Robert Keith ABEL, Plaintiff-Appellant, v. Van A. HARP, et al., Defendants-Appellees
No. 03-4474
United States Court of Appeals, Sixth Circuit
Filed Feb. 16, 2005
122 Fed. Appx. 248
C. Sentence
Pursuant to the Supreme Court‘s recent pronouncement in United States v. Booker, — U.S. —, 125 S.Ct. 738, — L.Ed.2d — (2005), Fusse is entitled to a re-sentencing. In Booker, the Supreme Court held that under the Sixth Amendment, “[a]ny fact (other than a prior conviction) which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt.” Booker, 125 S.Ct. at 756 (Stevens, J. for the Court). In this case, Fusse‘s base offense level was calculated using determinations of the quantities of drugs implicated by his conduct—findings that were made by a judge, not a jury. The judge determined that Fusse was accountable for four kilograms of cocaine. The jury found Fusse guilty of conspiracy to possess with intent to distribute over 500 grams of cocaine.
However, because Fusse did not raise this argument below, we may reverse his sentence only if the district court committed plain error. United States v. Oliver, 397 F.3d 369, 377-78 (6th Cir.2005), slip op. at 6. Fusse satisfies the plain error test as set forth by United States v. Olano, 507 U.S. 725, 735, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Here, the district court erred in applying the sentencing guidelines as mandatory, the error is “plain” at this time, the error affects substantial rights because Fusse arguably received a higher sentence as a result, and an error that leads to a Sixth Amendment violation seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Oliver, 397 F.3d at 377-81, slip op. at 6-8; United States v. Hines, 398 F.3d 713, 720-22 (6th Cir.2005), slip op. at 14-17. Consequently, we must remand the case to the district court for re-sentencing consistent with the Supreme Court‘s decision in Booker.
III. CONCLUSION
For the preceding reasons, we AFFIRM the conviction and VACATE and REMAND Fusse‘s sentence for proceedings consistent with this opinion and United States v. Booker.
Robert Keith Abel, Federal Correctional Institution, Jesup, GA, pro se.
Lynne H. Buck, Asst. U.S. Attorney, Kathleen L. Midian, Asst. U.S. Attorney, U.S. Attorney‘s Office, Cleveland, OH, for Defendant-Appellee.
Before RYAN and COOK, Circuit Judges; and BELL, District Judge.*
Plaintiff-Appellant Robert Keith Abel, a pro se federal prisoner, appeals the district court‘s order dismissing his complaint for failure to personally serve the defendants. This case was submitted without oral argument. For the reasons that follow, we reverse and remand the order of dismissal.
Abel filed this action pursuant to the doctrine announced in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), seeking money damages against six FBI agents in their individual capacities for injuries he sustained during his arrest for bank robbery. Abel alleged that three agents (Richard A. Wrenn, Phillip J. Torsney, and James A. Larkin) used excessive force against him and that the three other agents (Van A. Harp, Robin Rhoads, and Michael D. Vahue) failed to investigate or respond to his complaint regarding the circumstances of his apprehension. Abel was granted permission to proceed in forma pauperis and copies of his summons and complaint were issued to the United States Marshal for service on November 1, 2002. The Marshals Service served the individual defendants by certified mail.
The defendants moved to dismiss Abel‘s amended complaint. The magistrate judge issued a report and recommendation recommending that the complaint against Harp, Rhoads and Vahue be dismissed on the basis that Abel had conceded that these three defendants “should be amended from the complaint” and that it was Abel‘s intent to remove them as parties. The magistrate judge recommended that the motion to dismiss filed on behalf of Defendants Wrenn, Torsney and Larkin be
The district court judge adopted the report and recommendation of the magistrate judge in part and dismissed the complaint against Harp, Rhoads, and Vahue. However, the district judge did not adopt that portion of the report and recommendation that related to the remaining defendants. Instead, the court ordered that the complaint against Wrenn, Torsney and Larkin be dismissed for lack of personal jurisdiction and insufficiency of service of process.
On appeal Abel contends that the district court abused its discretion when it dismissed his Bivens action against Wrenn, Torsney, and Larkin and that the order dismissing the case should accordingly be reversed.
