                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                             F I L E D
              IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT                   July 21, 2005
                      _____________________
                                                        Charles R. Fulbruge III
                              No. 04-11327                      Clerk
                            Summary Calendar
                         _____________________

                          HAROLD B. CORNISH,

                      Plaintiff - Appellant,

                                versus

TEXAS BOARD OF CRIMINAL JUSTICE OFFICE OF THE INSPECTOR GENERAL,
                TEXAS BOARD OF CRIMINAL JUSTICE, &
              TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                     Defendants - Appellees.
_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
               District Court Cause No. 04-CV-579-R
_________________________________________________________________

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PRADO, Circuit Judge:*

     Appellant Harold B. Cornish challenges the dismissal of his

complaint in which he alleged that he was unlawfully

discriminated against in violation of Title VII.    In the

complaint, Cornish maintained that the Texas Department of

Criminal Justice (TDCJ) did not hire him for an Internal Affairs

Trainee position because he is black.    Cornish named three

agencies as defendants: the Texas Board of Criminal Justice

     *
      Pursuant to 5TH CIRCUIT RULE 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIRCUIT
RULE 47.5.4.

                                   1
Office of the Inspector General, the Texas Board of Criminal

Justice, and TDCJ.

     TDCJ responded to Cornish’s complaint by filing a motion to

dismiss.   In the motion, TDCJ argued that Cornish cannot sue the

Texas Board of Criminal Justice Office of the Inspector General

because that agency does not exist as a separate entity.    TDCJ

also stated that Cornish had failed to exhaust his administrative

remedies as to the Texas Board of Criminal Justice Office of the

Inspector General and the Texas Board of Criminal Justice because

he had not named them in his charge of discrimination with the

Equal Opportunity and Employment Commission (EEOC).    Finally,

TDCJ complained about the insufficiency of service of process.

TDCJ argued that service was insufficient because a summons was

not addressed to, issued to, or served on either the Texas Board

of Criminal Justice or TDCJ.    The district court granted the

motion and dismissed the complaint.

     Cornish responded by filing a pleading that included a

notice of appeal and asked the district court to reconsider the

dismissal of his complaint.    Cornish argued that his complaint

should not have been dismissed because the Marshal failed to

serve the Texas Board of Criminal Justice and TDCJ.    Cornish

attached a summons issued to each defendant and the Marshal’s

notice of service reflecting service on the Texas Board of

Criminal Justice and the Texas Board of Criminal Justice Office

of the Inspector General.   The district court denied the motion

                                  2
for reconsideration.

     Cornish’s notice of appeal was timely, but the motion for

reconsideration was untimely.1   Because Cornish did not file a

notice of appeal to challenge the denial of his motion for

reconsideration, or amend his notice of appeal to include the

denial of his motion for reconsideration, this court may only

review the order dismissing the complaint.2

     The district court provided no reasons for dismissing

Cornish’s complaint.   Based on the arguments in TDCJ’s motion,

the district court must have determined that (1) Cornish’s claims

against the Texas Board of Criminal Justice Office of the

Inspector General were precluded because no such separate entity

existed and Cornish did not exhaust his administrative remedies,

(2) Cornish’s claims against the Texas Board of Criminal Justice

were barred by Cornish’s failure to exhaust his administrative

remedies, and (3) Cornish failed to serve TDCJ with a copy of the

summons and complaint.3   Cornish challenges each of these

     1
      See FED. R. CIV. P. 59(e) (requiring a motion to alter or
amend the judgment to be filed no later than 10 days after the
entry of the judgment); Lavespere v. Niagara Mach. & Tool Works,
910 F.2d 167, 173 (5th Cir. 1990) (stating that, under Rule 59, a
motion to reconsider should be treated as a motion to alter or
amend the judgment).
     2
      See FED. R. APP. P. 4(a)(4) (specifying the effect of a
post-judgment motion on a notice of appeal).
     3
      See Lindsey v. U.S. R.R. Ret. Bd., 101 F.3d 444, 446 (5th
Cir. 1996) (assuming the basis for the district court’s order
refusing to direct the clerk to serve the defendant where the
court provided no reason in its order).

                                 3
determinations.

     Claims against the Texas Board of Criminal Justice Office of

the Inspector General.    TDCJ maintains that the district court

properly dismissed claims against the Texas Board of Criminal

Justice Office of the Inspector General because no such state

entity exists.    A Texas defendant may only be sued if it has an

actual or legal existence.4    The Texas Government Code

establishes the Texas Board of Criminal Justice, but it does not

establish the Office of Inspector General as a separate entity.5

As a result, the district court did not err by dismissing

Cornish’s claims against the Texas Board of Criminal Justice

Office of Inspector General.

     Claims against the Texas Board of Criminal Justice.       TDCJ

contends that the district court properly dismissed Cornish’s

claims against the Texas Board of Criminal Justice because

Cornish failed to exhaust his administrative remedies.     A

plaintiff must exhaust his administrative remedies before he may

pursue a Title VII claim.6    The first step in that process is to




     4
      Bailey v. Vanscot Concrete Co., 894 S.W.2d 757, 759 (Tex.
1995).
     5
      See TEX. GOV’T CODE §§ 492.001-.014 (Vernon 2004) (providing
for the Texas Board of Criminal Justice).
     6
      See Randel v. U.S. Dep’t of Navy, 157 F.3d 392, 395 (5th
1998) (explaining the prerequisites for a Title VII lawsuit).

