Clark v. Runyon

27 F. Supp. 2d 1040, 1998 U.S. Dist. LEXIS 5225, 1998 WL 182459
CourtDistrict Court, N.D. Illinois
DecidedApril 14, 1998
DocketNo. 98 C 2076
StatusPublished
Cited by2 cases

This text of 27 F. Supp. 2d 1040 (Clark v. Runyon) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clark v. Runyon, 27 F. Supp. 2d 1040, 1998 U.S. Dist. LEXIS 5225, 1998 WL 182459 (N.D. Ill. 1998).

Opinion

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

This action, recently transferred from the District of Arizona to this judicial district pursuant to 28 U.S.C. § 1404(a),1 has been assigned at random to this Court’s calendar. This memorandum opinion and order is issued sua sponte to address a number of problems disclosed by the transferred file.

To begin with, the file reflects that pro se plaintiff Crystal Clark (“Clark”) has never sought or obtained proper service on defendant Postmaster General Marvin Runyon (“Runyon”) in the more-than-14-month period since Clark originally filed this action on February 7, 1997. And there is no question that Clark has been aware of that defect for many months: Assistant United States Attorney Cynthia Parsons pointed it out in the government’s May 16, 1997 Motion for Change of Venue, and it formed part of the basis for District Judge Roger Strand’s June 5, 1997 denial of Clark’s ill-conceived motion for a default judgment, together with his vacation of Clark’s equally ill-conceived obtaining of a default order from the Arizona District Clerk’s Office.

It is thus plain that Clark has not complied with the time limit for service of process specified in Fed.R.Civ.P. (“Rule”) 4(m):

If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected [1042]*1042within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

And it is equally plain that Rule 4(i) sets out, with precision and using language that should be clear to any nonlawyer as well as to any lawyer, the method for obtaining service on the United States or on any officer of the United States such as Runyon. In that respect, no less an authority than the unanimous United States Supreme Court has announced that the generous reading that is to be given to pleadings filed by pro se litigants (Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)(per curiam)) does not extend to excusing failures by such litigants to conform to clearly-spelled-out procedural requirements (McNeil v. United States, 508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993)(footnotes omitted)):

It is no doubt true that there are cases in which a litigant proceeding without counsel may make a fatal procedural error, but the risk that a lawyer will be unable to understand the exhaustion requirement is virtually nonexistent. Our rules of procedure are based on the assumption that litigation is normally conducted by lawyers. While we have insisted that the pleadings prepared by prisoners who do not have access to counsel be liberally construed, see Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976), and have held that some procedural rules must give way because of the unique circumstance of incarceration, see Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (pro se prisoner’s notice of appeal deemed filed at time of delivery to prison authorities), we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel. As we have noted before, “in the long run, experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law.” Mohasco Corp. v. Silver, 447 U.S. 807, 826, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980).

Under the circumstances, Clark is ordered to file a brief memorandum in this Court’s chambers on or before April 30, 1998 stating why she believes that this Court should not enter an order in accordance with Rule 4(m) dismissing this action without prejudice. As Rule 4(m) itself recognizes, of course, Clark’s memorandum may also set out any claim that she may have as to the existence of good cause for her failure to have served Runyon properly before now.

Because any dismissal that might be ordered by this Court under Rule 4(m) is required to be entered without prejudice, this opinion will proceed to identify some patent jurisdictional defects in the existing Complaint.2 Those defects are obviously matters that Clark would have to bear in mind if the action were in fact dismissed and if she were then to try again via a new filing.

Although Clark’s first claim for relief is based on asserted employment discrimination, as to which Complaint ¶¶ 47-50 set out her asserted compliance with the administrative preconditions to her bringing suit on such a claim, none of her other seven claims for relief (which are referred to here for convenience in the form “Claim — ”) passes muster. It should first be observed that Clark ascribes no improper conduct to Postmaster General Runyon personally, so that this lawsuit must be understood to be brought as an official-capacity action. And of course that “official capacity” term is just another way of saying that the action is brought against the government for which [1043]*1043Postmaster General Runyon works: the United States itself.

In that light:
1. Claim 2 (Complaint ¶¶ 53-54) is made under 42 U.S.C. § 1981. But even though a federal official who acts wrongfully under color of federal law may be liable under that section, the absence of any assertion that Runyon himself was guilty of any malfeasance dooms that claim.
2. Claim 3 (Complaint ¶¶ 55-56) purports to be advanced under the Illinois Civil Rights Act. But under the doctrine of sovereign immunity, the United States (and this also embraces Runyon in his official capacity) may be sued only if and to the extent that it has consented to be sued. No such consent has been given to actions under that Illinois statute. And although the United States has consented to be sued in certain situations covered by the Federal Tort Claims Act (28 U.S.C. §§ 2671-2680), Clark has unquestionably not complied with the preconditions to bringing such an action.
3. Claim 4 (Complaint ¶ 57) attempts to invoke the equal protection and due process clauses of both the Illinois and the United States Constitutions. As for the former, what has just been said as to Claim 3 precludes any such claim. As to the latter, even if Clark could assert a Bivens-type

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Cite This Page — Counsel Stack

Bluebook (online)
27 F. Supp. 2d 1040, 1998 U.S. Dist. LEXIS 5225, 1998 WL 182459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-runyon-ilnd-1998.