United States Court of Appeals,

Fifth Circuit.

No. 95-20955.

Bobby Lee LINDSEY, Plaintiff-Appellant,

v.

UNITED STATES RAILROAD RETIREMENT BOARD, et al., Defendants-Appellees.

Dec. 18, 1996.

Appeal from the United States District Court for the Southern District of Texas.

Before POLITZ, Chief Judge, and EMILIO M. GARZA and STEWART, Circuit Judges.

STEWART, Circuit Judge:

Bobby Lindsey, an inmate proceeding pro se and in forma pauperis, filed a complaint against

the United States Railroad Retirement Board alleging that it violated his constitutional rights by

denying him retirement benefits to which he was entitled. The district court dismissed the complaint

for insufficient service of process. Lindsey appeals the dismissal. We vacate and remand.

FACTS AND PROCEEDINGS

On No vember 8, 1994, Lindsey filed a p ro se and in forma pauperis (IFP) civil rights suit

pursuant to 42 U.S.C. § 1983 against the United States Railroad Retirement Board (Board). Lindsey

alleged t hat the Board denied him retirement benefits to which he was entitled. The cover letter

accompanying the complaint and IFP application stated: "Please file the above a nd serve citation to

the address indicated therein

.... Please inform me of the date[ ] of filing a nd the date which service

is issued. " (Emphasis added.) The co mplaint, on the line stating "Address for service," listed the

address of the Board. No further addresses were provided.

On December 5, 1994, the district court authorized Lindsey to proceed in forma pauperis.

However, the record does not reflect that service issued. On January 24, 1995, approximately 100

days after Lindsey filed his co mplaint, he moved the district court to appoint Jeffrey Chapin, an

inmate, as a "special server of summon[s]" and to order the clerk of court to provide Lindsey with

the proper summons form required by Fed.R.Civ.P. 4(a). The district court apparently did not rule1 Lindsey apparently combined the address of the civil process clerk at the AUSA's office with

the address for the AUSA's office itself. He did not provide the name of the person who was to

be served. on Lindsey's motion. Nothing in the record contradicts Lindsey's assertion that the clerk of court did

not provide him with the proper summons form.

Chapin then twice unsuccessfully attempted to serve the United States. After both attempts

at service, an Assistant United States Attorney (AUSA) informed Lindsey by letter that service had

not been properly effected in accordance with Fed.R.Civ.P. 4(i)(1). In the letters to Lindsey, the

AUSA supplied Lindsey with the names and addresses of those who Lindsey could properly serve.

A carbon copy of the letter and the addresses were sent to the clerk of court. On July 6, 1995,

Lindsey moved the district court to order the cle rk of court to serve the Uni ted States, and i n hi s

motion, presented the court with a service address provided to him by the AUSA. 1 Nonetheless, on

August 22, 1995, the district court denied Lindsey's request and warned Lindsey that his suit would

be dismissed for want of prosecution if he failed to serve the United States Attorney General and the

Board by September 22, 1995. On October 20, 1995, the district court dismissed Lindsey's claim.

On October 31, 1995, Lindsey filed a Fed.R.Civ.P. 59(e) motion seeking to reinstate his case

on the ground that he had diligently attempted to effect proper service but could not do so because

the district court and clerk of court refused to provide him with the proper summons form. Lindsey

filed a notice of appeal on November 2, 1995. On December 8, 1995, the district court entered an

orde r refusing to reinstate Lindsey's case. Lindsey's notice of appeal became effective upon

disposition of his post-judgment motion. See Fed. R.App. P. 4(a)(4).

DISCUSSION

Lindsey appeals the district court's dismissal of his civil rights action against the United States

for ineffective service of process, arguing t hat he could not properly effectuate service of process

because the district court judge and clerk of court refused "to supply the proper summons paper with

the official seal of the clerk attached thereto" as required by Fed.R.Civ.P. 4(a). We review a dismissal

for failure to effect t imely service of process for an abuse of discretion. P eters v. United States, 9

F.3d 344, 345 (5th Cir.1993) (per curiam). We conclude that the district court abused its discretion2 The United States Supreme Court and this Circuit have recently held that the 1993

amendments to Rule 4 also permit a court to extend the time for service even if no good cause is

shown. See Henderson v. United States, --- U.S. ----, ----, 116 S.Ct. 1638, 1643, 134 L.Ed.2d

880 (1996); Thompson v. Brow n, 91 F.3d 20, 21 (5th Cir.1996). Because we hold that Lindsey

has made a showing of good cause, we need not address the question of whether Lindsey is by dismissing Lindsey's case.

Proper service on the United States is effected

(A) by delivering a copy of the summons and of the complaint to the United States Attorney

for the district in whic h t he action is brought or to an assistant United States attorney or

clerical employee designated by the United States attorney in a writing filed with the clerk of

the court or by sending a copy of the summons and of the complaint by registered or certified

mail addressed to the civil process clerk at the office of the United States attorney and

(B) by also sending a copy of the summons and of the complaint by re gistered or certi fi ed

mail to the Attorney General of the United States at Washington, District of Columbia[.]

