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


7-11-2008

Himmelreich v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4737




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"Himmelreich v. USA" (2008). 2008 Decisions. Paper 851.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/851


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DLD-243                                             NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                   No. 07-4737
                                   ___________

                          WALTER J. HIMMELREICH,

                                                        Appellant

                                         v.

 UNITED STATES OF AMERICA; COMMONWEALTH OF PENNSYLVANIA; US
    DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA, US
MARSHALS SERVICE; GEORGE W. HILL CORRECTIONAL FACILITY; RONALD
NARDOLILLO, Warden, George W. Correctional Facility; ANDREW SMYSER, United
States Magistrate Judge; COMMONWEALTH OF PENNSYLVANIA, OFFICE OF THE
  ATTORNEY GENERAL; DELAWARE COUNTY PENNSYLVANIA OFFICE OF
   THE DISTRICT ATTORNEY; GEORGE W HILL CORRECTIONAL FACILITY
    RECORDS CLERKS; CARISSA TILLOTSON, JAMES CLANCY, US Attorney
                      ____________________________________

                  On Appeal from the United States District Court
                     for the Eastern District of Pennsylvania
                           (D.C. Civil No. 05-cv-06158)
                   District Judge: Honorable Paul S. Diamond
                   ____________________________________

       Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
       or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                  June 26, 2008

          Before: BARRY, CHAGARES and NYGAARD, Circuit Judges

                           (Opinion filed: July 11, 2008)
                                         _________

                                          OPINION
                                         _________

PER CURIAM

         Walter J. Himmelreich appeals from an order of the United States District Court

for the Eastern District of Pennsylvania, dismissing his pro se civil rights complaint for

failure to effect service pursuant to Federal Rule of Civil Procedure 4(m). For the

following reasons, we will summarily vacate and remand the matter for further

proceedings.

         Himmelreich commenced his civil rights action by submitting a complaint and an

application to proceed in forma pauperis (“IFP”) in November 2005.1 Although

Himmelreich filed two change of address notifications in April 2006, indicating that he

had been transferred to the Perry County Prison, the District Court failed to update its

records. As a result, Himmelreich did not receive notice in September 2006, when the

District Court granted his application to proceed IFP, filed his complaint, directed the

Clerk to issue a summons, and instructed the U.S. Marshals Service to serve the summons

and complaint upon the named defendants.2 Likewise, Himmelreich did not receive the


   1
    Although the complaint was not entered on the docket until the District Court
completed its IFP review in September 2006, a copy of the complaint was sent to a
defendant in December 2005, along with an order directing a response to Himmelreich’s
motion for a temporary restraining order.
   2
       Indeed, the copy of the order that was sent to Himmelreich was returned to the
                                                                              (continued...)

                                              2
return of service forms (USM-285) that were sent to him in October 2006, November

2006, and January 2007.3 It was not until February 2007 that the District Court ordered

the Clerk’s Office to update the docket to reflect Himmelreich’s “new” address at FCI

Elkton in Lisbon, Ohio.

       By order entered July 6, 2007, the District Court ordered Himmelreich to make

proof of service no later than August 6, 2007. In response, Himmelreich expressed his

belief that service already should have been accomplished but, “erring on the side of

caution,” asked for additional USM-285 forms. By order entered July 30, 2007, the

District Court ordered the Clerk’s Office to furnish the forms and warned Himmelreich

that the action would be dismissed if he did not make proof of service by September 25,

2007. When he failed to do so, the District Court dismissed the action for failure to serve

the defendants within 120 days as required under Rule 4(m). Himmelreich filed a timely

motion for reconsideration. He explained that he had prepared and mailed to the Clerk

“handwritten return of service forms” and official USM-285 forms on August 1 and 2,

2007, respectively. By order entered December 7, 2007, the District Court denied the

motion for reconsideration, noting that “another extension of time to file proof of service


   2
    (...continued)
District Court with the notations, “unable to forward” and “not at this address.”
   3
     In a letter dated January 5, 2007, Himmelreich complained to the District Court that
he had not received the forms. The letter was attached to a motion to voluntarily dismiss
certain defendants. The District Court granted the motion to dismiss by order entered
January 24, 2007, but the copy mailed to Himmelreich again was returned as “refused,
unable to forward.”

