Ruddock v. Reno

104 F. App'x 204
CourtCourt of Appeals for the Second Circuit
DecidedJuly 1, 2004
DocketDocket No. 00-0179
StatusPublished
Cited by9 cases

This text of 104 F. App'x 204 (Ruddock v. Reno) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ruddock v. Reno, 104 F. App'x 204 (2d Cir. 2004).

Opinion

SUMMARY ORDER

Horace Ruddock appeals from a judgment of the United States District Court [206]*206for the Northern District of New York (Howard G. Munson, Judge). The Court adopted a Report and Recommendation by Magistrate Judge Gustave J. DiBianco and, in so doing, dismissed Ruddock’s complaint under Bivens v. Six Unknown Named Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Familiarity with the facts and procedural history is assumed.

The Report recommended that Rud-dock’s claims against defendants Janet Reno, Kathleen Hawk, Jim W. Tippy, Bill Keller, Steve Wanamaker, and M.J. Cross be dismissed with prejudice because he failed to allege their personal involvement in the purported Bivens violations. It also recommended that the claims against Reno, Tom Durkin, Wanamaker, and the two John Does should be dismissed as a consequence of Ruddock’s failure to effect service upon them. With respect to Dur-kin, the Report specifically recommended a dismissal without prejudice concluding that, although Ruddock may have a viable First Amendment claim against Durkin involving an alleged confiscation of a religious medallion, Ruddock had neither shown cause for his failure to serve Durkin within the appropriate time nor requested an extension of time. See Fed.R.Civ.P. 4(m). It also recommended that summary judgment be granted to M.J. Durant because there was no evidence that he used excessive force against, or verbally abused, Ruddock. Finally, it recommended that the claims against the two John Does be dismissed with prejudice based on a lack of evidence of the use of excessive force or verbal abuse by them. The District Court adopted the Magistrate Judge’s Report and Recommendation in its entirety and entered judgment. After unsuccessfully moving to alter or amend the District Court’s judgment, see Fed.R.Civ.P. 59(e), Ruddock appeals.

On appeal, Ruddock raises several issues. He contends that there are genuine issues of material fact precluding summary judgment. He also argues that the District Court erred in dismissing his complaint on the grounds that he failed to allege personal involvement of the defendants and that he failed properly to serve them. Finally, he claims that the Court erred in failing to conduct a de novo review of the record.

We find no merit in Ruddock’s challenge to that part of the District Court’s judgment dismissing the excessive force and verbal abuse claims against Durant and the two John Does, and therefore affirm that dismissal. However, we vacate the dismissal of Ruddock’s First Amendment claim against certain defendants.1 We vacate the dismissal of that claim against Durkin and Wanamaker, based on his failure to effect service on them, since we conclude Ruddock has shown “good cause” for the failure. Fed.R.Civ.P. 4(m) (requiring dismissal without prejudice if service of complaint and summons is not made within 120 days after filing, “provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period”). As a pro se prisoner-litigant proceeding in forma pauperis, Ruddock was “entitled to rely on service by the U.S. Marshals.” Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.1986) (citing Fed.R.Civ.P. 4(c)(2)). So long as such a prisoner provides the information necessary to identify the defendant, courts have uniformly held that the Marshals’ failure to effect service automatically constitutes [207]*207good cause within the meaning of Rule 4(m). See Moore v. Jackson, 123 F.3d 1082, 1085-86 (8th Cir.1997); Byrd v. Stone, 94 F.3d 217, 220 (6th Cir.1996); Dumaguin v. Sec’y of HHS, 28 F.3d 1218, 1221 (D.C.Cir. 1994); Puett v. Blandford, 912 F.2d 270, 276 (9th Cir.1990); Sellers v. United States, 902 F.2d 598, 602 (7th Cir.1990). The record shows that, despite the fact that Ruddock adequately identified Durkin and Wanamaker in a completed summons, the Marshals Service returned the summons unexecuted because Durkin and Wanamaker were employed at a different correctional facility than FCI Ray Brook. The responsibility for the failed service therefore lies with the Marshals Service, not with Ruddock. As the Seventh Circuit aptly explained under similar circumstances:

The Marshal needs from the prisoner information sufficient to identify the guard (“John Doe No. 23” won’t do); once that information has been provided, the Marshal should be able to obtain a current business address and complete service. If the Department of Justice declines to furnish the address to its own employee the Marshal, that hard-nosed attitude satisfactorily explains a prisoner’s inability to serve papers within 120 days. How is the prisoner to obtain information the Bureau of Prisons will not entrust to a Marshal? We join the Ninth Circuit in holding that when the district court instructs the Marshal to serve papers on behalf of a prisoner, the prisoner need furnish no more than the information necessary to identify the defendant. The Marshal’s failure to accomplish the task is automatically “good cause” within the meaning of Rule 4(j).

Sellers, 902 F.2d at 602 (internal citation omitted). Thus, we conclude that dismissal of Ruddock’s complaint against Durkin and Wanamaker was not warranted by the failure of service and that Ruddock should be given a reasonable extension of time to serve his complaint.2

We also vacate the dismissal with prejudice as to Hawk, Tippy, Keller, Durkin, Wanamaker, and Cross. The District Court dismissed Ruddock’s claims against these defendants after finding that he had failed sufficiently to allege their personal involvement in the purported constitutional deprivations. See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir.1995); Black v. United States, 534 F.2d 524, 527-28 (2d Cir. 1976). Instead, Ruddock’s complaint simply named them as defendants and stated that they held supervisory positions within the Bureau of Prisons.

We have stated, however, that we will not affirm a dismissal under such circumstances “ ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ ” Thompson v. Carter, 284 F.3d 411, 416 (2d Cir.2002) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

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Bluebook (online)
104 F. App'x 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ruddock-v-reno-ca2-2004.