Fed.R.Civ.P. 4(i)(1)(A), (B). In addition, in cases challenging the actions of a federal agency, a copy

of the summons and complaint must be sent by registered or certified mail to the relevant agency.

Fed.R.Civ.P. 4(i)(1)(C).

Special rules govern the procedure for service of process in cases invo lving in forma pauperis

plaint iffs like Lindsey. 28 U.S.C. § 1915(c) provides that "[t]he officers of the court shall issue and

serve all process, and perform all duties in [ in forma pauperis ] cases." Fed.R.Civ.P. 4(c)(2) goes

hand-in-hand with § 1915(c), and it provides that

At the request of the plaint iff

. .. t he co urt may direct that service be effected by a United

States marshal, or other person or officer specially appointed by the court for that purpose.

Such an appointment must b e made w hen the plaintiff is authorized to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915

....

(Emphasis added). Once the i n forma pauperis plaint iff has taken reasonable ste ps to identity the

defendant(s), "Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand f or the proposi ti on that ... the court i s

obligated to issue plaintiff's process to a United States Marshal who must in turn effectuate service

upon the defendants...." Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996) (emphasis added).

If proper service is not made within 120 days of filing the complaint, the action is subject to

sua sponte dismissal, without prejudice, by the district court after notice to the plaint iff. Fed.R.Civ.P.

4(m). However, dismissal is improper "if the plaintiff shows good cause for the failure" to properly

effect service. Id. 2 We have held that "[t]o establish "good cause' the plaintiff must demonstrate atentitled to relief absent a showing of good cause.

least as much as would be required to show excusable neglect, as to which simple inadvertence or

mistake of counsel or ignorance of the rules usually do not suffice." Peters, 9 F.3d at 345. Upon a

showing of good cause, the district court "shall extend the time for service for an appropriate period."

Fed.R.Civ.P. 4(m).

The district court in this case provided no reasons for denying Lindsey's request to have the

clerk of court serve the United States or for refusing to reinstate Lindsey's case. We must therefore

assume the district court found that (1) its refusal to direct the clerk of court (or anyone else) to serve

the Un it ed St at es did not excuse Lindsey's failure to properly serve the United States, and (2)

Lindsey's failure to procure fro m t he clerk of court the proper summons form required by

Fed.R.Civ.P. 4(a) also did not constitute good cause for Lindsey's failure to properly serve the United

States. The district court abused its discretion in so finding.

What amounts to "good cause" under a n y particular set of circumstances is necessarily

fact-sensitive. Although we have found no decision within this Circuit that sheds light on the precise

issues raised in this case, our decision in Rochon v. Dawson, 828 F.2d 1107 (5th Cir.1987) i s

i llustrative. There, an IFP plaintiff filed suit against a physician. Because the plaintiff was

incarcerated, he relied and was dependent on the U.S. Marshal's Service for service of process. He

provided the Service with the address of the hospital at which the defendant was allegedly employed.

However, no acknowledgment of receipt of process was received. Four months later, the plaint iff

added the hospital as a defendant. More than one year after service was attempted on the physician,

the district court dismissed the plaint iff's case as to both the physician and the hospital. After the

plaint iff moved for reinstatement of his cause of action, the district court reinstated the case and

ordered th e clerk o f court to serve the defendants. The hospital was properly served, but the

physician was not. When ruling on one of the hospital's pre-trial motions, the district court noted that

the physician had yet to be served. The plaintiff, however, did nothing. Summary judgment was

granted in favor of the hospital and the claim against the physician was dismissed for want of

prosecution.3 We proceeded under the 1987 version of Rule 4(c)(2)(B) (which is now Rule 4(c)(2)). 828

F.2d at 1109 n. 1.

4 See Byrd v. Stone, 94 F.3d at 219-20 (clerk of court and Marshals Service); Antonelli v.

Sheahan, 81 F.3d 1422, 1426 (7th Cir.1996) (Marshals Service); Graham v. Satkoski, 51 F.3d

710, 712-13 (7th Cir.1995) (same); Lujano v. Omaha Pub. Pow er Dist., 30 F.3d 1032, 1033-35

(8th Cir.1994) (Magistrate Judge); Dumaguin v. Secretary of Health & Human Servs., 28 F.3d

1218, 1221 (D.C.Cir.1994) (Marshals Service), cert. denied, --- U.S. ----, 116 S.Ct. 94, 133

L.Ed.2d 50 (1995); see also Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir.1994)

(acknowledging that in forma pauperis plaintiff is entitled to rely on the Marshals Service for

service of process, but holding that plaintiff's failure to provide the Service with sufficient

information and failure to request that defendant be served amounted to a failure to show good

cause). We rejected the plaint iff's claim on appeal that his case against the physician should not have

been dismissed because the Marshal's Service failed to effectively serve the defendant. We held that

"a plaint iff proceeding in forma pauperis is ent it led t o rely upon service by the U.S. Marshals and

should not be penalized for failure of the Ma rshal's Service to properly effect service of process,

where such failure is through no fault of the litigant." 828 F.2d at 1110. We noted, however, that

when failure of effective service of process is due to the "dilatoriness or fault" of the plaint iff, relief

from a dismissal for insufficiency of service of pro cess should be denied. I d. We reasoned that "a

plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff

should request service upon the appropriate defendant and attempt to remedy any apparent service

defects of which a plaintiff has knowledge." I d. We concluded that the plaint iff was dilatory and at

fault for insufficient service because he was told by the district court that process was not served on

the physician, yet the plaintiff did nothing about it. Id.

