            NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                       File Name: 05a0129n.06
                       Filed: February 16, 2005
                       File Name: 05a0129n.06
                       Filed: February 16, 2006

                                        No. 03-4474

                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT



ROBERT KEITH ABEL,                         )
                                           )
       Plaintiff-Appellant,                )       ON APPEAL FROM THE
                                           )       UNITED STATES DISTRICT
v.                                         )       COURT FOR THE NORTHERN
                                           )       DISTRICT OF OHIO
VAN A. HARP, et al.,                       )
                                           )
       Defendants-Appellees,               )


BEFORE: RYAN and COOK, Circuit Judges; BELL, District Judge.*

       BELL, District Judge. Plaintiff-Appellant Robert Keith Abel, a pro se federal

prisoner, appeals the district court’s order dismissing his complaint for failure to personally

serve the defendants. This case was submitted without oral argument. For the reasons that

follow, we reverse and remand the order of dismissal.

       Abel filed this action pursuant to the doctrine announced in Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), seeking money damages



       *
        The Honorable Robert Holmes Bell, United States District Judge for the Western
District of Michigan, sitting by designation.
No. 03-4474                                    2
Abel v. Harp, et al.

against six FBI agents in their individual capacities for injuries he sustained during his arrest

for bank robbery. Abel alleged that three agents (Richard A. Wrenn, Phillip J. Torsney, and

James A. Larkin) used excessive force against him and that the three other agents (Van A.

Harp, Robin Rhoads, and Michael D. Vahue) failed to investigate or respond to his complaint

regarding the circumstances of his apprehension. Abel was granted permission to proceed

in forma pauperis and copies of his summons and complaint were issued to the United States

Marshal for service on November 1, 2002. The Marshals Service served the individual

defendants by certified mail.

       The defendants moved to dismiss Abel’s amended complaint. The magistrate judge

issued a report and recommendation recommending that the complaint against Harp, Rhoads

and Vahue be dismissed on the basis that Abel had conceded that these three defendants

“should be amended from the complaint” and that it was Abel's intent to remove them as

parties. The magistrate judge recommended that the motion to dismiss filed on behalf of

Defendants Wrenn, Torsney and Larkin be denied as moot as a result of the magistrate

judge’s February 13, 2003, ruling that Abel's amended complaint would be “deemed as

served” upon the defendants.

       The district court judge adopted the report and recommendation of the magistrate

judge in part and dismissed the complaint against Harp, Rhoads, and Vahue. However, the

district judge did not adopt that portion of the report and recommendation that related to the

remaining defendants. Instead, the court ordered that the complaint against Wrenn, Torsney
No. 03-4474                                   3
Abel v. Harp, et al.

and Larkin be dismissed for lack of personal jurisdiction and insufficiency of service of

process.

       On appeal Abel contends that the district court abused its discretion when it dismissed

his Bivens action against Wrenn, Torsney, and Larkin and that the order dismissing the case

should accordingly be reversed.

       We review a district court judgment dismissing a complaint for failure to effect timely

service of process for abuse of discretion. Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996);

Habib v. Gen. Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994). "An abuse of discretion occurs

when the district court has relied on clearly erroneous findings of fact, when it improperly

applies the law, or when it uses an erroneous legal standard." Tahfs v. Proctor, 316 F.3d 584,

593 (6th Cir. 2003) (citing Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir. 1995)).

"'Abuse of discretion is defined as a definite and firm conviction that the trial court

committed a clear error of judgment.'" Id. (quoting Amernational Indus., Inc. v.

Action-Tungsram, Inc., 925 F.2d 970, 975 (6th Cir. 1991)).

       The district court dismissed Abel's action against Defendants Larkin, Torsney and

Wrenn for lack of personal jurisdiction and insufficiency of service of process. Specifically,

the district court found that Abel failed to personally serve these defendants within the

120-day time period set forth in FED. R. CIV. P. 4(m).

       A plaintiff is responsible for serving the summons and complaint within the applicable

time period. FED. R. CIV. P. 4(c)(1). Because Bivens actions are filed against federal officers

in their individual capacities, Abel was required to serve the United States in the manner
No. 03-4474                                   4
Abel v. Harp, et al.

prescribed by Rule 4(i)(1), and the individual defendants in the manner prescribed by Rule

4(e).1 Federal officers sued in their individual capacities must be personally served in

accordance with the ordinary rules for service on individuals. Ecclesiastical Order of the Ism

of Am, Inc. v. Chasin, 845 F.2d 113, 116 (6th Cir. 1988). Without such personal service, a

district court is without jurisdiction to render judgment against a defendant. Friedman v.

