Filed: Jul. 21, 2005
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 21, 2005 _ Charles R. Fulbruge III No. 04-11327 Clerk Summary Calendar _ HAROLD B. CORNISH, Plaintiff - Appellant, versus TEXAS BOARD OF CRIMINAL JUSTICE OFFICE OF THE INSPECTOR GENERAL, TEXAS BOARD OF CRIMINAL JUSTICE, & TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants - Appellees. _ Appeal from the United States District Court for the Northern District of Texas District Court
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 21, 2005 _ Charles R. Fulbruge III No. 04-11327 Clerk Summary Calendar _ HAROLD B. CORNISH, Plaintiff - Appellant, versus TEXAS BOARD OF CRIMINAL JUSTICE OFFICE OF THE INSPECTOR GENERAL, TEXAS BOARD OF CRIMINAL JUSTICE, & TEXAS DEPARTMENT OF CRIMINAL JUSTICE, Defendants - Appellees. _ Appeal from the United States District Court for the Northern District of Texas District Court ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 21, 2005
_____________________
Charles R. Fulbruge III
No. 04-11327 Clerk
Summary Calendar
_____________________
HAROLD B. CORNISH,
Plaintiff - Appellant,
versus
TEXAS BOARD OF CRIMINAL JUSTICE OFFICE OF THE INSPECTOR GENERAL,
TEXAS BOARD OF CRIMINAL JUSTICE, &
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
Defendants - Appellees.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
District Court Cause No. 04-CV-579-R
_________________________________________________________________
Before JONES, BARKSDALE, and PRADO, Circuit Judges.
PRADO, Circuit Judge:*
Appellant Harold B. Cornish challenges the dismissal of his
complaint in which he alleged that he was unlawfully
discriminated against in violation of Title VII. In the
complaint, Cornish maintained that the Texas Department of
Criminal Justice (TDCJ) did not hire him for an Internal Affairs
Trainee position because he is black. Cornish named three
agencies as defendants: the Texas Board of Criminal Justice
*
Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.
1
Office of the Inspector General, the Texas Board of Criminal
Justice, and TDCJ.
TDCJ responded to Cornish’s complaint by filing a motion to
dismiss. In the motion, TDCJ argued that Cornish cannot sue the
Texas Board of Criminal Justice Office of the Inspector General
because that agency does not exist as a separate entity. TDCJ
also stated that Cornish had failed to exhaust his administrative
remedies as to the Texas Board of Criminal Justice Office of the
Inspector General and the Texas Board of Criminal Justice because
he had not named them in his charge of discrimination with the
Equal Opportunity and Employment Commission (EEOC). Finally,
TDCJ complained about the insufficiency of service of process.
TDCJ argued that service was insufficient because a summons was
not addressed to, issued to, or served on either the Texas Board
of Criminal Justice or TDCJ. The district court granted the
motion and dismissed the complaint.
Cornish responded by filing a pleading that included a
notice of appeal and asked the district court to reconsider the
dismissal of his complaint. Cornish argued that his complaint
should not have been dismissed because the Marshal failed to
serve the Texas Board of Criminal Justice and TDCJ. Cornish
attached a summons issued to each defendant and the Marshal’s
notice of service reflecting service on the Texas Board of
Criminal Justice and the Texas Board of Criminal Justice Office
of the Inspector General. The district court denied the motion
2
for reconsideration.
Cornish’s notice of appeal was timely, but the motion for
reconsideration was untimely.1 Because Cornish did not file a
notice of appeal to challenge the denial of his motion for
reconsideration, or amend his notice of appeal to include the
denial of his motion for reconsideration, this court may only
review the order dismissing the complaint.2
The district court provided no reasons for dismissing
Cornish’s complaint. Based on the arguments in TDCJ’s motion,
the district court must have determined that (1) Cornish’s claims
against the Texas Board of Criminal Justice Office of the
Inspector General were precluded because no such separate entity
existed and Cornish did not exhaust his administrative remedies,
(2) Cornish’s claims against the Texas Board of Criminal Justice
were barred by Cornish’s failure to exhaust his administrative
remedies, and (3) Cornish failed to serve TDCJ with a copy of the
summons and complaint.3 Cornish challenges each of these
1
See FED. R. CIV. P. 59(e) (requiring a motion to alter or
amend the judgment to be filed no later than 10 days after the
entry of the judgment); Lavespere v. Niagara Mach. & Tool Works,
910 F.2d 167, 173 (5th Cir. 1990) (stating that, under Rule 59, a
motion to reconsider should be treated as a motion to alter or
amend the judgment).
2
See FED. R. APP. P. 4(a)(4) (specifying the effect of a
post-judgment motion on a notice of appeal).
3
See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th
Cir. 1996) (assuming the basis for the district court’s order
refusing to direct the clerk to serve the defendant where the
court provided no reason in its order).
3
determinations.
Claims against the Texas Board of Criminal Justice Office of
the Inspector General. TDCJ maintains that the district court
properly dismissed claims against the Texas Board of Criminal
Justice Office of the Inspector General because no such state
entity exists. A Texas defendant may only be sued if it has an
actual or legal existence.4 The Texas Government Code
establishes the Texas Board of Criminal Justice, but it does not
establish the Office of Inspector General as a separate entity.5
As a result, the district court did not err by dismissing
Cornish’s claims against the Texas Board of Criminal Justice
Office of Inspector General.
Claims against the Texas Board of Criminal Justice. TDCJ
contends that the district court properly dismissed Cornish’s
claims against the Texas Board of Criminal Justice because
Cornish failed to exhaust his administrative remedies. A
plaintiff must exhaust his administrative remedies before he may
pursue a Title VII claim.6 The first step in that process is to
4
Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex.