                                             3
is not appropriate.” Himmelreich appealed.

       We have jurisdiction under 28 U.S.C. § 1291.4 Rule 4(m) provides that the

District Court shall dismiss the complaint after notice to the plaintiff if service of the

complaint is not made upon a defendant within 120 days after the filing. See Fed. R. Civ.

P. 4(m). A District Court must extend the time for service, however, where a plaintiff

demonstrates good cause for the failure to timely serve the defendant. See McCurdy v.

Am. Bd. of Plastic Surgery, 157 F.3d 191, 196 (3d Cir. 1998). Even if a plaintiff fails to

show good cause, the District Court must still consider whether any additional factors

warrant a discretionary extension of time. See Petrucelli v. Bohringer & Ratzinger,

GMHB, 46 F.3d 1298, 1307-08 (3d Cir. 1995). We review a dismissal pursuant to Rule

4(m) for an abuse of discretion. See Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 568

(3d Cir. 1996).

       After careful review of the proceedings in this case, we conclude that several

factors warranted further extension of the time for service. The “primary focus is on the

plaintiff’s reasons for not complying with the time limit in the first place.” MCI




   4
     Although Rule 4(m) directs that the dismissal shall be without prejudice, we are
satisfied that appellate jurisdiction exists because the statute of limitations on
Himmelreich’s claims has now run. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d
Cir.1993) (holding that Pennsylvania’s two-year statute of limitations applies to claims
for violations of constitutional rights pursuant to 42 U.S.C. § 1983); Ahmed v.
Dragovich, 297 F.3d 201, 207 (3d Cir. 2002) (holding that an order dismissing a claim
without prejudice is a final appealable order if the statute of limitations for that claim has
expired).

                                               4
Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). Here, the

District Court’s failure to record two change of address notifications, even after orders

mailed to Himmelreich’s original address were returned as undeliverable, prevented him

from submitting the forms necessary to permit service by the Marshals. See Lindsey v.

U.S. R.R. Ret. Bd., 101 F.3d 444, 447 (5th Cir. 1996) (noting “view among our sister

circuits that good cause is shown when in forma pauperis plaintiffs’ failure to properly

serve a defendant is attributable to government personnel who have improperly performed

their duties.”). Despite this obstacle, Himmelreich acted diligently in trying to effect

service. See Bachenski v. Malnati, 11 F.3d 1371, 1376-77 (7th Cir. 1993) (holding that a

plaintiff must show reasonable diligence before good cause can be found). He promptly

informed the District Court of his address changes, he asked the District Court for USM-

285 forms in January and July 2007, and he attempted to comply with the District Court’s

July 6, 2007 order by completing and submitting official and handwritten return of

service forms. Furthermore, Himmelreich, who is proceeding pro se and IFP, reasonably

believed that service had been effected because the defendants’ attorneys had entered

appearances. See Zermeno v. McDonnell Douglas Corp., 246 F. Supp. 2d 646, 667 (S.D.

Tex. 2003) (finding good cause where, inter alia, it was not unreasonable for plaintiffs to

believe that service had been properly effected). In this connection, the defendants had

actual notice of the complaint; it was attached to a December 2005 order directing a

response to Himmelreich’s motion for a TRO. See Coleman v. Milwaukee Bd. of Sch.



                                              5
Dirs., 290 F.3d 932, 934 (7th Cir. 2002) (noting that late service generally allowed where

defendant has actual notice of suit, even if not formally served). Finally, as noted above,

the statute of limitations would bar refiling of this case. See Boley v. Kaymark, 123 F.3d

756, 759 (3d Cir. 1997) (holding that the “running of the statute of limitations is a factor

supporting the discretionary granting of an extension of time to make service under Rule

4(m)”).

       Given these circumstances, the District Court’s order dismissing the case for

failure to effect timely service is vacated and the case is remanded for further proceedings

consistent with this opinion.




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