Filed: Apr. 19, 2012
Latest Update: Feb. 12, 2020
Summary: Defendants, Appellees.judgment of the district court is affirmed.Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).residential address;-4-, a law enforcement officer, and Baez did that.order to attempt service pursuant to Rule 4(e)(2)(B).service from Kleczkowski pursuant to Fed.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1787
SANDY BAEZ,
Plaintiff, Appellant,
v.
MR. CONNELLY, ET AL,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.
Sandy Baez on brief pro se.
Ly T. Chin, Assistant U.S. Attorney, and Peter F. Neronha,
United States Attorney, on brief for appellee.
April 19, 2012
Per Curiam. After a thorough review of the record and of
the parties' submissions, we vacate the district court's dismissal
without prejudice of the claims against defendant/appellee John
Kleczkowski ("Kleczkowski") in his individual capacity and remand
the matter for further proceedings. In all other respects, the
judgment of the district court is affirmed.
We find no error in the district court's dismissal of the
claims against defendants/appellees Michael Naylor ("Naylor") and
Anthony Cardello ("Cardello") in their individual capacities. For
the reasons set out in the district court's Memorandum and Order
dated June 16, 2011, the claim by the plaintiff/appellant, Sandy
Baez ("Baez"), that Naylor used excessive force against him while
transporting him is barred under Heck v. Humphrey, 512 U.S. 477
(1994). For the same reason, the related claim against Cardello is
also barred under Heck. The claim that Naylor violated Baez's
civil rights by failing to read his rights to him pursuant to
Miranda v. Arizona,
384 U.S. 436 (1966), is not cognizable under
Bivens v. Six Unknown Named Agents,
403 U.S. 388 (1971). See
Chavez v. Martinez,
538 U.S. 760, 772 (2003). There is no
authority for Baez's suggestion that Naylor's alleged violation of
procedure violated Baez's constitutional rights or that it provides
a basis for a Bivens claim.
We also find no error in the district court's dismissal
with prejudice of the claims against Naylor, Cardello and
-2-
Kleczkowski in their official capacities. Those claims are barred
by principles of sovereign immunity. See McCloskey v. Mueller, 446
F.3d 262, 271-72 (1st Cir. 2006).
The court did err in dismissing without prejudice the
claims against Kleczkowski in his individual capacity. While we
agree with the district court's conclusion that Baez did not
accomplish service of process with respect to Kleczkowski, we note
that at the time the U.S. Marshal's Service was attempting to
effect service of process on Baez's behalf pursuant to 28 U.S.C. ยง
1915(d) and Fed. R. Civ. P. 4(c)(3), the case was pending in the
U.S. District Court for the District of Columbia. Accordingly,
Baez (through the U.S. Marshal's Service) may have been permitted
to attempt service of process pursuant to District of Columbia law.
See Fed. R. Civ. P. 4(e)(1). It appears that service of process
was attempted pursuant to D.C. R. Civ. P. 4(c)(3), which provides
as follows:
[S]ervice also may be effected by mailing a
copy of the summons, complaint and initial
order to the person to be served by registered
or certified mail, return receipt requested.
It appears, however, that the return of service was incomplete
under the District of Columbia Rule. The rule further provides:
If service is made by registered or certified
mail under paragraph (c)(3) of the Rule, the
return shall be accompanied by the signed
receipt attached to an affidavit which shall
specifically state the caption and number of
the case; the name and address of the person
who posted the registered or certified letter;
-3-
the fact that such letter contained a summons,
a copy of the complaint and the initial order
setting the case for an Initial Scheduling
Conference; and, if the return receipt does
not purport to be signed by the party named in
the summons, then specific facts from which
the Court can determine that the person who
signed the receipt meets the appropriate
qualifications for receipt of process set out
in subdivisions (e) through (j) of the Rule.
D.C. R. Civ. P. 4(l)(2). The signature on Kleczkowski's signed
return receipt is illegible and does not indicate whether it was
signed by Kleczkowski personally or by an authorized agent. Baez
did not proffer "specific facts from which the Court [could]
determine that the person who signed the receipt [met] the
appropriate qualifications for receipt of process[.]" Without such
a proffer, it appears that service of process on Kleczkowski was
not perfected.
Nevertheless, we conclude that Baez showed good cause for
his failure to effect timely service on Kleczkowski and that the
district court therefore was required to extend the period for
service of process. See Fed. R. Civ. P. 4(m). On this record and
without some further explanation, we do not think the district
court should have required Baez -- a prisoner -- to provide the
home addresses of the federal law enforcement agents who arrested
him. A prisoner may not have access to an arresting officer's
residential address; serious security concerns might arise if a
prisoner were able to obtain that information. It may be
reasonable to require a prisoner to provide a business address for
-4-
a law enforcement officer, and Baez did that. That should have
been sufficient. With Kleczkowski's full name and his business
address, it would seem that the U.S. Marshal's Service likely would
have been able to accomplish service of process pursuant to Rule
4(e)(2)(A) if the district court had directed the Service to make
further attempts. If the Marshal's Service had been unable to
serve Kleczkowski personally pursuant to Rule 4(e)(2)(A), a deputy
U.S. Marshal could have requested a home address for Kleczkowski
from the local Drug Enforcement Agency ("DEA") headquarters in
order to attempt service pursuant to Rule 4(e)(2)(B). The
Marshal's Service might even have attempted to obtain a waiver of
service from Kleczkowski pursuant to Fed. R. Civ. P. 4(d). The
district court abused its discretion when it placed the onus on the
prisoner for providing the defendants' home addresses. See
Laurence v. Hall, 551 F.3d at 94 ("[A] plaintiff proceeding [in
forma pauperis] shows good cause [for failing to effect timely
service of process] when either the district court or the United
States Marshals Service fails to fulfill its obligations under
section 1915(d) and Rule 4(c)(3).").
Finally, we conclude that the district court did not
abuse its discretion in refusing to extend the time for service of
process on defendants Connelly and McNutty. Baez did not provide
a first name for either defendant and provided two different
spellings for each last name. He first told the court that McNutty
-5-
was a DEA agent and that Connelly worked for the Warwick, Rhode
Island Police Department; he later told the court that both
individuals worked for the Providence, Rhode Island Police
Department. This information was not sufficient to allow the U.S.
Marshal's Service to complete service of process. We take no
position on whether our analysis would have been different had Baez
requested preliminary discovery in order to obtain more identifying
information for these two defendants and had the district court
denied the request.
The judgment in favor of defendant/appellee John
Kleczkowski in his individual capacity is vacated and the case is
remanded for further proceedings consistent with this Opinion. In
all other respects, the judgment of the district court is affirmed.
-6-
