Brown v. Shalala

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 14 1998
TENTH CIRCUIT
PATRICK FISHER
Clerk
WILLIAM ROBERT BROWN,
Plaintiff - Appellant, No. 98-5050
v. (D.C. No. 97-C-497-K)
DONNA SHALALA, Secretary of the (N.D. Okla.)
Department of Health and Human
Services,
Defendant - Appellee.
ORDER AND JUDGMENT *
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
Plaintiff, proceeding pro se, filed a complaint alleging employment
discrimination in violation of Title VII. Although Plaintiff served Defendant
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Shalala, he failed to properly or timely serve either the United States Attorney
General or the United States Attorney for the Northern District of Oklahoma as
required by Federal Rules of Civil Procedure 4(i) and (m). The district court
dismissed the action without prejudice for failure to effect service. Defendant
filed this appeal in which he claims that his failure to comply with the procedural
rules is excused by the fact that he is proceeding pro se and in forma pauperis and
by his reliance on the advice of a Court Clerk’s office employee concerning how
to effect service.
After reviewing the record and the briefs, we affirm the dismissal without
prejudice of Plaintiff’s Title VII action for substantially the same reasons as
stated by the district court in its Order filed February 9, 1998. We point out that,
despite Plaintiff’s claims that no delay or prejudice has occurred, the record
indicates that Plaintiff still has not attempted to properly serve the Attorney
General or the appropriate United States Attorney as Rule 4(i) requires. Although
a litigant’s pro se status may affect a district court’s determination of whether the
litigant has timely served under Rule 4(i) and (m), see Espinoza v. United States,
52 F.3d 838, 842 (10th Cir. 1995), Plaintiff’s pro se status does not excuse his
failure to follow the fundamental rules of civil and appellate procedure. See
Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994),
-2-
cert. denied, 513 U.S. 1090 (1995).
AFFIRMED.
Entered for the Court
Monroe McKay
Circuit Judge
-3-