United States Court of Appeals

for the Fifth Circuit

No. 20-50055

Garland Ballentine, 

Plaintiff—Appellant,

versus

Sergeant Heather Broxton; Jay Hart, SIGMO; Vicki 

Cundiff, Grievance Department, 

Defendants—Appellees.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 6:19-CV-459

Before Jolly, Haynes, and Oldham, Circuit Judges.

Per Curiam:*

Garland Ballentine, a currently incarcerated prisoner, filed this 

lawsuit under 42 U.S.C. § 1983 against Sergeant Heather Broxton, Jay Hart, 

and Vicki Cundiff (collectively, “Defendants”), challenging his 

administrative segregation (a form of solitary confinement). Among other 

* Pursuant to 5th Circuit 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opinion should not be published and is not precedent except under the limited 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 5th Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 13, 2021

Lyle W. Cayce

Clerk

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No. 20-50055

2

claims, he alleged that Defendants violated his constitutional rights by 

preventing him from participating in the Gang Renunciation and 

Disassociation (“GRAD”) Program—the only avenue out of solitary 

confinement for a former gang member—because he refused to cooperate to 

the satisfaction of outside law enforcement. Ballentine also petitioned to 

proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. 

The district court granted Ballentine’s IFP motion but ordered the 

clerk of the court not to issue summons or forward summons to the U.S. 

Marshal for service on Defendants.1

 It later dismissed Ballentine’s case with 

prejudice, without ever serving Defendants, and therefore, without ever 

hearing Defendants’ arguments. After his motion for reconsideration was 

denied, Ballentine timely appealed. He was later appointed counsel. 

On appeal, Ballentine’s appointed counsel notes that this case 

presents complicated questions of constitutional law and favorably cites a 

Fifth Circuit case where a state government official was invited to participate 

in an appeal. We agree that full consideration of Ballentine’s arguments with 

the benefit of the Defendants’ response is appropriate in this case. However,

we conclude that the proper remedy is to remand this case back to the district 

court to address these complex issues in the first instance, with the benefit of 

briefing from properly served Defendants. See United States v. Hibernia Nat’l

Bank, 841 F.2d 592, 597 (5th Cir. 1988) (remanding to the district court to 

make findings in the first instance and, if appropriate, to receive additional 

1 We note that a court must order service by a U.S. marshal, deputy, or person 

appointed by the court if a “plaintiff is authorized to proceed [IFP].” Fed. R. Civ. P.

4(c)(3); see also Cornish v. Tex. Bd. of Crim. J. Off. of the Inspector Gen., 141 F. App’x 298, 

300–01 (5th Cir. 2005) (noting that Rule 4 and 28 U.S.C. § 1915 “require the court to issue 

[an IFP] plaintiff’s process to a United States Marshal who must in turn effectuate service 

upon the defendants” if “the IFP plaintiff has taken reasonable steps to identify the 

defendant(s)” (quotation omitted)). 

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briefing); see also Outlaw v. Connett, 460 F.2d 1257, 1258 (5th Cir. 1972) (per 

curiam) (acknowledging that the plaintiff failed to properly serve the United 

States and concluding that, on remand, “the District Court should afford 

appellant a reasonable period of time to effect proper service on the United 

States”). 

Accordingly, we VACATE and REMAND with instructions that 

service be made on Defendants and that the district court consider the 

arguments of both sides.

Case: 20-50055 Document: 00515977997 Page: 3 Date Filed: 08/13/2021