Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2009

Crock v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-4410




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"Crock v. Comm Social Security" (2009). 2009 Decisions. Paper 1214.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1214


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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 08-4410


                                 THOMAS D. CROCK,
                                                Appellant
                                       v.

                               MICHAEL J. ASTRUE,
                            Commissioner of Social Security


                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-08-cv-00680)
                      District Judge: Honorable Gary L. Lancaster


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    May 21, 2009

        Before: SCIRICA, Chief Judge, CHAGARES and WEIS, Circuit Judges

                               (Opinion filed: June 8, 2009)



                                        OPINION


PER CURIAM.

              Appellant Thomas Crock appeals pro se from an order of the District Court

dismissing his case pursuant to Federal Rule of Civil Procedure Rule 41(b), for failure to


                                             1
effectuate service of the summons and his complaint within the time limit prescribed by

Federal Rule of Civil Procedure Rule 4(m). For the reasons that follow, we will vacate

the District Court’s order and remand for further proceedings.

                                            I.

             On May 19, 2008, Crock filed a motion to proceed in forma pauperis in the

Western District of Pennsylvania. He sought the District Court’s review of the Social

Security Commissioner’s final determination disallowing his claim for disability benefits.

See 42 U.S.C. § 405(g). On May 20, 2008, the District Court granted Crock’s motion and

issued a summons as to Appellee, the Commissioner of the Social Security

Administration (“the Commissioner”). On that same date, Crock filed his complaint with

the District Court. He did not serve the complaint upon the Commissioner.

             On September 18, 2008, the District Court issued an order under Rule 4(m),

requiring Crock to show cause as to why the case should not be dismissed for failure to

serve the Commissioner within 120 days of filing the complaint. Crock was given until

September 29, 2008, to answer. On September 30, 2008, Crock had yet to respond, and

the District Court dismissed the complaint under Rule 4(m). Crock then moved for

reconsideration, and the District Court denied that motion on October 17, 2008. Crock

timely appealed.




                                            II.

                                            2
              We have jurisdiction under 28 U.S.C. § 1291. We review dismissals

pursuant to Rule 41(b) and Rule 4(m) for abuse of discretion. See Boley v. Kaymark, 

, 758 (3d Cir. 1997); Adams v. Trustees of the N.J. Brewery Employees’ Pension

Trust Fund, 

, 870 (3d Cir. 1994).

                                            III.

              As a litigant proceeding in forma pauperis, Crock was not responsible for

the service of process. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue and

serve all process[.]”); Byrd v. Stone, 

, 219 (6th Cir. 1996) (“the court is

obligated to issue plaintiff’s process to a United States Marshal who must in turn

effectuate service upon the defendants . . . once reasonable steps have been taken to

identify for the court the defendants names in the complaint”); see also Young v. Quinlan,

, 359 (3d Cir. 1992), superseded by statute on other grounds as stated in

Ghana v. Holland, 

, 184 (3d Cir. 2000).

              Crock filed his complaint with the District Court, indicating that the

Commissioner was the defendant party, and specifying the Commissioner’s address.

Thus, the District Court was obligated to “order that service be made by a United States

marshal or deputy marshal or by a person specially appointed by the court.” Fed. R. Civ.

P. 4(c)(3). For this reason, we will vacate the District Court’s order dismissing Crock’s

complaint and remand the case for further proceedings.