* Pursuant to Local Rule 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in Local Rule 47.5.4. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-40049

(Summary Calendar)

_________________

JUAN JORGE SANCHEZ,

Plaintiff-Appellant,

versus

ORLANDO PEREZ, ET AL,

Defendants,

DAVID STOCKLEY; SAUL CRUZ; MARTHA VILLAREAL

Defendants-Appellees.

Appeal from the United States District Court

For the Southern District of Texas

(C-94-CV-180)

August 30, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Juan Jorge Sanchez, a prisoner with the Texas

Department of Corrections, appeals from the district court’s
 

2 In Officer Cruz’s affidavit, he referred to the incident as a “major

use of force.” 

-2-

dismissal of his 42 U.S.C. § 1983 suit. We affirm in part,

reverse in part, and remand for further proceedings. 

I

Sanchez filed a complaint under 42 U.S.C. § 1983 against

Orlando Perez, Assistant Warden at the McConnell Unit; Patrick

Marion, the Captain in charge of disciplinary hearings; and

Correctional Officers Saul Cruz, David Stockley, and Martha

Villareal. The suit grew out of an altercation between Sanchez and

Officer Villareal. According to Sanchez, after he was handcuffed

and subdued, Officers Cruz and Stockley “body-slammed” Sanchez on

the floor and kept him there for fifteen to twenty minutes.2 After

the incident, Officer Villareal filed a disciplinary charge against

Sanchez, alleging that Sanchez had threatened a correctional

officer with bodily harm. Captain Marion conducted a hearing and

found Sanchez guilty of the charge. Sanchez was restricted to his

cell for fifteen days, lost his commissary privileges for fortyfive days, and lost thirty days of good-time credits. 

Sanchez then filed this § 1983 suit, alleging that Officers

Cruz, Stockley, and Villareal had used excessive force in subduing

him, that Captain Marion had failed to conduct a hearing which

comported with the requirements of due process, and that Assistant

Warden Perez had failed to adequately train and discipline his

staff, which resulted in both the use of excessive force and the
 

3 The Marshals Service mailed the complaint and summons to each

defendant at their last known place of employment, the McConnell Unit of the

Texas Department of Corrections. Service for Cruz, Stockley, and Villareal were

marked “returned to sender, attempted-not known,” and returned to the Marshals

Service. Sanchez alleges that he was never informed of any defect in the service

of process. 

-3-

denial of Sanchez’s due process rights. Sanchez sought both

equitable and monetary relief. The district court referred

Sanchez’s complaint to a magistrate judge. The magistrate judge

granted Sanchez’s motion to proceed in forma pauperis, and ordered

the U.S. Marshals Service to serve copies of the complaint on all

five defendants at the McConnell Unit. Only Assistant Warden Perez

and Captain Marion received service of process.3 Perez and Marion

filed an answer in the district court asserting qualified immunity,

and a motion for summary judgment complete with supporting

affidavits. The district court dismissed as frivolous Sanchez’s

claims against Assistant Warden Perez and Captain Marion. Finding

that the other three defendants had not been served, the district

court gave Sanchez twenty days to provide accurate addresses for

those defendants or his claims against them would be dismissed.

Sanchez filed objections to the judgment and a request for

extension of time with the magistrate. The magistrate judge

reviewed these objections and made a recommendation that Sanchez’s

claims be dismissed. Again Sanchez filed objections. The district

court adopted the findings of the magistrate judge, and dismissed

Sanchez’s suit against the other defendants for failure to timely

serve process. Sanchez now appeals. 
 

4 Good cause requires a plaintiff to show “some reasonable basis for

noncompliance within the time specified.” Kersh v. Derozier, 851 F.2d 1509, 1512

(5th Cir. 1988) (internal quotation marks omitted). 

-4-

II 

We review a district court’s decision to dismiss for failure

to serve process for abuse of discretion. Traina v. United States,

911 F.2d 1155, 1157 (5th Cir. 1990). Dismissals for failure to

timely serve process are governed by FED. R. CIV. P. 4(m), and pro

se litigants are not excused from its requirements. Espinoza v.