Estate of Presser, 929 F.2d 1151, 1156 (6th Cir. 1991). The time limit for service of process

is 120 days after the filing of the complaint. FED. R. CIV. P. 4(m). "Absent a showing of

good cause to justify a failure to effect timely service, the Federal Rules of Civil Procedure

compel dismissal." Byrd, 94 F.3d at 219 (citing Habib, 15 F.3d at 73).

       Abel did not serve each of the individual defendants personally. The individual

defendants were served only by certified mail. Although copies of the summons and

complaint were also mailed to the Cleveland Field Office of the FBI, delivery on an

employer does not constitute proper service on the employee who has been sued in his

individual capacity. Ecclesiastical Order of the Ism of Am, 845 F.2d at 116 (holding that

service on defendant’s employer insufficient). Accordingly, the district court properly


       1
              Service on an officer or employee of the United States sued in
              an individual capacity for acts or omissions occurring in
              connection with the performance of duties on behalf of the
              United States – whether or not the officer or employee is sued
              also in an official capacity – is effected by serving the United
              States in the manner prescribed by Rule 4(i)(1) and by serving
              the office or employee in the manner prescribed by Rule 4(e),
              (f), or (g).

FED. R. CIV. P. 4(i)(2)(B).
No. 03-4474                                     5
Abel v. Harp, et al.

determined that Wrenn, Torsney and Larkin had never been properly served and that in the

absence of proper service it could not exercise personal jurisdiction over these defendants.

The district court was also correct in its determination that the 120-days for service had

elapsed. We conclude, nevertheless, that the district court abused its discretion in dismissing

the complaint.

       Rule 4(m) requires dismissal only if the plaintiff has not shown good cause for his

failure to serve the summons and complaint within the 120-day time period. FED. R. CIV. P.

4(m). If a plaintiff does show good cause for the failure "the court shall extend the time for

service for an appropriate period." Id. The plaintiff bears the burden of establishing good

cause for the failure. Habib, 15 F.3d at 73. Because the determination of good cause is a

discretionary determination entrusted to the district court, we may not simply substitute our

own judgment for that court's. In this case, however, the district court failed to undertake any

good faith analysis at all. Because the district court did not exercise its discretion, it is left

to this court to determine whether Abel showed good cause excusing his failure to timely

serve the complaint.

       When an individual is granted leave to proceed in forma pauperis, "[t]he officers of

the court shall issue and serve all process, and perform all duties in such cases." 28 U.S.C.

§ 1915(d).

       FED. R. CIV. P. 4(c)(2) dovetails with § 1915(c) by providing that the court
       must appoint a United States Marshal to serve plaintiff's process "when the
       plaintiff is authorized to proceed in forma pauperis pursuant to 28 U.S.C.
       § 1915." Together, Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the
       proposition that when a plaintiff is proceeding in forma pauperis the court is
       obligated to issue plaintiff's process to a United States Marshal who must in
No. 03-4474                                    6
Abel v. Harp, et al.

       turn effectuate service upon the defendants, thereby relieving a plaintiff of the
       burden to serve process once reasonable steps have been taken to identify for
       the court the defendants named in the complaint.

Byrd, 94 F.3d at 219.

       Abel's complaint clearly identified the six individual defendants, clearly indicated that

they were being sued in their individual capacities, and identified the location of the FBI

office where they were working at all times relevant to the complaint. In accordance with

§ 1915(c) and Rule 4(c)(2), the district court forwarded Abel's paperwork to the Marshals

Service for service of process.

       In Byrd we held that the plaintiff had demonstrated good cause for failure to timely

serve the defendants where the clerk's office failed to issue plaintiff's summons and failed to

appoint a United States Marshal to serve the summons. 94 F.3d at 220. "[T]he clerk's office

and the Marshals Service were plainly derelict in performing their assigned tasks with respect

to plaintiff's original complaint. Worse, the Marshals Service incorrectly informed plaintiff

that it was taking care of the service of his summons when, in fact, no summons was issued

at all." Id. We held that "the utter failure of the clerk and the Marshals Service to

accomplish their respective duties to issue and serve process for plaintiff proceeding in forma

pauperis constitutes a showing of good cause under FED. R. CIV. P. 4." Id. See also Olsen v.

