Case: 12-20312       Document: 00512154294         Page: 1     Date Filed: 02/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         February 25, 2013

                                     No. 12-20312                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



AHMED S. SHABAZZ, also known as Clarence M Hines,

                                                  Plaintiff - Appellant
v.

CITY OF HOUSTON; ANNISE PARKER; ADRIAN GARCIA; J. B. SMITH;
HARRIS COUNTY; SMITH COUNTY; GREG ABBOTT; TROY P. MARTIN;
DONNA BORDEN; UNITED STATES OF AMERICA,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:11-CV-1125


Before KING, CLEMENT, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Pro se Plaintiff-Appellant Ahmed Shabazz filed a civil rights complaint
against the United States and various Texas government officers and entities,
seeking money damages. The defendants separately moved to dismiss Shabazz’s
claims under Rule 12(b)(4) and (5) for insufficient process and insufficient
service of process, arguing that Shabazz himself mailed summonses to the

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                   No. 12-20312

defendants. See Fed. R. Civ. P. 4(c)(2) (service can be effected by “[a]ny person
who is . . . not a party”). Shabazz responded that service was proper, but
provided no evidence supporting this contention. He also argued that no
defendant was prejudiced by improper service, and that he could correct
deficient service. Eight months after Shabazz responded, the district court
issued an order that, fairly read, granted the defendants’ motions. The court
denied all other pending motions as moot.
      We review the dismissal of a complaint for improper service under the
abuse of discretion standard. Sys. Signs Supplies v. U.S. Dep’t of Justice, 

, 1013 (5th Cir. 1990) (per curiam). “When service of process is
challenged, the serving party bears the burden of proving its validity or good
cause” for failing properly to effect service. 

relies on Rule 4(e)(1), which permits a plaintiff
seeking to serve process in a federal action to “follow[] state law for serving a
summons in an action brought in courts of general jurisdiction in the state where
the district court is located or where service is made.” Although Texas law
permits service to be effected through certified mail, a person who is a party to
the suit cannot serve process. See Tex. R. Civ. P. 103, 106(a)(2); Delta S.S. Lines,
Inc. v. Albano, 

, 730 (5th Cir. 1985). As noted above, Fed. R. Civ. P.
4(c)(2) also prohibits service by a party. See Shabazz v. White, 301 F. App’x 316,
317 (5th Cir. 2008) (per curiam) (“Certified mail from Shabazz did not constitute
proper service on the defendants under federal or Texas service rules.”); see also
Constien v. United States, 

, 1213–14 (10th Cir. 2010) (Rule 4(c)(2)
“contains no mailing exception to the nonparty requirement for service”).
      Shabazz presented no evidence that someone other than himself served
the defendants, and did not seek to correct deficient service despite having
ample opportunity after being alerted to the mistake. Because service was thus



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                                  No. 12-20312

invalid, and Shabazz failed to show good cause, the district court did not abuse
its discretion by dismissing his complaint.
      Shabazz also challenges the district court’s denial of his motion for
sanctions and request for a default judgment, both of which decisions we review
for abuse of discretion. Brown v. Oil States Skagit Smatco, 

, 76 (5th
Cir. 2011) (per curiam); Lewis v. Lynn, 

, 767 (5th Cir. 2001) (per
curiam). In the absence of valid service, the district court did not err in denying
these motions.
      Shabazz further argues that the district court improperly dismissed his
claims against the United States on improper-service grounds because the
United States did not raise an improper-service argument below. Nonetheless,
dismissal was proper because subject matter jurisdiction does not exist as to
these claims. Absent a valid waiver, the United States has sovereign immunity
against suit. United States v. Mitchell, 

, 538 (1980). Sovereign
immunity presents a question of subject matter jurisdiction, which we have an
independent obligation to examine. Price v. United States, 

, 49 (5th
Cir. 1995). We can find no authority or record evidence suggesting that the
United States has waived its immunity against Shabazz’s claims for
constitutional torts or violations of his “universal human rights.” See F.D.I.C. v.
Meyer, 

, 478 (1994) (United States has not waived immunity against
constitutional tort claims under the Federal Tort Claims Act); 

(a sovereign immunity waiver is to be construed narrowly).
      For the foregoing reasons, we AFFIRM.




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