Although Rochon did not involve the good cause provision of Rule 4, 3 our holding in that case

dovetails with the view among our sister circuits that good cause is shown when in forma pauperis

plaint iffs' failure to properly serve a defendant is attributable to governm ent personnel who have

improperly performed their duties. 4 For example, in B yrd v. Stone, 94 F.3d 21 7

, the Sixth Circuit

reversed the district court's decision to dismiss the in forma pauperis plaint iff's complaint for failure

to effect t imely service of process when the clerk of court failed to issue the plaint iff's summons and

the Marshals Service failed to serve the defendant. I d. at 219-20. In L ujano v. Omaha Pub. Power

Dist., 30 F.3d 1032, the Eighth Circuit reversed a dismissal of an i n forma pauperis plaint iff's5 Pursuant to Rule 4(i), Lindsey was required to also serve a U.S. Attorney (or AUSA or

clerical employee) and the U.S. Attorney General. complaint when the Magistrate Judge, who was solely responsible for issuing a summons, failed to

do so within the 120-day time period prescribed by Rule 4(m). Id. at 1035. In B yrd and Lujano,

good cause was found where government personnel failed to follow their statutory obligations ( Byrd

) or the local rules ( Lujano ).

In light of these authorities, we believe that Lindsey has made a showing of good cause for

two reasons. First, the record does not show that the clerk of court provided Lindsey with a proper

summons form—something Lindsey requested within the 120-day time frame and was required to

have under Fed.R.Civ.P. 4(a). Thus, even if Lindsey had complied with Fed.R.Civ.P. 4(i)(1) when

Chapin first attempted to serve the United States, Lindsey would not have effected proper service

anyway because he would not have complied with Fed.R.Civ.P. 4(a).

Second, and perhaps most importantly, Lindsey's inabilit y to meet the 120-day deadline was

compounded by the district court's failure to follow Fed.R.Civ.P. 4(c)(2) and 28 U.S.C. § 1915(c),

which require the district court, in in forma pauperis cases such as this one, to appoint and direct a

U.S. marshal, deputy U.S. marshal, or some other person to serve process for Lindsey once he

requested it. The district court neither appointed nor directed anyone to serve process for Lindsey,

even though Lindsey asked the district court to do so when he filed his complaint to serve the Board.

We recognize that Lindsey did not, in his complaint, provide the addresses of all the parties that had

to be served pursuant to Rule 4. 5 We do not, however, find this fact fatal to Lindsey. Once Lindsey

requested the district court to serve the Board, Rule 4 and § 1915(c) required the court to appoint

someone to serve process for him. The district court's failure to act in accordance with these two

provisions was an abuse of discretion.

Lindsey's conduct does not rise to the level of dilatoriness and silence we found objectionable

in Rochon. There, the district court followed the dictates of Rule 4 and § 1915(c), ordered the clerk

to serve process on the defendants, and engaged in some sort of dialogue with the plaint iff when the

wrong address was provided. Yet the plaintiff did nothing to remedy the problem. Here, the districtcourt failed to adhere to the applic a ble statutory mandates despite Lindsey's request for service of

process and his in forma pauperis status. Lindsey was therefore left to his own devices to secure

service on the United States. He tried twice (through Chapin) and failed. After these two failed

attempts, Lindsey then petitioned the court to order the clerk to serve process for him. But by that

time, the 120-day time period set forth in Fed.R.Civ.P. 4(m) had lapsed. The only time the district

court intervened was to tell Lindsey his case would be dismissed if he did not serve the Board and

the United States—and that was approximately 300 days after Lindsey requested the court to serve

the Board.

The district court's failure to follow Rule 4(c)(2) and § 1915(c) was a substantial cause of

Lindsey's failure to properly serve the United States. This is a sufficient showing of good cause. S ee,

e.g., Antonelli v. Sheahan, 81 F.3d at 1426 ("The Marshals Service's failure to complete service [as

required by statute], once furnished with the necessary ident ifying information, is auto matically "good

cause' ...." (emphasis added)); Graham v. Satkoski, 51 F.3d at 713 (same).

We conclude that Lindsey's inability to properly serve the United States was attributable in

large part to the clerk's failure to provide Lindsey with the proper summons fo rm and the district

court's failure to follow controlling statutes which required the court to app oint a Uni ted States

Marshal or other person or officer appointed by the court to effectuate service for Lindsey. Neither

of these contingencies were within Lindsey's control. In view of our determination that dismissal of

Lindsey's complaint was imprudent, we conclude that a remand for further proceedings is appropriate.

The judgment of the district court is VACATED and REMANDED for proceedings

consistent with this opinion.