United States District Court, E.D. Wisconsin
ORDER DENYING DEFENDANT'S MOTION TO DISMISS (DKT.
NO. 21), GRANTING PLAINTIFF'S MOTION FOR ORDER TO HAVE
DEFENDANT SERVED (DKT. NO. 28) AND ORDERING U.S. MARSHALS TO
SERVE DEFENDANT CONSISTENT WITH FED. R. CIV. P. 4(E)
PAMELA PEPPER, UNITED STATES DISTRICT JUDGE
November 22, 2017, Isaac Tyrone Jackson, representing
himself, filed a complaint under 28 U.S.C. §1983,
alleging that the defendant-"a[n] officer from the
[Racine County] Sheriff's Office”-violated his
civil rights during a “shakedown” at the Dodge
Correctional Institution. Dkt. No. 1 at 2-3. Judge Lynn
Adelman screened the complaint on February 16, 2018 and
allowed the plaintiff to proceed with a claim that the
defendant interfered with the plaintiff's ability to
practice his religion in violation of the First Amendment.
Dkt. No. 9. In that same order, Judge Adelman ordered the
U.S. Marshals to serve the complaint on the defendant.
Id. at 5.
February 26, 2018, the Clerk's office gave the U.S.
Marshals a service packet (the complaint, screening order,
notice, waiver and consent forms) to serve on the defendant.
Dkt. No. 10. About six months later, on August 31, 2018, the
U.S. Marshals filed an unexecuted Waiver of Service
form for the defendant. Dkt. No. 15. According to the
notations on the form, the U.S. Marshals mailed the service
packet to the Racine County Sheriff's Office on March 26,
2018, and the packet came back “return[ed] to
sender” on June 11, 2018, because the defendant
wasn't a Racine County Sheriff's employee.
same day, the Clerk's office provided the U.S. Marshals
with another service packet. Dkt. No. 16. Two months after
that, on October 24, 2018, the marshals filed a Process
Receipt and Return form, indicating that on October 1, 2018,
they had served the complaint on Police Officer Pat Caulson
at the Mt. Pleasant Police Department. Dkt. No. 18. They
marked the box indicating that Caulson was “[a] person
of suitable age and discretion then residing in the
defendant's usual place of abode.” Id.
five months later, on March 28, 2019, the defendant's
attorneys filed appearances on his behalf, dkt. nos. 19, 20,
and filed a motion to dismiss based on the plaintiff's
failure to properly serve the complaint, dkt. no. 22. The
defendant argued that he never authorized Caulson, or anyone
else at the Mt. Pleasant Police Department, to accept service
on his behalf. Id. He asserted that the plaintiff
did not exercise “reasonable diligence” to serve
the defendant personally, as required by the Federal Rules of
Civil Procedure before a litigant can use alternate means of
service. Id.; see also Fed.R.Civ.P. 4. The
defendant also argued that that there is no one named Pat
Caulson at the Mt. Pleasant Police Department. Id.
There was an individual named Chris Paulson at the
Mt. Pleasant Police Department, but the defendant told the
court that he did not authorize Paulson to accept service on
his behalf, either. Id.
deadline to respond to the defendant's motion to dismiss
passed and the plaintiff did not respond, so the court did
not know whether the plaintiff wanted to continue with his
case. On May 12, 2019, the court issued an order asking the
plaintiff whether he opposed the motion to dismiss and, if
so, why he hadn't timely responded to the motion to
dismiss. Dkt. No. 27. On June 7, 2019, the court received the
plaintiff's response asking the court to deem service
proper or, in the alternative, to send him a copy of the
complaint so he could mail it to the defendant's
attorneys. Dkt. No. 28.
Rule of Civil Procedure 4(m) provides that “if a
defendant is not served within 90 days after the complaint is
filed, the court-on motion or on its own after notice to the
plaintiff-must dismiss the action without prejudice against
that defendant or order that service be made within a
specified time.” Fed.R.Civ.P. 4(m). Judge Adelman
ordered service of the complaint on February 16, 2018, so the
marshals had until May 17, 2018 to serve the complaint on the
defendant. The marshals delivered the complaint to the Mt.
Pleasant Police department on October 1, 2018, about four and
a half months after the statutory deadline; the defendant is
correct that service was untimely.
4(m) further provides, however, that “if the plaintiff
shows good cause for the failure [to serve], the court must
extend the time for service for an appropriate period.”
Fed.R.Civ.P. 4(m). The Seventh Circuit has held that a
“prisoner proceeding pro se in forma pauperis
is not responsible for delays by the Marshals Service in
serving a summons and complaint.” Keller v.
U.S., 444 Fed. App'x 909, 912 (7th Cir. 2011). That
court also has held that the marshals' failure to take
reasonable efforts to track down an address for the
defendants is “good cause” for extending the
ninety-day deadline under Rule 4(m). Graham v.
Satkoski, 51 F.3d 710, 713 (7th Cir. 1995). Given that
the plaintiff is representing himself and that it appears
that the marshals did not confirm where the defendant worked
before they mailed the first service packet to the Racine
County Sheriff's Office, and that when they effectuated
service at what appears to have been the right
police department-the Mt. Pleasant Police Department-they
left the service packet with an employee other than the
defendant, the court finds that the plaintiff has shown good
cause for failure to serve the defendant.
court will deny the defendant's motion to dismiss the
complaint for failure to properly serve. The court will
extend the deadline for effecting service, and will order the
marshals to serve Officer Giese in the manner required by
Fed.R.Civ.P. 4(e)-that is, by either (a) delivering
a copy of the summons and complaint to Officer Giese
personally, or (b) by leaving a copy of the summons and
complaint at Officer Giese's “dwelling or usual
place of abode”-that means his residence, not his
job-“with someone of suitable age and discretion who
resides there, ” or (c) delivering a copy of the
summons and complaint to an agent authorized by appointment
or law to receive service of process. See
Fed.R.Civ.P. 4(e). Leaving a copy of the complaint with an
officer at Mt. Pleasant Police Department does not comply
with Rule 4(e) because the defendant's co-workers are not
agents authorized by appointment or by law to receive service
of process on behalf of the defendant.
court DENIES the defendant's motion to
dismiss. Dkt. No. 21.
court GRANTS the plaintiffs motion for an
order permitting plaintiff to have defendant served. Dkt. No.
court ORDERS the U.S. Marshals Service to
serve a copy of the complaint and this order on defendant
Officer Giese under Federal Rule of Civil Procedure 4.
Congress requires the U.S. Marshals Service to charge for
making or attempting such service. 28 U.S.C. §1921(a).
Although Congress requires the court to order service by the
U.S. Marshals Service, it has not made any provision for
either the court or the U.S. Marshals Service to waive these
fees. The current fee for waiver-of-service packages is $8.00
per item mailed. The full fee schedule is provided at 28
C.F.R. §§0.114(a)(2), (a)(3). The U.S. Marshals
Service will give the plaintiff information on how to remit
payment. The court is not involved in collection of the fee.
court ORDERS defendant Giese to file a