Ruddock v. Reno
Opinion of the Court
SUMMARY ORDER
Horace Ruddock appeals from a judgment of the United States District Court
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.
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.
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)). “ ‘This rule applies with particular force where the plaintiff alleges civil rights violations or where the complaint is submitted pro se. ’ ” Id. (quoting Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)). “Finally, when addressing a pro se complaint, a district ‘court should not dismiss without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.’ ” Id. (quoting Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991)). Ruddock, who is both pursuing civil rights claims and proceeding pro se, alleged a set of supporting facts in his objections to the Report and Recommendation that may entitle him to
Accordingly, the judgment of the District Court is hereby affirmed in part, vacated in part, and remanded for further proceedings consistent with this summary order.
. While the District Court's dismissal appears to assume that Ruddock charged only Durkin with a First Amendment violation, we will, construing the pleadings liberally, permit Ruddock to allege facts in his amended complaint, if any, specifying whether any of the other defendants (other than Reno) also could be held liable.
. There is no record of any attempt by Rud-dock to have the Marshal Service serve Reno. Accordingly, Ruddock has not established good cause for his failure to serve her.
Reference
- Full Case Name
- Horace RUDDOCK v. Janet RENO, Attorney General of the United States of America, Kathleen Hawk, Director of the Federal Bureau of Prisons, Jim W. Tippy, Warden of F.C.I. Ray Brook, Bill Keller, Warden of F.C.I. Ray Brook, Tom Durkin, Associate Warden of Program at F.C.I. Ray Brook, Steve Wanamaker, Captain at F.C.I. Ray Brook, M.J. Cross, Special Investigating Supervisor at F.C.I. Ray Brook, M.J. Durant, Correctional Officer at F.C.I. Ray Brook, John Doe, Correctional Officer at F.C.I. Ray Brook, John-I Doe, Correctional Officer at F.C.I. Ray Brook
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- Published