     Case: 08-30431     Document: 00511114749          Page: 1    Date Filed: 05/18/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 18, 2010
                                     No. 08-30431
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk



SHEDRICK BRUMFIELD
                                                   Plaintiff-Appellant

v.

SHIRLEY COODY; UNKNOWN BEOKER, Lieutenant; DAVID HONEYCUTT,
Colonel; DAVID DAIGRENPONT, Sergeant; RICHARD STALDER; LINDA
RAMSEY

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:07-CV-64


Before KING, BARKSDALE, and GARZA, Circuit Judges.
PER CURIAM:*
        Shedrick Brumfield, Louisiana prisoner # 395469, proceeding pro se and
in forma pauperis, appeals the denial of a post-judgment motion challenging the
dismissal of his claims against defendants Coody, Boeker, Honeycutt, and
Daigrenpont due to insufficient service of process. (It did not challenge the
dismissal of the other defendants.) Brumfield sought relief from the judgment



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 08-30431

on grounds of excusable neglect, alleging that the district court clerk ignored his
repeated requests for the forms necessary to obtain service. Although the motion
was captioned as being under Federal Rule of Civil Procedure 60(b) and was so
construed by the district court, it should have been construed as sounding under
Rule 59. See Mangieri v. Clifton, 29 F.3d 1012, 1015 n.5 (5th Cir. 1994) (holding
that a motion for reconsideration filed within 10 days of entry of judgment
should be construed under Rule 59 regardless of how it is captioned). (Effective
December 1, 2009, the time computation rules in the district and circuit courts
were amended so that weekends and holidays are counted, and the 10-day limit
was changed to a 28-day limit. F ED. R. C IV. P. 6(a) and 59(e); F ED. R. A PP. P.
4(a)(4)(iv) (Dec. 1, 2009). The new rules shall govern, “insofar as just and
practicable, all proceedings then pending.”      See US ORDER 09-15 and US
ORDER 09-17. We need not decide whether it is “just and practicable” to apply
the new rule to calculate the timeliness of Brumfield’s filing because under
either the former rules or the rules effective December 1, 2009, the motion
sounds under Rule 59 rather than Rule 60(b).)
      Under the prison mailbox rule, the motion is deemed to have been filed
within 10 days of the entry of the judgment of dismissal because it was signed
and submitted to prison authorities within that period.         See Thompson v.
Raspberry, 993 F.2d 513, 515 & n.3 (5th Cir. 1993). Therefore, as stated, the
motion should have been construed as a Rule 59 motion regardless of how it was
captioned. See Mangieri, 29 F.3d at 1015 n.5. Moreover, Brumfield’s timely
appeal from the denial of such Rule 59 relief is treated “as an appeal from the
adverse judgment itself”. See Lockett v. Anderson, 230 F.3d 695, 700 n.4 (5th
Cir. 2000) (internal quotations and citation omitted); see also In re Blast Energy
Servs., Inc., 593 F.3d 418, 424 n.3 (5th Cir. 2010).
      A dismissal for insufficient service of process is reviewed for abuse of
discretion. Lindsey v. United States R. R. Ret. Bd., 101 F.3d 444, 445 (5th Cir.
1996). The plaintiff is responsible for service of a summons and complaint

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within the time allowed. F ED. R. C IV. P. 4(c)(1). If service is not made upon a
defendant within 120 days after the filing of the complaint, the court, upon
motion or on its own initiative after notice to the plaintiff, must dismiss the
action without prejudice as to that defendant or direct that service be effected
within a specified time. F ED. R. C IV. P. 4(m).
      The court, however, “must extend the time for service for an appropriate
period” if the plaintiff shows good cause for the failure to serve. Id. (emphasis
added).   To establish “good cause”, a plaintiff must demonstrate at least
excusable neglect. Lindsey, 101 F.3d at 446. Lindsey held the dismissal of an
in forma pauperis complaint was an abuse of discretion where the district court
did not order service and the plaintiff was unable to obtain the necessary service
forms from the clerk of court. Id.
      The 120-day provision in Rule 4 is “not . . . an outer limit subject to
reduction, but . . . an irreducible allowance.” Henderson v. United States, 517
U.S. 654, 661 (1996). A district court has the discretion to extend the 120-day
period for service even absent a showing of good cause. Id. at 662. Service of
process is not a jurisdictional matter; “[i]nstead, the core function of service is
to supply notice of the pendency of a legal action, in a manner and at a time that
affords the defendant a fair opportunity to answer the complaint and present
defenses and objections.” Id. at 671-72 (citing Mullane v. Central Hanover Bank
& Trust Co., 339 U.S. 306, 314 (1950)).
      In this instance, the defendants received timely notice of the pendency of
the action and they were able to answer the complaint and present defenses and
objections. See Henderson, 517 U.S. at 671-72. The record on appeal contains
evidence that Brumfield mailed at least one document to the district court
during the period in which he was directed to perfect service. This mailing is not
recorded in the district court docket, lending credence to Brumfield’s assertion
that he attempted to obtain service. Although Brumfield did not proceed in
forma pauperis in district court, his situation is otherwise similar to facts found

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to constitute good cause in Lindsey. See 101 F.3d at 445-47. Moreover, although
a dismissal for failure to perfect service should be without prejudice, see F ED. R.
C IV. P. 4(m), the judgment is silent as to prejudice, which causes the judgment
to sound as a dismissal with prejudice.        See Nationwide Mut. Ins. Co. v.
Unauthorized Practice of Law Comm., 283 F.3d 650, 656 n.26 (5th Cir. 2002).
Accordingly, Brumfield demonstrated good cause for his failure to serve process,
and the district court abused its discretion in dismissing his claims.
      For the foregoing reasons, the judgment of dismissal is VACATED and this
matter is REMANDED to district court for proceedings consistent with this
opinion.
      VACATED and REMANDED.




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