2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-9-2015

James Harris, Jr. v. Matthew McMullen

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Recommended Citation

"James Harris, Jr. v. Matthew McMullen" (2015). 2015 Decisions. Paper 353.

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ALD-143 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-3633

___________

JAMES E. HARRIS, JR.,

 Appellant

v.

MATTHEW K. MCMULLEN, Corr. Off., D.C.C.;

GEORGE LANCASTER, Lieutenant, D.C.C.;

WARDEN JAMES T VAUGHN CORRECTIONAL CENTER

____________________________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. Civil No.1-10-cv-00481)

District Judge: Honorable Gregory M. Sleet

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

March 19, 2015

Before: RENDELL, CHAGARES and SCIRICA, Circuit Judges 

(Opinion filed: April 9, 2015)

_________

OPINION*

_________

PER CURIAM

 

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

Appellant, James Harris, appeals the District Court’s order dismissing his pro se 

case. Upon consideration of the record, we conclude that dismissal was proper. Because 

the appeal presents no substantial question, we will affirm the judgment of the District 

Court.

Harris, a state prisoner at the James T. Vaughn Correctional Center, filed a civil 

rights complaint pursuant to 42 U.S.C. § 1983 in the United States District Court for the 

District of Delaware in June 2010. Named as defendants were Corrections Officer 

Matthew McMullen, Lieutenant George Lancaster, and Warden Perry Phelps. Harris 

alleged that he was attacked and pepper sprayed by McMullen on May 31, 2008, and that 

McMullen confiscated his television and radio. In addition to having approved of the 

property confiscation, Lancaster is alleged to have placed Harris in isolation for fifteen 

days and then caused his transfer to the maximum security unit (MSU) for fifteen 

months. Harris asserted that Phelps held him in isolation for fifteen days, in the 

supermax housing unit (SHU) for seven and a half months, and in the MSU for seven and 

a half months – all for a “minor offense.” Harris claimed that the deprivation of his 

property and the loss of a lower security classification violated his constitutional rights.

The District Court granted Harris leave to proceed with his civil action in forma

pauperis (“IFP”), and went on to screen the complaint pursuant to 28 U.S.C. § 1915(e) 

and § 1915A. In a Memorandum Opinion and Order entered on September 29, 2010, the 

District Court dismissed as frivolous all claims against Lancaster and Phelps, as well as 

the deprivation of personal property claim against McMullen, pursuant to § 
3

1915(e)(2)(B)(i) and § 1915A(b)(1). The District Court explained that the due process 

claim based on the deprivation of his personal property is not actionable under § 1983 

unless there is no adequate post-deprivation remedy available. See D. Ct. Mem. Op. at 4 

(citing Paratt v. Taylor, 451 U.S. 527, 542 (1981), overruled on other grounds by 474 

U.S. 327 (1986)). Since Delaware provides an adequate remedy, Harris’ claim was 

subject to summary dismissal.

Harris’ contentions that he was unlawfully housed in isolation, the SHU and the 

MSU, and deprived of a lower security classification fared no better. The District Court 

concluded that Harris lacked the requisite liberty interest to implicate a due process 

violation, as his disciplinary confinement and classification did not constitute an atypical 

and significant hardship under Sandin v. Conner, 515 U.S. 472, 480 (1995), and thus 

were “within the sentence imposed.” See Mem. Op. at 5. The District Court permitted 

Harris’ excessive force claim against McMullen to proceed.

In the Order accompanying its Memorandum Opinion, the District Court directed 

Harris, pursuant to Fed. R. Civ. P. 4(c)(3) and (d)(1), to provide the court with a “USM285” form for defendant McMullen as well as for the Attorney General of Delaware. The 

court provided Harris with the Attorney General’s address. The court further advised 

Harris that the United States Marshal Service (“USMS”) would not serve the complaint 

until all USM-285 forms had been received. Harris was warned that failure to provide 

the forms within the time allotted could result in dismissal of the remaining defendant or 

the complaint pursuant to Fed. R. Civ. P. 4(m).
4

It appears that Harris attempted to comply with the court’s instructions but lacked 

sufficient copies of the USM-285 forms. Accordingly, the District Court issued an order 

directing the institution’s law library to provide Harris with the additional USM-285 

forms. Harris thereafter timely submitted the USM-285 forms for McMullen and the 

Delaware Attorney General. Unfortunately, the USM-285 form was twice returned 

unexecuted as to McMullen as he no longer worked at the Correctional Center. The court 

issued another order instructing Harris to request the Clerk of Court to prepare a 

summons for personal service of the complaint. Harris eventually complied and a 

summons was issued as to defendant McMullen on September 21, 2011. The summons, 

however, was returned unexecuted as McMullen no longer worked for the Delaware 

Department of Corrections (“DDOC”). In an order entered on January 31, 2012, the 

District Court directed the Attorney General for the State of Delaware to file under seal 

the last known address for defendant McMullen; the court directed Harris to return to the 

Clerk an original USM-285 form for McMullen. While the Attorney General complied, 

Harris did not. Accordingly, on May 8, 2012, the District Court once again entered an 

order dismissing the claim against McMullen without prejudice and directing that the 

case be closed.

