                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         FEB 24 2005
                                 TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


PATRICK E. THOMAS,

          Plaintiff-Appellant,
                                                       No. 03-6121
v.                                            (Western District of Oklahoma)
                                                (D.C. No. CIV-03-51-C)
OFFICE OF JUVENILE AFFAIRS,

          Defendant-Appellee.




                             ORDER AND JUDGMENT *


Before EBEL, MURPHY, and McCONNELL, Circuit Judges.


      After examining the briefs and appellate record, this court has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      On January 9, 2003, Appellant Patrick E. Thomas filed a compliant in

federal district court alleging that Appellee discriminated against him while he


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
was employed by the Central Oklahoma Juvenile Center. Thomas mailed the

summons and complaint by certified mail to Tony Sardis. Mr. Sardis is the

Supervisor for Federal Grants for the Oklahoma Juvenile Center. Appellee

entered a special appearance and moved to dismiss Thomas’ complaint, arguing

the summons was not served on the proper person. See Fed R. Civ. P. 4(j)(2);

Okla. Stat. tit. 12, § 2004(C)(1)(c)(5). Appellee supported its motion with an

affidavit stating that Mr. Sardis is neither the chief executive officer of the State

of Oklahoma, the chief Executive Officer of the Office of Juvenile Affairs, nor

the officer or individual whose duty it is to maintain the official records of the

State of Oklahoma or of the Office of Juvenile Affairs.

      On March 18, 2003, the district court granted Appellee’s motion and

dismissed Thomas’ complaint without prejudice. The court noted that Thomas

had failed to respond to the Appellee’s motion or contest the factual allegations

made in the supporting affidavit, and had made no further attempt to serve the

summons and complaint. Thomas appealed. 1

      Pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, a district

court may dismiss an action without prejudice if the plaintiff fails to serve the

summons and complaint upon the defendant within 120 days. See Scott v. Hern,



      1
        Thomas’ notice of appeal filed on April 18, 2003, was timely because the
district court failed to enter judgment in a separate document. See Fed. R. Civ. P.
58(b)(2)(B).

                                          -2-
216 F.3d 897, 912 (10th Cir. 2000). The district court dismissed Thomas’

complaint sixty-eight days after it was filed. Accordingly, we conclude that the

district court abused its discretion when it dismissed Thomas’ complaint.

      The judgment of the district court is reversed and the matter remanded for

further proceedings not inconsistent with this opinion.

                                              ENTERED FOR THE COURT



                                              Michael R. Murphy
                                              Circuit Judge




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