                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-28-2008

Mathies v. Silver
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1770




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Recommended Citation
"Mathies v. Silver" (2008). 2008 Decisions. Paper 1697.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/1697


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                Nos. 07-1770 & 07-2403
                                     ___________

                                 STEPHEN MATHIES,
                                          Appellant

                                             v.

                                   SETH SILVER;
                                 MARIA MARTINEZ
                             _________________________

                      Appeals from the United States District Court
                              for the District of New Jersey
                              (D.C. Civil No. 04-cv-02882)
                      District Judge: Honorable Robert B. Kugler
                            __________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 25, 2008

               Before: RENDELL, JORDAN and GARTH, Circuit Judges

                                (Filed: January 28, 2008)
                                      ___________

                              OPINION OF THE COURT
                                   ___________

PER CURIAM

      Appellant Stephen Mathies, an inmate at the Federal Correctional Institute in

Fairton, New Jersey, appeals pro se from the District Court’s orders dismissing his

complaint filed pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau
Narcotics, 403 U.S. 388 (1971). We will affirm the District Court’s order dismissing the

complaint against defendant Maria Martinez and will vacate the District Court’s order

dismissing the complaint against defendant Dr. Seth Silver.

       The parties are familiar with the facts and therefore we will only briefly summarize

them here. In June 2004, Mathies filed a complaint alleging that, while incarcerated, he

underwent surgery to repair a ruptured achilles tendon. Mathies contends that Silver, the

orthopedic surgeon who performed the surgery, failed to provide adequate follow-up care

and that Martinez, a nurse practitioner at the prison, denied him immediate access to a

physician when his wound became infected. In addition to his complaint, Mathies

submitted an application to proceed in forma pauperis (“IFP”), but after the District Court

ordered that he either submit certain institutional account statements or remit the $150

filing fee, Mathies paid the filing fee. In September 2006, the Clerk of the Court

forwarded blank summonses to Mathies. The District Court subsequently granted

Mathies two extensions of time to effectuate service. In the order granting a second

extension of time, the District Court informed Mathies of the service requirements of

Federal Rule of Civil Procedure 4, specifically noting that (1) Mathies could not effect

service upon officers or employees of the United States by certified mail; and (2) the

Clerk of the Court must sign the summonses.

       In May 2006, Mathies sent a letter to the District Court claiming to have effected

service on the defendants and enclosing certified mail receipts addressed to the Attorney

General of the United States and the United States Attorney’s Office in Camden, New

                                             2
Jersey, as well as an unsigned summons addressed to Silver. On June 30, 2006, Martinez

moved to dismiss the complaint under Federal Rules of Civil Procedure 4(m), 12(b)(2),

and 12(b)(5) because “the Court is without jurisdiction over her person, process has never

been issued by the Court, defendant Martinez has never been served with process . . .and

the time in which to effect service has expired.” The District Court granted Martinez’s

motion to dismiss pursuant to Rule 4(m), reasoning that Mathies had served Martinez and

the United States Attorney with an “incomplete summons,” and had failed to show good

cause for his failure to effect service. Mathies filed a timely notice of appeal (C.A. No.

07-1770).

       Subsequently, pursuant to District of New Jersey Local Civil Rule 41.1(a)

(dismissal of inactive cases), a Notice of Call for Dismissal of the complaint against

Silver was entered on April 13, 2007, because the case had been pending for more than

120 days without any proceeding taking place thereon. On April 25, 2007, Mathies filed

an opposition to the Notice of Call. The District Court then dismissed the case against

Silver “without prejudice” on April 27, 2007, noting that “no objection” had been entered

“at a call of the calendar.”1 Mathies then filed a second timely notice of appeal (C.A. No.

07-2403). The appeals in C.A. Nos. 07-1770 and 07-2403 have now been consolidated.

       We have jurisdiction over this appeal under 28 U.S.C. § 1291. Ordinarily, we

exercise plenary review over issues of service under Rule 4 and review decisions about


  1
     The District Court’s dismissal was essentially with prejudice because the statute of
limitations appears to have run on Mathies’ claims.

                                             3
whether good cause exists to extend the 120-day service period for abuse of discretion.

Ayres v. Jacobs & Crumplar, 99 F.3d 565, 569 n. 4 (3d Cir. 1996) (citations omitted).

We exercise plenary review over the question of whether a summons conferred

jurisdiction over a defendant. See id. This Court reviews dismissals for failure to

prosecute under Rule 41(b) for abuse of discretion. See Adams v. Trustees of New Jersey

Brewery Employees’ Pension Trust Fund, 29 F.3d 863, 870 (3d Cir. 1994). We can

affirm the District Court on any basis supported in the record. See Fairview Twp. v.

EPA, 773 F.2d 517, 524 n.15 (3d Cir. 1985).

       We will affirm the order of the District Court entered on March 5, 2007, granting

Martinez’s motion to dismiss. The failure of a plaintiff to obtain valid process from the

court to provide it with personal jurisdiction over a defendant in a civil case is fatal to the

plaintiff’s case. Ayres, 99 F.3d at 569. A summons which is not signed and sealed by the

Clerk of the Court does not confer personal jurisdiction over the defendant. Id. Upon

proper motion, such a suit should be dismissed under Rule 12(b)(2). Id. Under such

circumstances, “it becomes unnecessary for the district courts to consider such questions

as whether service was properly made, or whether an extension to the 120-day service

period should be granted under Rule 4(m).” Id. Here, Mathies failed to obtain a signed

and sealed summons for Martinez, who moved for dismissal under Rule 12(b)(2). Thus,

Mathies’ suit against Martinez was properly dismissed. Id.

       We will vacate the District Court’s order dismissing the suit against Silver for non-

prosecution under District of New Jersey Local Civil Rule 41.1(a) (the local rule

                                               4
counterpart to Fed. R.Civ. P. 41(b)). To determine whether the District Court abused its

discretion in dismissing a case under Rule 41(b), we evaluate its balancing of the

following factors: (1) the extent of the party’s personal responsibility; (2) the prejudice to

the other party; (3) a history of dilatoriness; (4) whether the conduct of the party or the

attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal,

which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim

or defense. Adams, 29 F.3d at 873 & n.5 (citing Poulis v. State Farm Fire and Cas. Co.,

747 F.2d 863, 868 (3d Cir. 1984)). Here, the District Court did not weigh any of these

factors before dismissing the suit against Silver. Indeed, it is not clear whether the

District Court even considered the response Mathies filed in opposition to the Notice of

Call for Dismissal given that the District Court stated in its order that no objection had

been entered. Accordingly, we will vacate the District Court’s order entered on April 30,

2007.

        In sum, we will affirm the District Court’s order entered on March 5, 2007, but

will vacate the District Court’s order entered on April 30, 2007, and remand for

proceedings consistent with this opinion.2




  2
     In his appeal, Mathies contends that the District Court failed to respond to a request
for appointment of counsel, but we have found no such request in the record.

                                              5
