit-court commissioner. These

defendants were personally involved in Griffin’s criminal matter, but Griffin also

names as defendants the State of Wisconsin and its governor and former attorney

general, as well as the Milwaukee County Circuit Court, the City of Milwaukee, and

the city’s mayor and police chief. The remaining defendants are implicated only in

claims brought by other plaintiffs and are not relevant to this appeal.

None of the appellees answered the complaint. The chief of police and the

individual officer successfully opposed the plaintiffs’ motion for a default judgment

on the basis of defective service of process. The State of Wisconsin and its officials

moved to dismiss on various grounds, principally immunity. That motion was

joined by the assistant district attorneys, the judges, the court commissioner, and

the Milwaukee County Circuit Court. The City of Milwaukee, its mayor, and the

assistant city attorney also contested service of process and moved to dismiss on

that ground. The district court granted that motion in January 2007 and, at the

same time, ordered that by February 12 the plaintiffs either establish that they had

served the complaint and summons on the remaining defendants or articulate good

cause for any lapse in service. Failure to do so, the court warned, would result in

dismissal of any unserved defendant. Instead of complying with this directive, the

plaintiffs informed the court that their affidavits of service already on file with the

clerk constituted sufficient proof of timely service of process. The district court

rejected that contention and on February 15, 2007, dismissed the complaint as

against the remaining defendants.

On appeal Griffin first contends that the district court erred in finding that

the three affidavits submitted by the plaintiffs’ process servers do not constitute

proof of timely service of process. We review a dismissal for insufficiency of service

of process for abuse of discretion. See Coleman v. Milwaukee Bd. of Sch. Dirs., 290

F.3d 932, 934 (7th Cir. 2002); Tuke v. United States, 76 F.3d 155, 157 (7th Cir.

1996). Griffin correctly notes that an affidavit is the proper form for proof of

service, see Fed. R. Civ. P. 4(l), but a review of the record demonstrates that the

plaintiffs’ affidavits attest only to service of the complaint—not the summons. 

Federal Rule of Civil Procedure 4 requires that a plaintiff serve a summons and a
No. 07-1653 Page 3

complaint upon each defendant and provide proof of doing so to the court. See Fed.

R. Civ. P. 4(c)(1), (l). As the district court explained in its January 2007 order, the

plaintiffs had provided proof of serving the defendants with a copy of the complaint

but not proof of serving them with a summons. Because the affidavits the plaintiffs

relied upon are inadequate, and because the district court identified the problem

and gave the plaintiffs time to cure it, we cannot agree with Griffin that the court

“refused to consider the record reflecting the [p]rocess [s]ervers’ affidavits as it

related to service.” We find no error in the district court’s review of the record in

determining whether service of process was sufficient. See Troxell v. Fedders of N.

America, Inc., 160 F.3d 381, 382-83 (7th Cir. 1998) (holding that a district court did

not abuse its discretion by refusing to extend the time for service of process where

no good cause was shown).

Griffin also argues that the district court improperly denied the plaintiffs’

request for a hearing on the sufficiency of service of process. We note that the

district court complied with the notice provision of Rule 4(m) by informing the

plaintiffs of its intention to dismiss the action absent proof of service of process or

good cause. Rule 4, though, does not contemplate a mandatory hearing. See Fed. R.

Civ. P. 4. Nor does Griffin cite any authority that would compel a district court to

conduct a hearing. While a hearing may be appropriate where litigants have filed

inconsistent affidavits regarding service of process, see, e.g., Robinson Eng’g Co.

Ltd. Pension Plan and Trust v. George, 223 F.3d 445, 447-49, 453 (7th Cir. 2000),

there is no requirement that a district court grant a plaintiff’s request for a hearing

on sufficiency of service of process under these circumstances. At the heart of

Griffin’s argument is the notion that the plaintiffs somehow were denied an

adequate opportunity to persuade the district court that service of process was

sufficient. Yet the district court gave the plaintiffs nearly four weeks to furnish

additional proof of service of process or to articulate good cause for their failure to

effect service. No hearing was required.

