Pickens v. Powell ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 7, 2006
Charles R. Fulbruge III
Clerk
No. 05-60605
Summary Calendar
ROCKIE D. PICKENS,
Plaintiff-Appellant,
versus
VIMAL POWELL, Inmate Legal Assistance Program Technician,
in his individual capacity,
Defendant-Appellee.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 4:03-CV-427
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Before Barksdale, Stewart, and Clement, Circuit Judges.
PER CURIAM:*
Rockie D. Pickens, Mississippi inmate # 71454, seeks to
proceed in forma pauperis (IFP) on appeal from the district
court’s dismissal of his civil rights complaint under FED. R. CIV.
P. 4(m) for failure to serve the defendant. Pickens argues that
he was entitled to rely on the United States Marshal’s Service to
serve Powell and that it failed to effect service by not serving
Powell personally at his home address.
*
Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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. R. 47.5.4.
No. 05-60605
-2-
By moving for leave to proceed IFP, Pickens is challenging
the district court’s certification that his appeal was not taken
in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir.
1997); 28 U.S.C. § 1915(a)(3); FED. R. APP. P. 24(a)(3). Because
Pickens was IFP, he was entitled to rely on the Marshal’s Service
to effect service of his complaint on Powell. See 28 U.S.C.
§ 1915(c); FED. R. CIV. P. 4(c)(2); Rochon v. Dawson, 828 F.2d
1107, 1110 (5th Cir. 1987). If the Marshal’s Service attempted
to serve Powell by certified mail only and not personally, the
Marshal’s Service improperly performed its duty, and the district
court abused its discretion when it dismissed Pickens’s suit.
See Lindsey v. United States R.R. Retirement Bd., 101 F.3d 444,
447 (5th Cir. 1996); FED. R. CIV. P. 4(e); MISS. R. CIV. P.
4(c)(5); Triple C Transp., Inc. v. Dickens, 870 So. 2d 1195,
1198-99 (Ms. 2004).
IT IS ORDERED that Pickens’s motion to proceed IFP is
GRANTED. The district court’s certification decision is VACATED,
and the case is REMANDED for the district court to identify
evidence that the Marshal’s Service attempted to serve Powell
personally. If the district court is unable to identify such
evidence, it should order the United States Marshal’s Service or
other appropriate person under FED. R. CIV. P. 4(e) to serve
Pickens’s complaint on Powell personally.
IFP GRANTED; VACATED AND REMANDED.