# United States Court **of Appeals**  **f or 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 sol itary confinement) . Among other

* Pursuant to **5th Cir cuit**  **R ule**  47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in **5th Cir cuit**  **R ule**  47.5.4. United States Court of Appeals Fifth Circuit 

### FILED August 13, 2021

Lyle W. Cayce Clerk Case: 20-50055 Document: 00515977997 Page: 1 Date Filed: 08/13/2021No. 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 forme r 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 D efendants. 1 It later dismissed Ballentine’s case with prejudice, without ever serving Defendants , and therefore, without ever hearing Defendants’ arguments

. After his motion for reconsider ation was denied, Ballentine timely appeal ed

. He was later appointed counsel.
On appeal, Ballentine’s appointed counsel note s 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 , 84 1 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 effectua te service upon the defendants” if “t he IFP plaintiff has taken reasonable steps to identify the defendant(s) ” (quotation omitted))

. Case: 20-50055 Document: 00515977997 Page: 2 Date Filed: 08/13/2021No. 20

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3 briefing) ; see also Outlaw v. Connett , 460 F.2d 1257, 1258 (5th Cir. 1972) (per curiam) (acknowledging that t he 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 **VACAT E**  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