Jesus Carmona v. Dick Ross

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1049
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Jesus Carmona, *
*
Appellant, *
*
v. * Appeal from the United States
* District Court for the
Dick Ross; John Sausen; David Ten * District of Minnesota.
Eyck; David Hermerding; Jennifer *
Cummings; Tim Friis; Jesse Ventura; *
Mike Hatch; Don Inwards; Marshall * [PUBLISHED]
Prescott; Rod McCulley; Harvey Doe; *
Pete Doe; Crow Wing County; City *
of Brainerd; Denny Peterson, *
*
Appellees. *
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Submitted: July 6, 2004
Filed: July 22, 2004
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Before WOLLMAN, BOWMAN, and HANSEN, Circuit Judges.
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PER CURIAM.
Louisiana inmate Jesus Carmona appeals the district court’s order dismissing
unserved defendants, dismissing his second amended complaint, and denying his
motion to compel discovery in his 42 U.S.C. § 1983 action, following a remand by
this court to address those issues. We affirm the dismissal of unserved defendants
who previously were named in the first amended complaint, but we modify the
dismissal to be without prejudice; we reverse the dismissal of the second amended
complaint as to the newly added defendants, and we remand to allow Carmona time
to serve those defendants.
Because the district court's order on remand dismisses the second amended
complaint, we conclude that it implicitly granted Carmona's request to file the second
amended complaint. The court did not deny Carmona leave to file the second
amended complaint. In addressing the second amended complaint, the district court
incorporated by reference its prior resolution of the claims against Ross, and it
clarified that it was dismissing all unserved defendants for lack of service. We find
that the district court did not abuse its discretion in dismissing those unserved
defendants who previously were named in the first amended complaint. See Bullock
v. United States, 160 F.3d 441, 442 (8th Cir. 1998) (per curiam) (standard of review).
With respect to those defendants, the court gave Carmona an extension to file
completed summons forms and warned him that his failure to do so would result in
dismissal, and yet Carmona did not request additional summons forms until more than
five months after the extended deadline. See Fed. R. Civ. P. 4(m) (if service of
summons and complaint is not made within 120 days of filing complaint, court, upon
motion or its own initiative and after notice to plaintiff, shall dismiss action without
prejudice as to that defendant, or direct that service be effected within specified time);
Edwards v. Edwards, 754 F.2d 298, 299 (8th Cir. 1985) (per curiam) (if plaintiff fails
to serve party and does not show good cause for failing to do so, court shall dismiss
action).
We find, however, that the district court erred in dismissing all of the
defendants named in the second amended complaint for lack of service, as Carmona
should have been given an additional 120 days to serve those defendants who were
added by the second amended complaint. See City of Merced v. Fields, 997 F. Supp.
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1326, 1337-39 (E.D. Cal. 1998); 4B Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 1137, at 377 (2002).
Accordingly, we affirm the dismissal of defendants City of Brainerd, Crow
Wing County, Rod McCulley, Marshall Prescott, Denny Peterson, David Hermerding,
and Jennifer Cummings, but we modify the dismissal to be without prejudice. See
Fed. R. Civ. P. 4(m) (court shall dismiss action without prejudice). We reverse as to
the claims against defendants John Sausen, Judge David Ten Eyck, Tim Friis, Jesse
Ventura, Mike Hatch, Harvey Doe, Don Inwards, and Pete Doe, and remand for the
district court to allow Carmona time to serve those defendants.
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