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Stohlmeyer v. Jentry

United States District Court, W.D. Wisconsin

May 31, 2017

RICHARD LOUIS STOHLMEYER, Plaintiff,
v.
SAMANTHA JENTRY and F.B.I., Defendants.

          OPINION AND ORDER

          WILLIAM M. CONLEY District Judge.

         Pro se plaintiff Richard Louis Stohlmeyer filed this civil action against Samantha Jentry[1] and the FBI, alleging that a number of disturbing events have occurred, including: being placed under surveillance; being hit in his car and run off the road; being shot at; receiving harassing phone calls and an electric shock from his cell phone; being sprayed with a chemical; having his house broken into; and being denied rental space at a flea market. Plaintiff paid the $400 filing fee for his complaint, and he was directed to serve the summons and copies of his complaint on defendants. Plaintiff filed proof of service on July 25 and August 1, 2016, showing that he had attempted service on both the FBI and Jentry through certified mail.

         Defendants have now moved to dismiss the complaint on various grounds, including: (1) insufficient service of process on Jentry; (2) failure to state a claim upon which relief may be granted; (3) failure to exhaust administrative remedies under the Federal Tort Claims Act; (4) improper venue; and (5) lack of standing for certain claims. (Dkt. #8.) The court concludes that defendants' motion must be granted. Plaintiff failed to serve Jentry properly, but even if he had properly served her, his complaint fails to state a claim against either Jentry or the FBI. The court will, therefore, dismiss plaintiff's claim without prejudice, subject to giving plaintiff an additional opportunity to file and properly serve an amended complaint that states a claim against defendants. If plaintiff fails to do so by the deadline specified below, this case will be dismissed.

         OPINION

         I. Lack of Personal Service on Samantha Jentry

         Defendants move to dismiss plaintiff's claims against Samantha Jentry for insufficient service of process under Fed.R.Civ.P. 12(b)(5).[2] Rule 4(e) sets forth the rules governing service of process on an individual, allowing parties to accomplish service by:

         (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or

         (2) Doing any of the following:

(A) Delivering a copy of the summons and of the complaint to the individual personally;
(B) Leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) Delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e). Under Wisconsin law, a plaintiff must attempt service of a summons on an individual by either personally serving the summons on the defendant or leaving a copy of the summons at the defendant's usual place of abode. Wis.Stat. § 801.11. If these methods are unavailable, a plaintiff may serve notice by publication and mailing to the defendant's residence. Id.

         Plaintiff's “proof of service” confirms that he has not served Jentry by any permissible means. (See dkt. ##5, 6, 7.) Instead, he attempted to serve her by mailing the complaint to the U.S. Attorney General's Office and the Madison U.S. Attorneys' office. Because plaintiff has failed to properly serve Jentry under Rule 4(e), the court may either dismiss plaintiff's claim against her without prejudice, or may extend the time for service. See Fed. R. Civ. P 4(m). Normally, the court would extend the time for service when a pro se litigant has failed to properly serve a defendant. Here, however, extending the time for plaintiff to serve the original complaint would be pointless because, as discussed below, plaintiff's complaint fails to state any claim for relief against either defendant.[3] Thus, it makes no sense for plaintiff to make efforts to properly serve a complaint that would be immediately dismissed for failure to state a claim. Instead, the court will dismiss the claim against Jentry without prejudice and give plaintiff the opportunity to amend his complaint with information sufficient to state a claim and then properly serve the amended complaint.

         II. Failure ...


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