                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2009

David Boniella v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1642




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                                                  NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-1642
                                      ___________

                                  DAVID BONIELLA,
                                                Appellant

                                            v.

                       COMMISSIONER SOCIAL SECURITY
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                           (D.C. Civil Action No. 07-1314)
                    Magistrate Judge: Honorable Robert C. Mitchell
                     ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                  March 13, 2009
          Before: FISHER, JORDAN and VANANTWERPEN, Circuit Judges

                            (Opinion filed: March 13, 2009 )

                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Pro se appellant David Boniella challenges the District Court’s dismissal of his

complaint under Rule 4(m) of the Federal Rules of Federal Procedure. For the reasons

below, we will vacate the District Court’s order and remand for further proceedings.
                                             I.

       Boniella filed a motion to proceed in forma pauperis in the Western District of

Pennsylvania on September 28, 2007. The District Court, on October 2, 2007, entered an

order granting the in forma pauperis motion and ordering the clerk to file Boniella’s

complaint against the Social Security Commissioner. Boniella sought the District Court’s

review of the Social Security Commissioner’s final determination disallowing his claim

for disability benefits. See 42 U.S.C. § 405(g). The case proceeded as Boniella filed

several motions and consented to the jurisdiction of the Magistrate Judge under 28 U.S.C.

§ 636. On November 8, 2007, the U.S. Attorney’s Office filed a notice of appearance,

which also stated that it had not been properly served with the complaint or summons. In

January 2008, the U.S. Attorney’s Office also consented to the Magistrate Judge’s

jurisdiction.

       On February 5, 2008, the Magistrate Judge issued an order under Federal Rule of

Civil Procedure 4(m) requiring Boniella to show cause as to why the case should not be

dismissed for failure to serve the defendant within 120 days of filing the complaint. The

District Court did not receive Boniella’s response until February 29th, by which time the

Magistrate Judge had issued an order (on February 27th) dismissing the complaint

without prejudice under Rule 4(m). Boniella timely appealed.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291 and 28 U.S.C. § 636(c). Although



                                             2
the District Court dismissed this case without prejudice, we are satisfied that appellate

jurisdiction exists because the statute of limitation on Boniella’s claim has now expired.

See 42 U.S.C. § 405(g) (stating that a complaint seeking judicial review of a decision by

the Social Security Commission must be filed within sixty days of the decision or after

notice of the decision is mailed); Bowen v. City of New York, 476 U.S. 467, 478 (1986)

(acknowledging that § 405(g) constitutes a statute of limitation). We review a dismissal

pursuant to Rule 4(m) for abuse of discretion. Ayres v. Jacobs & Crumplar, P.A., 99 F.3d

565, 568 (3d Cir. 1996).

       The District Court improperly dismissed Boniella’s suit by citing his failure to

serve process. As a litigant proceeding in forma pauperis, Boniella was not responsible

for the service of process. See 28 U.S.C. § 1915(d) (“The officers of the court shall issue

and serve all process[.]”); see also Byrd v. Stone, 94 F.3d 217, 220 (6th Cir. 1996). Once

Boniella filed his complaint, the District Court was obligated to appoint a United States

marshal to effect service. Fed. R. Civ. P. 4(c)(3).

       For this reason, we will vacate the District Court’s order dismissing Boniella’s

complaint and remand the case for further proceedings. We will deny Appellant’s

motions for presumptive disability payments and for sanctions and fines.1




       1
               Boniella also seeks our review of the Commissioner’s decision regarding
disability benefits. The question before us on appeal is whether the District Court erred in
dismissing Boniella’s complaint for failure to effect service, and we do not reach the
merits of the complaint.

                                              3