Finally, Griffin argues that at least some of the defendants waived any

objection to the defective service of process by omitting that contention from their

pre-answer motions to dismiss. A defendant must raise the defense of insufficiency

of service of process in his or her first pre-answer motion under Federal Rule of

Civil Procedure 12(b) or, if no motion is made, in his or her responsive pleading. 

See Fed. R. Civ. P. 12(h)(1); 5C Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 1391 (3d ed. 2004). Otherwise the defendant waives the

defense and thus consents to the personal jurisdiction of the court, unless the

defendant was unaware that the defense was available at the time. See Fed. R. Civ.

P. 12(h)(1); 5C Wright & Miller, Federal Practice and Procedure § 1391. Once the

defendant has waived objections based on insufficiency of process, the district court

cannot dismiss the suit for lack of personal jurisdiction. O'Brien v. R.J. O'Brien &

Assocs., Inc., 998 F.2d 1394, 1399 (7th Cir. 1993).
No. 07-1653 Page 4

The City of Milwaukee, its mayor, and the assistant city attorney objected to

the insufficiency of service of process in their pre-answer motion to dismiss, so we

cannot agree with Griffin that these defendants waived their objections to the

plaintiffs’ deficient service of process. See Fed. R. Civ. P. 12(h)(1). And when it

became clear to the district court that the chief of police and the individual police

officer had not been served properly, the court was correct to dismiss the complaint

sua sponte as to those defendants because they had not filed a pre-answer motion or

a responsive pleading and thus had not waived the defense. See Fed. R. Civ. P.

4(m), 12(h)(1). But Griffin is correct that the State of Wisconsin, the governor, the

former attorney general, the Milwaukee County Circuit Court, the assistant district

attorneys, the judges, and the court commissioner all waived their objections by

failing to include insufficiency of service of process as one of the grounds in their

pre-answer motions to dismiss. See Fed. R. Civ. P. 12(h)(1); 5C Wright & Miller,

Federal Practice and Procedure § 1391. Accordingly, their dismissal under Rule 4

was error.

That error, however, does not warrant a remand. We may affirm a judgment

on any ground supported by the record, see Omosegbon v. Wells, 335 F.3d 668, 677

(7th Cir. 2003); Payne v. Churchich, 161 F.3d 1030, 1038 (7th Cir. 1998), and in this

case the dismissal of Griffin’s damages claims against the remaining defendants

(we do not read the complaint to request any specific injunctive relief on Griffin’s

behalf) can be sustained on other bases.

Griffin’s claims against the State of Wisconsin and the Milwaukee County

Circuit Court (an arm of the state, see Wis. Stat. 753 (2005-06)) must fail because a

state is not a “person” that can be sued under 42 U.S.C. § 1983. See Will v.

Michigan Dept. of State Police, 491 U.S. 58, 64 (1989); Kelly v. Mun. Cts. of Marion

County, Indiana, 97 F.3d 902, 907-08 (7th Cir. 1996); Kaimowitz v. Bd. of Trs. of

Univ. of Illinois, 951 F.2d 765, 767 (7th Cir. 1991). Griffin’s claims against the

governor and the former attorney general of Wisconsin are barred as well because

those defendants had no personal involvement and cannot be liable under a theory

of respondeat superior. See Perkins v. Lawson, 312 F.3d 872, 875 (7th Cir. 2002). 

And Griffin’s claims against the judges, the court commissioner, and the assistant

district attorneys involve judicial or prosecutorial actions, so those defendants are

absolutely immune from suit. See Wis. Stat. § 757.68 (authorizing appointment of

court commissioners); Wis. SCR 75.02 (authorizing court commissioners to “perform

limited judicial and quasi-judicial functions under the direction and authority of the

chief judge and the judges of the circuit”); Stump v. Sparkman, 435 U.S. 349, 356-57

(1978); Imbler v. Pachtman, 424 U.S. 409, 428-32 (1976); Pierson v. Ray, 386 U.S.

547, 554-56 (1967); Crenshaw v. Baynerd, 180 F.3d 866, 868 (7th Cir. 1999) (holding

that quasi-judicial officers who “perform duties functionally comparable to those of

a judicial officer” are immune from liability).

AFFIRMED.