Don Maxwell/G-Doffee v. Darryl Golden , 490 F. App'x 845 ( 2012 )

United States Court of Appeals
For the Eighth Circuit
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No. 12-1575
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Don Merceleany R. Maxwell
lllllllllllllllllllll Plaintiff - Appellant
v.
Darryl Golden, Assistant Warden, Varner Unit, ADC; Douglas Allen, CO-1,
Varner Unit, ADC; Phillip Gordon, Correctional Officer, Varner Unit, ADC; Sgt.
Williams, Varner Unit, ADC; Lt. Wilson, Varner Unit, ADC; Ray Butler, CO-1,
Varner Unit, ADC; Sherry Conrad, Mail Room Supervisor, Varner Unit, ADC;
Cox, CO-1, Varner Unit, ADC; Jones, Correctional Officer, Varner Unit, ADC;
Hurt, CO-1, Varner Unit, ADC; Corderro Davis, CO-1, Varner Unit, ADC; K.
Tate, CO-1, Varner Unit, ADC; Letha Phillips, CO-1, Varner Unit, ADC; S.
Brown, Treatment Secretary, Varner Unit, ADC; Ray Hobbs, Assistant Warden,
Arkansas Department of Correction; Dexter Payne, Assistant Warden, McPherson
Unit, ADC; Mary Chase, Mailroom Supervisor, McPherson Unit, ADC; Pat
O'Brien, Circuit Clerk, Pulaski County; Does, Correctional Officer, Varner Unit;
Arkansas Department of Correction Board Members; Pulaski County Circuit
Court; Warden, McPherson Unit; Sgt. 1 & 2, Maximum Security Unit; and
Assistant Director, Arkansas Department of Correction; Sharon Carter, Mailroom
Supervisor, Maximum Security Unit, ADC; Larry May, Assistant Director,
Arkansas Department of Correction; Michael Jackson, CO-1, Maximum Security
Unit, ADC; Angelah Kennedy, CO-1, Maximum Security Unit, ADC; Peggy
Green; Crockett, Sgt., Maximum, Security Unit, ADC; Jamarrick Scarbough,
Maximum Security Unit, ADC; Deanne Jackson, CO-1, Maximum Security Unit,
ADC; Eason, Maximum Security Unit, ADC; Sharon Penister, Sgt., Maximum
Security Unit, ADC; Thomas, Sgt., Maximum Security Unit, ADC; Maple Adkins,
Sgt., Maximum Security Unit, ADC; Angela Tyler, CO-11, Maximum Security
Unit, ADC; Brandace Binns, CO-1, Maximum Security Unit, ADC; Leon
Williams, CO-1, Maximum Security Unit, ADC; David White, Warden, Maximum
Security Unit, ADC; Ray Diggs, CO-1, Varner Unit, ADC; Bonita Perkins
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: November 7, 2012
Filed: November 8, 2012
[Unpublished]
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Before BYE, GRUENDER, and BENTON, Circuit Judges.
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PER CURIAM.
Inmate Don Maxwell/G-Doffee (Maxwell) appeals following the district court’s
orders granting summary judgment on some claims and dismissing others; and we find
no basis for overturning all but one of these rulings. See 8th Cir. R. 47B. As to that
ruling, for the following reasons we find that the district court abused its discretion in
dismissing without prejudice, for lack of service, the retaliation claim against former
Varner Unit correctional officer Cox.
First, we cannot verify the district court’s statements about the certified mail
receipt for Cox. See Norsyn, Inc. v. Desai, 351 F.3d 825, 829-30 (8th Cir. 2003)
(dismissal for lack of service reviewed for abuse of discretion, but whether defendant
has been properly served is reviewed de novo). Second, even assuming service was
ineffective, we disagree that Maxwell–who as an in forma pauperis (IFP) litigant was
entitled to rely on the United States Marshals Service (USMS) for service–failed to
take appropriate action to see that Cox was served. See Rochon v. Dawson, 828 F.2d
1107, 1109-10 (5th Cir. 1987) (IFP litigant is entitled to rely on service by USMS).
As far as Maxwell knew, the USMS had been provided with all the information
necessary to effect service (via address information filed under seal), and there was no
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way for him to know that the docket entry reflecting successfully executed service on
Cox was erroneous. See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th Cir.
1996) (once IFP plaintiff has taken reasonable steps to identify defendants, Fed. R.
Civ. P. 4(c)(2) and 28 U.S.C. § 1915(d)–formerly § 1915(c)–stand for proposition that
court is obligated to issue plaintiff’s process to USMS, who in turn must effectuate
service upon defendants); cf. Rance v. Rocksolid Granit USA, Inc., 583 F.3d 1284,
1286-88 & n.3 (11th Cir. 2009) (IFP litigant is entitled to rely on service by USMS,
where failure of USMS to effectuate service is through no fault of litigant, but IFP
plaintiff may not remain silent and do nothing when he has notice that service has not
been made). We also disagree that Maxwell ought to have inferred that service was
unsuccessful simply because Cox had not answered the complaint. Finally, based on
the foregoing, Maxwell had good cause for failing to serve Cox–his pro se and IFP
status, and his reasonable reliance on the erroneous docket entry–and thus he should
have been provided additional time for the USMS to effect service. See Kurka v. Iowa
County, Iowa, 628 F.3d 953, 957 (8th Cir. 2010) (court should extend time for service
for appropriate period if plaintiff shows good cause for failure to serve; whether
standard of good cause is met is largely dependent upon facts of each case). We thus
reverse the dismissal of the retaliation claim against Cox, and we remand to the district
court with instructions to order the USMS to attempt to serve Cox in compliance with
relevant federal and Arkansas procedural rules.
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