                                  4
file a charge of discrimination with the EEOC.7   Ordinarily, a

plaintiff may not sue a defendant who was not named as a

respondent in the EEOC charge.8   Here, Cornish named only TDCJ in

his EEOC charge.   Thus, Cornish failed to exhaust his

administrative remedies as to the Texas Board of Criminal

Justice, and the district court did not err by dismissing

Cornish’s claims against that agency.

     Claims against TDCJ.   TDCJ maintains that the district court

properly dismissed Cornish’s claims against it because it was not

Cornish’s prospective employer.   TDCJ, however, did not raise

this argument in the district court.    Ordinarily, this court does

not consider an argument raised for the first time on appeal

unless it involves a purely legal issue and the failure to

consider the argument would result in manifest injustice.9   The

question whether TDCJ is a prospective employer is not a purely

legal issue10 and the failure to consider this question will not


     7
      See Barnes v. Levitt, 118 F.3d 404, 408 (5th Cir. 1997)
(“The filing of an administrative complaint is a jurisdictional
prerequisite to a Title VII action.”).
     8
      See 42 U.S.C. § 2000e-5(f)(1) (permitting a plaintiff to
bring a civil action against the respondent named in the charge).
     9
      Diaz v. Collins, 114 F.3d 69, 71 n.5 (5th Cir. 1997);
Forbush v. J.C. Penney Co., 98 F.3d 817, 822 (5th Cir. 1996);
Blanks v. Murco Drilling Corp., 766 F.2d 891, 897 (5th Cir.
1985).
     10
      See Nowlin v. Resolution Trust Corp., 33 F.3d 498, 505
(5th Cir. 1994) (explaining that the right of control is a
crucial factor in determining whether a defendant is a Title VII

                                  5
result in a manifest injustice.       Thus, the court will consider

only whether the district court erred by dismissing Cornish’s

claims against TDCJ for insufficient service of process.

     The court reviews “a dismissal for failure to effect timely

service of process for an abuse of discretion.”11       Ordinarily,

the plaintiff must serve each defendant with a copy of the

summons and complaint.12      If the plaintiff fails to serve a

defendant within 120 days, the court must dismiss the action

without prejudice as to that defendant or direct that service be

effected within a specified time.13       Despite this general rule,

special rules “govern the procedure for service of process in

cases involving in forma pauperis [(IFP)] plaintiffs like”

Cornish.14     In those cases, section 1915 of title 28 provides

that the “officers of the court shall issue and serve all

process.”15     In addition, Rule 4 requires the district court to

appoint a person to serve process in an IFP case.       Once the IFP

plaintiff has taken reasonable steps to identify the


plaintiff’s employer); Mares v. Marsh, 777 F.2d 1066, 1067 (5th
Cir. 1985) (explaining how determinations about employer status
should be made and exploring the facts of the particular
situation).
     11
          Lindsey, 101 F.3d at 445.
     12
          FED. R. CIV. P. 4(c)(1).
     13
          FED. R. CIV. P. 4(m).
     14
          Lindsey, 101 F.3d at 446.
     15
          28 U.S.C. § 1915(d).

                                      6
defendant(s), together Rule 4 and section 1915 require the court

“to issue plaintiff's process to a United States Marshal who must

in turn effectuate service upon the defendants.”16

     Here, the record indicates that the magistrate judge gave

Cornish permission to proceed IFP on March 29, 2004.     In its

order, the magistrate judge directed the district clerk to “issue

summons and send them, together with copies of the complaint . .

. to the United States Marshal for service.”     The order also

ordered the Marshal to “serve the defendants.”     The record,

however, does not reflect that the Marshal served TDCJ.

     This court has determined that an IFP plaintiff is entitled

to rely on service by the Marshal and that the plaintiff will not

be penalized for the Marshal’s failure to properly effect service

where the plaintiff is not at fault.17     Here, the record shows

that Cornish identified the defendants and obtained a summons for


     16
          Lindsey, 101 F.3d at 446 (internal quotations omitted).
     17
      Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987); see
Byrd v. Stone, 94 F.3d 217, 220 (6th Cir. 1996) (determining that
the failure of the clerk and the Marshal to accomplish their
respective duties constituted good cause for reinstating the IFP
plaintiff’s lawsuit); Dumaguin v. Sec’y of Health & Human Servs.,
28 F.3d 1218, 1221 (D.C. Cir. 1994) (finding that the Marshal’s
failure to effectuate service of process was good cause under
Rule 4); Puett v. Blandford, 912 F.2d 270, 276 (9th Cir. 1990)
(explaining that the IFP plaintiff will not be penalized for the
Marshal’s failure to effect service as required by section 1915);
Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990)
(holding that good cause exists for reviving an IFP inmate’s
complaint when the district court instructs the Marshal to serve
the defendant and the prisoner provides the information needed to
identify the defendant).

                                   7
each defendant from the clerk.    The Marshal, however, did not

serve TDCJ with a summons.

     The Marshal failed to perform his assigned task.    Where the

Marshal fails to serve a properly addressed summons to a

defendant, the district court abuses its discretion by dismissing

an IFP plaintiff’s complaint.    Because that is what happened

here, the district court erred by dismissing Cornish’s claims

against TDCJ.   As a result, the court REVERSES and REMANDS the

order of dismissal as to TDCJ, and AFFIRMS the order in all other

respects.   Back in the district court, Cornish can properly raise

his argument about why TDCJ is a proper defendant in this case.

REVERSED & REMANDED IN PART & AFFIRMED IN PART.




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