Mapes, 333 F.3d 1199, 1204-05 (10th Cir. 2003) (holding that in forma pauperis plaintiffs

were not culpable for failure to timely serve where there was no evidence that they failed to

cooperate with the Marshals Service); Young v. Quinlin, 960 F.2d 351, 359 (3d Cir. 1992)

(holding that in forma pauperis plaintiff "should not be penalized for failure to effect service
No. 03-4474                                    7
Abel v. Harp, et al.

where it failed through no fault of his own."); Rochon v. Dawson, 828 F.2d 1107, 1110 (5th

Cir. 1987) ("a plaintiff proceeding in forma pauperis is entitled to rely upon service by the

U.S. Marshals and should not be penalized for failure of the Marshal's Service to properly

effect service of process, where such failure is through no fault of the litigant.").

       The defendants contend that this case is distinguishable from Byrd because the

Marshals Service made no misrepresentations to Abel regarding service. Moreover, the

defendants assert that even though the Marshals Service was required to serve process on

behalf of Abel, Abel was not totally divested of his own responsibilities under Rule 4(c)(1)

to effect service of process. They contend that because Abel was aware that the defendants

had not been properly served, it was incumbent on him either to request the Marshals Service

to properly serve the defendants by hand delivery, or to request the court to order the

Marshals Service to properly serve the defendants individually. Instead, they contend, he sat

idly by. In this respect, the defendants contend that this case is more like Rochon than Byrd.

       The Fifth Circuit held in Rochon that although an incarcerated plaintiff proceeding in

forma pauperis may rely on service by the U.S. Marshals, he "may not remain silent and do

nothing to effectuate such service." Id. At a minimum, he should "request service upon the

appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff

has knowledge." Id. The court faulted the plaintiff in Rochon for failing to request that the

Marshals Service properly serve the appropriate defendant after the court specifically advised

the plaintiff that the defendant had not been served. Id.
No. 03-4474                                    8
Abel v. Harp, et al.

        Contrary to the defendants' assertions, and in contrast to the plaintiff in Rochon, Abel

did not idly sit by when he knew there was a problem with service on the defendants. Abel

did what he could to effect personal service through the Marshals Service. On November 3,

2002, he wrote to the Marshals Service and expressed his concern "that the complaints and

summonses are hand delivered to the individual defendants in compliance with the court's

rules." The same day he copied the Marshals Service with his letter to the FBI asking the

FBI to provide the Marshals Service with information as to the whereabouts of the individual

defendants because "the Marshals will need to personally serve each defendant/agent." The

Marshals Service advised Abel that it had served all of the defendants. Although the docket

sheet only reflected service by certified mail, the Marshals Service never informed Abel that

it had not personally served the defendants as Abel had requested. In December 2002 and

January 2003, Abel alerted the court to possible deficiencies in service of process in his Rule

60 motion. The magistrate judge reviewed the service requirements of Rule 4(i), including

Rule 4(i)(2)(B) governing individual capacity suits, and then advised that it would "protect

the plaintiff's rights" by directing the clerk to serve the United States Attorney and the

Attorney General in the manner called for by Rule 4(i). The magistrate judge subsequently

entered an order stating that Abel's amended complaint "shall be deemed as served upon the

defendants."

       Although Abel attempted to ensure personal service on the defendants, he was advised

by both the Marshals Service and the court that service was completed. Under the

circumstances there is little more that we can expect an incarcerated defendant appearing in
No. 03-4474                                    9
Abel v. Harp, et al.

pro per to do to effectuate proper service of process. Abel's failure to comply with the

requirements of Rule 4(e) is not attributable to any fault of his own.

       The record clearly establishes that Abel demonstrated good cause for his failure to

effectuate service of process on the individual defendants. Yet, the district court omitted

from its analysis any consideration of good faith, including the fact that Abel was proceeding

in forma pauperis pursuant to 28 U.S.C. § 1915(d), the efforts Abel made to ensure proper

personal service, and the failures or oversights attributable to the court and the Marshals

Service in recognizing the deficiencies in the service. We are firmly convinced that the

district court abused its discretion in dismissing this case.

       Accordingly, the district court's order dismissing the case is REVERSED and the case

is REMANDED with instructions to the district court to extend the time for service for an

appropriate period and to direct the Marshals Service to personally serve Defendants Larkin,

Torsney and Wrenn so that this case may proceed on its merits.
