Jacqueline R. Laurent v. John E. Potter , 405 F. App'x 453 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-10262 ELEVENTH CIRCUIT
Non-Argument Calendar DECEMBER 20, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:08-cv-03030-WBH
JACQUELINE R. LAURENT,
lllllllllllllll llllllPlaintiff-Appellant,
versus
JOHN E. POTTER,
Postmaster General, United States Postal Service,
lllllllllllllllllDefendant-Appellee,
KEVIN CULLEN, et al.,
llllllllllllllllllll lDefendants.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(December 20, 2010)
Before BLACK, BARKETT and MARCUS, Circuit Judges.
PER CURIAM:
Jacqueline R. Laurent, proceeding pro se, appeals the district court’s
dismissal without prejudice of her employment discrimination suit against John E.
Potter, the Postmaster General of the United States Postal Service (USPS) for
failure to perfect service on him in accordance with Fed. R. Civ. P. 4(i) and (m).
Laurent also appeals the district court’s dismissal with prejudice of individual
USPS employees Kevin Cullen and Kathy Brantley as improper defendants. After
review, we affirm.
I.
Laurent first asserts the district court erred in dismissing her complaint
against Potter for failing to comply with Fed. R. Civ. P. 4 because she committed a
technical error, which was excused by the defendants’ initial acknowledgment that
they were properly served.1
Federal Rule of Civil Procedure 4(m) allows a court to sua sponte dismiss
an action without prejudice, or order that service be made at a specific time, if a
defendant is not served within 120 days after the complaint is filed. Fed. R. Civ.
1
We review for abuse of discretion the district court’s dismissal without prejudice of a
plaintiff’s complaint for failure to properly serve a defendant under Fed. R. Civ. P. 4(m).
Lepone-Dempsey v. Carroll Cnty. Comm’rs, 476 F.3d 1277, 1280 (11th Cir. 2007).
2
P. 4(m). Service of the United States, in relevant part, requires the following:
(1) delivering a copy of the summons and complaint to the U.S. Attorney for the
district where the action originated, or to an AUSA whom the U.S. Attorney
designated in writing; and (2) mailing by registered or certified mail a copy of the
summons and complaint to the Attorney General in Washington, D.C. Id. 4(i)(1).
Service of an official requires sending a copy of the summons and the complaint
by registered or certified mail to the official. Id. 4(i)(2). “A defendant’s actual
notice is not sufficient to cure defectively executed service.” Albra v. Advan, Inc.,
490 F.3d 826, 829 (11th Cir. 2007).
The district court did not abuse its discretion in dismissing Laurent’s Title
VII complaint pursuant to Fed. R. Civ. P. 4(i) and (m). The record shows Laurent
repeatedly failed to effectuate service on Potter, in spite of receiving detailed
instructions regarding proper service from the court and having at least two
opportunities to properly serve him. Moreover, the fact that Potter may have had
actual notice of the pending suit does not excuse Laurent’s defectively executed
service. See Albra, 490 F.3d at 829.
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II.
Laurent next contends the district court erred in dismissing Cullen and
Brantley from her complaint because their alleged conduct was the basis for filing
an employment discrimination lawsuit against USPS.2
Title VII provides that the “head of the department, agency, or unit” that
allegedly discriminated against the plaintiff “shall be the defendant” in any civil
action by a federal employee claiming discrimination. 42 U.S.C. § 2000e-16(c); see
Newbold v. U.S. Postal Serv., 614 F.2d 46, 47 (5th Cir. 1980) (holding that an
individual employee was not a proper defendant in a Title VII suit against the USPS).
The district court did not commit plain error in dismissing Cullen and
Brantley from Laurent’s Title VII complaint because Potter, the head of the
agency, was the only proper defendant. Accordingly, we affirm the district court’s
dismissal without prejudice of Laurent’s complaint, and the court’s dismissal with
prejudice of Cullen and Brantley as improper defendants.
AFFIRMED.
2
We review dismissals under Fed. R. Civ. P. 12(b) de novo. Clark v. Riley, 595 F.3d
1258, 1264 (11th Cir. 2010) (addressing Rule 12(b)(6) dismissals); Sinaltrainal v. Coca-Cola
Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (addressing Rule 12(b)(1) dismissals). We review for
plain error, however, when a party fails to object to a magistrate’s report that is subsequently
adopted by the district court, if the report notifies the parties of the consequences of failing to
object. Resolution Trust Corp. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
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