Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-14-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3501




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Recommended Citation
"Abreu v. Comm Social Security" (2006). 2006 Decisions. Paper 1433.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1433


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                                                NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-3501
                                ________________

                               ERNESTO ABREU,

                                          Appellant

                                           v.

                              COMMISSIONER OF
                              SOCIAL SECURITY

                   ____________________________________

                 On Appeal From the United States District Court
                           For the District of New Jersey
                            (D.C. Civ. No. 03-cv-05886)
                 District Judge: Honorable Dennis M. Cavanaugh
                 _______________________________________


                    Submitted Under Third Circuit LAR 34.1(a)
                                January 26, 2006

       Before: MCKEE, FUENTES AND NYGAARD, CIRCUIT JUDGES

                              (Filed: March 14, 2006)

                           _______________________

                                  OPINION
                           _______________________

PER CURIAM

    In December 2003, Ernesto Abreu filed a civil action in the United States District
Court for the District of New Jersey, seeking review of a decision of the Commissioner of

Social Security. Abreu applied for, and the District Court granted him, in forma pauperis

status pursuant to 28 U.S.C. § 1915. In April 2005, the District Court issued an order

warning Abreu to present proof that he had served the summons and complaint or to

appear to show cause why the action should not be dismissed for failure to effect timely

service. On May 17, 2005, the District Court held a hearing on the matter. Abreu

appeared and explained that he had not served the summons and complaint because he did

not have a lawyer or knowledge of the procedural rules. The District Court informed him

that he could move for appointment of counsel, provided him with a copy of the relevant

procedural rules, and granted him thirty additional days to effect service of process. After

the thirty days had passed without service of process, the District Court dismissed

Abreu’s complaint without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil

Procedure. Abreu appeals.

       We have jurisdiction under 28 U.S.C. § 1291. The dismissal without prejudice

was a final decision, because Abreu would be time-barred from refiling his complaint.

See Ahmed v. Dragovich, 

, 207 (3d Cir. 2002) (holding that an order

dismissing a claim without prejudice is a final and appealable order if the statute of

limitations for that claim has expired); 42 U.S.C. § 405(g) (providing a sixty-day

limitations period for seeking judicial review of a decision by the Commissioner of Social

Security). We review the District Court’s decision for abuse of discretion. See Petrucelli



                                              2
v. Bohringer & Ratzinger, 

, 1308 (3d Cir. 1995).

      We hold that the District Court abused its discretion; accordingly, we will vacate

the District Court’s order. Rule 4(m) of the Federal Rules of Civil Procedure provides

that if a plaintiff does not effect service within 120 days after filing a complaint, the

District Court “shall dismiss the action without prejudice . . . or direct that service be

effected within a specific time.” Fed. R. Civ. P. 4(m). However, under Rule 4(c)(2), the

District Court is obligated to appoint a United States marshal or deputy United States

marshal to effect service when a plaintiff is permitted to proceed in forma pauperis, as

Abreu was. Fed. R. Civ. P. 4(c)(2). It does not appear that any person was appointed to

effect service on Abreu’s behalf in accordance with Rule 4(c)(2). Therefore, we will

vacate the District Court’s order dismissing Abreu’s complaint. We remand this matter to

the District Court for further proceedings consistent with this opinion.