Robert Womble, II v. Eric Holder, Jr.

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1212n.06
No. 10-3924
UNITED STATES COURT OF APPEALS FILED
FOR THE SIXTH CIRCUIT Nov 26, 2012
LEONARD GREEN, Clerk
ROBERT C. WOMBLE, II, )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
ERIC H. HOLDER, JR., U.S. Attorney ) SOUTHERN DISTRICT OF OHIO
General, et al., )
)
Defendants-Appellees. )
Before: COOK and WHITE, Circuit Judges; SHARP, District Judge.*
COOK, Circuit Judge. Plaintiff Robert Womble appeals the dismissal of his Bivens suit
against defendants Eric H. Holder, Jr., Attorney General of the United States; Harley G. Lappin,
Director of the Federal Bureau of Prisons; Kim M. White, Regional Director, Federal Bureau of
Prisons; and John Does I through X. We AFFIRM.
I.
Womble filed his Bivens action against the defendants in their individual and official
capacities, alleging a violation of his speedy-trial rights, and demanding compensatory and punitive
*
The Honorable Kevin H. Sharp, United States District Judge for the Middle District of
Tennessee, sitting by designation.
No. 10-3924
Womble v. Holder, et al
damages of approximately $350,000.00 dollars. Womble perfected service on Holder and Lappin
but did not serve the United States. After the expiration of 120 days from the filing of Womble’s
complaint, the district court issued an Order to Show Cause (“Show Cause Order”), citing Rule 4(i)
and fully explaining its requirement of service on the United States. The court’s Show Cause Order
notified Womble that it proposed to dismiss the complaint subject to receiving, within 20 days,
Womble’s response addressing why the complaint should not be dismissed for failure of service of
process. After more than a month without a response from Womble, the district court dismissed his
claim without prejudice.
Womble now appeals, arguing that, because he properly served Holder and Lappin, the
district court erred by not affording him a reasonable time to cure his failed service on the United
States, as Rule 4(i)(4) mandates.
II.
We review for abuse of discretion a district court’s dismissal of a complaint for insufficiency
of process, Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994), reversing only where the
record discloses “a clear error of judgment.” Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir. 2003)
(quoting Amernational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)).
Rule 4(i) dictates process-serving requirements for actions against federal officers and
employees. Beyond personal service on named federal officers, the Rule also calls for separate
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No. 10-3924
Womble v. Holder, et al
service on the United States by (1) personal or mail service of the summons and complaint on the
United States Attorney in the district in which the action is filed, and (2) mailing a copy of the
summons and complaint by registered or certified mail to the Attorney General of the United States
at Washington, D.C. Fed. R. Civ. P. 4(i)(1).
Womble complains that, given his perfected service on Holder and Lappin, Rule 4(i)(4)
required the district court to “allow . . . a reasonable time to cure [the] failure to . . . serve the United
States.” Yet Womble never raised the cure provision in the district court, despite the court’s
ordering Womble to show cause why his complaint should not be dismissed. The Show Cause Order
provided Womble both with time to cure by serving the United States and time to request further
time to cure. During this 20-day period, however, Womble neither asked for time to cure, nor cured.
In fact, Womble did nothing in response to the court’s Order other than refile the records showing
service on Holder and Lappin.
Having failed to raise the cure provision under Rule 4(i)(4) when given an opportunity to do
so, Womble cannot now claim error in the Court’s failure to grant additional time to cure.
Discerning no abuse of discretion, we AFFIRM the judgment of the district court.
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