Nearly a year later, Harris sought relief from the District Court’s dismissal order 

under Fed. R. Civ. P. 60(b). Though it is unclear why Harris waited so long to seek 

relief, he asserted that he had indeed complied with the court’s direction in a timely 

manner but that the prison had “lost” his filing. The District Court reopened the case a 
5

second time and provided Harris the opportunity to comply with its previous order or 

suffer dismissal. Harris attempted timely compliance, but the USM-285 form was once 

again returned unexecuted as to McMullen. Although the service package was mailed to 

the “sealed” address, it was returned marked “attempted – not known.” After the third 

unsuccessful attempt at service, the District Court entered an order on June 3, 2014, 

directing Harris to show cause why the complaint should not be dismissed for failure to 

serve process on defendant McMullen pursuant to Rule 4(m).

Harris responded with the general contention that his incarceration and indigency 

prevented him from being able to discover McMullen’s address, that the vast resources of 

the USMS made that agency “well-equipped” to locate the defendant, and that the DDOC 

should provide the names and addresses of the emergency contacts noted in McMullen’s 

personnel file as a possible means of assisting in locating McMullen. In an order entered 

on July 16, 2014, the District Court concluded that Harris had failed to show cause why 

McMullen should not be dismissed from the action. The District Court noted that it had 

been four years since the complaint had been filed, and that Harris had “unrealistic 

expectations” regarding the “extraordinary steps” that the court and others should take to 

assist him in locating defendant McMullen. In light of the numerous unsuccessful 

attempts made by the USMS, the District Court concluded that Harris failed to provide an 

adequate address that would allow McMullen to be served. Accordingly, the District 

Court dismissed McMullen as a defendant and directed that the case be closed. Harris 

filed this timely appeal seeking review of the District Court’s dismissal order.
6

We have jurisdiction under 28 U.S.C. ' 1291. See Green v. Humphrey Elevator & 

Truck Co., 816 F.2d 877, 878 n. 4 (3d Cir. 1987) (concluding that an order dismissing a 

complaint without prejudice is a final appealable order when the statute of limitations for 

the claim set forth therein has expired); see also Welch v. Folsom, 925 F.2d 666, 668 (3d 

Cir. 1991) (order of dismissal is final and appealable under § 1291where complaint filed 

by a plaintiff granted leave to proceed IFP is dismissed without prejudice for failure to 

effect service of process). Rule 4(m) provides that the District Court must dismiss the 

action without prejudice as to a defendant after notice to the plaintiff if service of the 

complaint is not made upon that defendant within 120 days after the filing. See Fed. R. 

Civ. P. 4(m). A District Court must extend the time for service, however, where a 

plaintiff demonstrates good cause for the failure to timely serve the defendant. See

McCurdy v. Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998). Even if a 

plaintiff fails to show good cause, the District Court must still consider whether any 

additional factors warrant a discretionary extension of time. See Petrucelli v. Bohringer 

& Ratzinger, 46 F.3d 1298, 1307 (3d Cir. 1995). We have plenary review over issues 

concerning the propriety of service. See McCurdy, 157 F.3d at 194. We review good 

cause determinations under Rule 4(m) for abuse of discretion. See Ayres v. Jacobs & 

Crumplar, 99 F.3d 565, 568 (3d Cir. 1996).

We conclude that no further extensions of the Rule 4(m) period were warranted in 

this case. While IFP status confers an entitlement to issuance and service of process, see

28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3), the plaintiff must provide sufficient 
7

information for the court to do so. See Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir. 

1993) (it is the responsibility of a plaintiff proceeding pro se and IFP to provide proper 

addresses for service). Harris failed to provide a valid address for defendant McMullen 

so that the USMS could properly effect service. Harris has not pointed to any authority 

instructing that a District Court or the USMS must engage in extraordinary measures to 

assist an IFP litigant in locating a defendant’s address for the purpose of service of 

process, and we are not aware of any.

The District Court ordered the Attorney General to provide, under seal, the last 

known address on file for defendant McMullen. The USMS attempted, on at least three 

separate occasions, to serve McMullen at the addresses provided by Harris and the 

Attorney General. On the record presented, we cannot conclude that the District Court 

erred in determining that it had fulfilled its duty under § 1915, as had the USMS. 

Because a further discretionary extension is unlikely to yield any fruitful results, under 

the circumstances here, dismissal of the case without prejudice as to the only remaining 

defendant for failure to timely effect service was appropriate.1 See Boley v. Kaymark, 

123 F.3d 756, 758 (3d Cir. 1997); Petrucelli, 46 F.3d at 1305-07.

 

1

 Harris has not expressed an intent to appeal the District Court’s disposition of the 

remainder of his claims. To the extent any such challenge was intended, he fares no 

better. We agree with the District Court’s determination that Harris’ claims were subject 

to dismissal under § 1915(e)(2)(B)(i) and § 1915A(b)(1) for the reasons set forth by the 

District Court. Moreover, we are satisfied that any amendment to the complaint with 

respect to these same claims would be futile. We therefore conclude that the District 

Court properly dismissed the complaint against defendants Lancaster and Phelps, as well

as the deprivation of personal property claim against defendant McMullen, without leave 
8

For the foregoing reasons and because the appeal presents no substantial question,

we will summarily affirm the District Court’s order of dismissal. See Third Circuit LAR 

27.4 and I.O.P. 10.6.

 

to amend. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002) (a 

court should not dismiss a pro se complaint without granting leave to amend unless 

“amendment would be inequitable or futile”).