Matthew K. Holleran v. Mike Baker , 109 F. App'x 830 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-2739
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Matthew K. Holleran, *
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Appellant, *
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Kenneth Gibson; Andrew Bachelor; *
Gary J. McMullin, *
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Plaintiffs, *
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v. * Appeal from the United States
* District Court for the
Mike Baker, Sheriff; Chris Allen, Jail * Eastern District of Missouri
Administration; Fred Vahle, Chief *
County Commissioner; Arden * [UNPUBLISHED]
Engelage, County Commissioner; Ken *
McLaughlin, County Commissioner, *
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Appellees, *
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Unknown Hoffman, Warren County *
Sheriff’s Department Major, *
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Defendant, *
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John Doe; Jane Doe, *
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Appellees. *
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Submitted: July 30, 2004
Filed: September 15, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
Michael Holleran appeals from the final judgment entered in the District Court1
for the Eastern District of Missouri dismissing his 42 U.S.C. § 1983 complaint. For
reversal, appellant argues that the district court erred in dismissing the complaint. For
the reasons discussed below, we affirm the judgment of the district court.
Holleran brought this complaint on April 30, 2003, naming six defendants and
“several unknown John Does and Jane Does,” and alleging civil rights violations
arising out of his incarceration at the Warren County Jail (Jail). Specifically, he
alleged that some defendants denied him access to the courts. Also, he was locked
down for twenty-three hours a day without receiving a conduct violation, and when
he told defendant “Mr. Hoffman,” a Warren County Sheriff’s Department officer, on
the first night he was locked down that he intended to sue the Jail, Hoffman placed
the entire pod on lock-down and stated that “as long as [they] were locked down,
[they] couldn’t sue.”
The district court dismissed the court-access claims under 28 U.S.C.
§ 1915(e)(2)(B), but ordered service on defendant Hoffman as to the lock-down
claim. A summons was issued; however, it was returned unexecuted because
Hoffman was no longer employed with the Warren County Sheriff’s Department. The
district court notified Holleran about the failed attempt to serve Hoffman, and
directed him to provide the district court clerk with Hoffman’s correct address within
ten days. Holleran failed to do so, and on July 30, the court dismissed the claim
1
The Honorable E. Richard Webber, United States District Judge for the
Eastern District of Missouri.
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against Hoffman without prejudice under Fed. R. Civ. P. 4(m) for lack of timely
service of process. This timely appeal followed.
Upon de novo review, see Moore v. Sims, 200 F.3d 1170, 1171 (8th Cir. 2000)
(per curiam), we affirm. First, we find that the district court properly dismissed the
court-access claims, because Holleran failed to allege an actual injury, i.e., that a
“nonfrivolous legal claim had been frustrated or was being impeded.” See Lewis v.
Casey, 518 U.S. 343, 351-53 (1996). Second, we find no abuse of discretion in the
district court’s dismissal without prejudice of the complaint against Hoffman, because
Holleran failed to comply with the court’s order directing him to provide Hoffman’s
correct address within ten days. See Fed. R. Civ. P. 41(b) (district court may dismiss
action if plaintiff has failed to prosecute, or has failed to comply with procedural rules
or any order of court); Rodgers v. Curators of Univ. of Mo., 135 F.3d 1216, 1219 (8th
Cir. 1998). Finally, we find that the district court did not abuse its discretion in
denying appointment of counsel. See Edgington v. Mo. Dep’t of Corr., 52 F.3d 777,
780 (8th Cir. 1995).
Accordingly, we affirm.
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