United States, 52 F.3d 838, 840 (10th Cir. 1995). Rule 4(m)

provides that service must be made within 120 days of the filing of

the complaint, and dismissals must be without prejudice. A

district court may order a dismissal under Rule 4(m) even where it

will operate as “with prejudice” because the statute of limitations

has run. Norlock v. City of Garland, 768 F.2d 654, 658 (5th Cir.

1985). However, the rule provides that if a plaintiff shows “good

cause” for failure to serve process within the specified time, “the

court shall extend the time for service for an appropriate period.”

FED. R. CIV. P. 4(m).4 

After carefully reviewing the record, we hold that the

district court abused its discretion in dismissing Sanchez’s claims

against Officers Cruz, Stockley, and Villareal for failure to

timely serve process. In this case, the magistrate judge ordered

the Marshals Service to effectuate service of process. As we have

previously held, “a plaintiff proceeding in forma pauperis is
 

5 We further note that months after the Marshals Service had failed to

serve Cruz, Stockley, and Villareal at the McConnell Unit, defendants Perez and

Marion filed a FED. R. CIV. P. 26 “Disclosure to Plaintiff,” giving the names and

addresses of “each individual likely to have discoverable information” relevant

to the case. In this disclosure, which Rule 26 requires to be accurate to the

best of the litigants’ knowledge, Assistant Warden Perez and Captain Marion

continued to list the McConnell Unit as the proper address of Cruz, Stockley, and

Villareal. It is unclear from the record why this disclosure did not reflect the

fact that Cruz, Stockley, and Villareal had left the McConnell Unit. 

 

6 Sanchez apparently could get no response from the Texas Department

of Corrections on the current whereabouts of Cruz, Stockley, and Villareal. As

the Seventh Circuit has noted, the reluctance to disclose prison guards’

addresses is not surprising because “prisoners aggrieved by guards’ conduct may

resort to extra-legal weapons after release if they do not deem the results of

the litigation satisfactory.” Sellers v. United States, 902 F.2d 598, 602 (7th

Cir. 1990). 

-5-

entitled to rely upon service by the U.S. Marshals and should not

be penalized for failure of the Marshals Service to properly effect

service of process, where such failure is through no fault of the

litigant.” Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987);

see also Sellers v. United States, 902 F.2d 598, 602 (7th Cir.

1990) (holding that “indigent prisoner representing himself is

entitled to rely on the Marshal to achieve service of process”).

Here, the failure to effectuate service of process was through no

fault of Sanchez. Sanchez provided the Marshals Service with the

last known work address of Cruz, Stockley, and Villareal. The

Marshals Service never informed Sanchez that there had been a

problem serving those defendants.5 In addition, once the district

court had threatened to dismiss Sanchez action for failure to

timely serve process, Sanchez attempted, in several ways, to obtain

the new addresses of these Corrections Officers.6 On these

particular facts, we hold that the district court abused its
 

7 We affirm the dismissal of Sanchez’s claims against Assistant Warden

Perez and Captain Marion, for essentially the reasons stated in the district

court’s Order Dismissing Claims, dated August 24, 1995. Sanchez has simply

failed to allege any legal theory upon which he could recover against Perez or

Marion, and therefore his suit as to these two defendants is frivolous under 28

U.S.C. § 1915(d). See Booker v. Koonce, 2 F.3d 114, (5th Cir. 1993) (noting that

under § 1915(d), claims are frivolous if based upon meritless legal theory). 

-6-

discretion in dismissing Sanchez’s claims against Officers Cruz,

Stockley, and Villareal for failure to timely serve process.7 

III

For the foregoing reasons, we AFFIRM the district court’s

order dismissing as frivolous Sanchez’s claims against defendants

Perez and Marion. We REVERSE the district court’s order dismissing

Sanchez’s claims against Cruz, Stockley, and Villareal, for failure

to timely serve process and REMAND for further proceedings.