We review a district court judgment dismissing a complaint for failure to effect timely service of process for abuse of discretion. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir.1996); Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir.1994). “An abuse of discretion occurs when the district court has relied on clearly erroneous findings of fact, when it improperly applies the law, or when it uses an erroneous legal standard.” Tahfs v. Proctor, 316 F.3d 584, 593 (6th Cir.2003) (citing Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995)). “Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Id. (quoting Amernational Indus., Inc. v. Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir.1991)).
The district court dismissed Abel‘s action against Defendants Larkin, Torsney and Wrenn for lack of personal jurisdiction and insufficiency of service of process. Specifically, the district court found that Abel failed to personally serve these defendants within the 120-day time period set forth in
A plaintiff is responsible for serving the summons and complaint within the applicable time period.
Abel did not serve each of the individual defendants personally. The individual defendants were served only by certified mail. Although copies of the summons
Rule 4(m) requires dismissal only if the plaintiff has not shown good cause for his failure to serve the summons and complaint within the 120-day time period.
When an individual is granted leave to proceed in forma pauperis, “[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.”
Abel‘s complaint clearly identified the six individual defendants, clearly indicated that they were being sued in their individual capacities, and identified the location of the FBI office where they were working at all times relevant to the complaint. In accordance with
In Byrd we held that the plaintiff had demonstrated good cause for failure to timely serve the defendants where the clerk‘s office failed to issue plaintiff‘s summons and failed to appoint a United States Marshal to serve the summons. 94 F.3d at 220. “[T]he clerk‘s office and the Marshals Service were plainly derelict in performing their assigned tasks with respect to plaintiff‘s original complaint. Worse, the Marshals Service incorrectly informed plaintiff that it was taking care of the service of his summons when, in fact, no summons was issued at all.” Id. We held that “the utter failure of the clerk and the Marshals Service to accomplish their respective duties to issue and serve process for plaintiff proceeding in forma pauperis constitutes a showing of good cause under
The defendants contend that this case is distinguishable from Byrd because the Marshals Service made no misrepresentations to Abel regarding service. Moreover, the defendants assert that even though the Marshals Service was required to serve process on behalf of Abel, Abel was not totally divested of his own responsibilities under Rule 4(c)(1) to effect service of process. They contend that because Abel was aware that the defendants had not been properly served, it was incumbent on him either to request the Marshals Service to properly serve the defendants by hand delivery, or to request the court to order the Marshals Service to properly serve the defendants individually. Instead, they contend, he sat idly by. In this respect, the defendants contend that this case is more like Rochon than Byrd.
The Fifth Circuit held in Rochon that although an incarcerated plaintiff proceeding in forma pauperis may rely on service by the U.S. Marshals, he “may not remain silent and do nothing to effectuate such service.” Id. At a minimum, he should “request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge.” Id. The court faulted the plaintiff in Rochon for failing to request that the Marshals Service properly serve the appropriate defendant after the court specifically advised the plaintiff that the defendant had not been served. Id.
Contrary to the defendants’ assertions, and in contrast to the plaintiff in Rochon, Abel did not idly sit by when he knew there was a problem with service on the defendants. Abel did what he could to effect personal service through the Marshals Service. On November 3, 2002, he wrote to the Marshals Service and expressed his concern “that the complaints and summonses are hand delivered to the individual defendants in compliance with the court‘s rules.” The same day he copied the Marshals Service with his letter to the FBI asking the FBI to provide the Marshals Service with information as to the whereabouts of the individual defendants because “the Marshals will need to personally serve each defendant/agent.” The Marshals Service advised Abel that it had served all of the defendants. Although the docket sheet only reflected service by certified mail, the Marshals Service never informed Abel that it had not personally served the defendants as Abel had requested. In December 2002 and January 2003, Abel alerted the court to possible deficiencies in service of process in his Rule 60 motion. The magistrate judge reviewed the service requirements of Rule 4(i), including
The record clearly establishes that Abel demonstrated good cause for his failure to effectuate service of process on the individual defendants. Yet, the district court omitted from its analysis any consideration of good faith, including the fact that Abel was proceeding in forma pauperis pursuant to
Accordingly, the district court‘s order dismissing the case is REVERSED and the case is REMANDED with instructions to the district court to extend the time for service for an appropriate period and to direct the Marshals Service to personally serve Defendants Larkin, Torsney and Wrenn so that this case may proceed on its merits.