1995).
5
See TEX. GOV’T CODE §§ 492.001-.014 (Vernon 2004) (providing
for the Texas Board of Criminal Justice).
6
See Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th
1998) (explaining the prerequisites for a Title VII lawsuit).
4
file a charge of discrimination with the EEOC.7 Ordinarily, a
plaintiff may not sue a defendant who was not named as a
respondent in the EEOC charge.8 Here, Cornish named only TDCJ in
his EEOC charge. Thus, Cornish failed to exhaust his
administrative remedies as to the Texas Board of Criminal
Justice, and the district court did not err by dismissing
Cornish’s claims against that agency.
Claims against TDCJ. TDCJ maintains that the district court
properly dismissed Cornish’s claims against it because it was not
Cornish’s prospective employer. TDCJ, however, did not raise
this argument in the district court. Ordinarily, this court does
not consider an argument raised for the first time on appeal
unless it involves a purely legal issue and the failure to
consider the argument would result in manifest injustice.9 The
question whether TDCJ is a prospective employer is not a purely
legal issue10 and the failure to consider this question will not
7
See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997)
(“The filing of an administrative complaint is a jurisdictional
prerequisite to a Title VII action.”).
8
See 42 U.S.C. § 2000e-5(f)(1) (permitting a plaintiff to
bring a civil action against the respondent named in the charge).
9
Diaz v. Collins, 114 F.3d 69, 71 n.5 (5th Cir. 1997);
Forbush v. J.C. Penney Co.,
98 F.3d 817, 822 (5th Cir. 1996);
Blanks v. Murco Drilling Corp.,
766 F.2d 891, 897 (5th Cir.
1985).
10
See Nowlin v. Resolution Trust Corp., 33 F.3d 498, 505
(5th Cir. 1994) (explaining that the right of control is a
crucial factor in determining whether a defendant is a Title VII
5
result in a manifest injustice. Thus, the court will consider
only whether the district court erred by dismissing Cornish’s
claims against TDCJ for insufficient service of process.
The court reviews “a dismissal for failure to effect timely
service of process for an abuse of discretion.”11 Ordinarily,
the plaintiff must serve each defendant with a copy of the
summons and complaint.12 If the plaintiff fails to serve a
defendant within 120 days, the court must dismiss the action
without prejudice as to that defendant or direct that service be
effected within a specified time.13 Despite this general rule,
special rules “govern the procedure for service of process in
cases involving in forma pauperis [(IFP)] plaintiffs like”
Cornish.14 In those cases, section 1915 of title 28 provides
that the “officers of the court shall issue and serve all
process.”15 In addition, Rule 4 requires the district court to
appoint a person to serve process in an IFP case. Once the IFP
plaintiff has taken reasonable steps to identify the
plaintiff’s employer); Mares v. Marsh, 777 F.2d 1066, 1067 (5th
Cir. 1985) (explaining how determinations about employer status
should be made and exploring the facts of the particular
situation).
11
Lindsey, 101 F.3d at 445.
12
FED. R. CIV. P. 4(c)(1).
13
FED. R. CIV. P. 4(m).
14
Lindsey, 101 F.3d at 446.
15
28 U.S.C. § 1915(d).
6
defendant(s), together Rule 4 and section 1915 require the court
“to issue plaintiff's process to a United States Marshal who must
in turn effectuate service upon the defendants.”16
Here, the record indicates that the magistrate judge gave
Cornish permission to proceed IFP on March 29, 2004. In its
order, the magistrate judge directed the district clerk to “issue
summons and send them, together with copies of the complaint . .
. to the United States Marshal for service.” The order also
ordered the Marshal to “serve the defendants.” The record,
however, does not reflect that the Marshal served TDCJ.
This court has determined that an IFP plaintiff is entitled
to rely on service by the Marshal and that the plaintiff will not
be penalized for the Marshal’s failure to properly effect service
where the plaintiff is not at fault.17 Here, the record shows
that Cornish identified the defendants and obtained a summons for
16
Lindsey, 101 F.3d at 446 (internal quotations omitted).
17
Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987); see
Byrd v. Stone,
94 F.3d 217, 220 (6th Cir. 1996) (determining that
the failure of the clerk and the Marshal to accomplish their
respective duties constituted good cause for reinstating the IFP
plaintiff’s lawsuit); Dumaguin v. Sec’y of Health & Human Servs.,
28 F.3d 1218, 1221 (D.C. Cir. 1994) (finding that the Marshal’s
failure to effectuate service of process was good cause under
Rule 4); Puett v. Blandford,
912 F.2d 270, 276 (9th Cir. 1990)
(explaining that the IFP plaintiff will not be penalized for the
Marshal’s failure to effect service as required by section 1915);
Sellers v. United States,
902 F.2d 598, 602 (7th Cir. 1990)
(holding that good cause exists for reviving an IFP inmate’s
complaint when the district court instructs the Marshal to serve
the defendant and the prisoner provides the information needed to
identify the defendant).
7
each defendant from the clerk. The Marshal, however, did not
serve TDCJ with a summons.
The Marshal failed to perform his assigned task. Where the
Marshal fails to serve a properly addressed summons to a
defendant, the district court abuses its discretion by dismissing
an IFP plaintiff’s complaint. Because that is what happened
here, the district court erred by dismissing Cornish’s claims
against TDCJ. As a result, the court REVERSES and REMANDS the
order of dismissal as to TDCJ, and AFFIRMS the order in all other
respects. Back in the district court, Cornish can properly raise
his argument about why TDCJ is a proper defendant in this case.
REVERSED & REMANDED IN PART & AFFIRMED IN PART.
8
