Richard Tagliamonte v. Walley Wang , 496 F. App'x 208 ( 2012 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1130
___________
RICHARD TAGLIAMONTE,
Appellant
v.
WALLEY WANG, United States Postal Inspector, individually personally and in his
official capacity; SCOTT MATHEWS, United States Postal Inspector individually
personally and in his official capacity; CHRISTOPHER J. CHRISTIE, United States
Attorney individually personally and in his official capacity; RALPH J. MARRA, JR.,
Deputy Assistant United States Attorney individually personally and in his official
capacity; ERIC H. JASO, Assistant United States Attorney individually personally and
in his official capacity; UNITE STATES ATTORNEY’S OFFICE, DISTRICT OF NEW
JERSEY; JEFF WELZ, Weehawken NJ Public Safety Director individually personally
and in his official capacity; JOHN AND JANE DOE 1-10, Employees, Officers,
Detectives, Agents, Weehawken, Hudson County, New Jersey; LORENZO PENA,
Superintendent One hundred Sixty-nine Twentieth street, Union City, Hudson County,
New Jersey individually personally and in their official capacity; MARTHA
BETANCOURT, Superintendent One hundred Sixty-nine Twentieth street, Union City,
Hudson County, New Jersey individually personally and in their official capacity; JOHN
AND JANE DOE 1-10;OTHERS NAMED UNKNOWN;OTHER KNOWN
EMPLOYEES AND UNKNOWN NAMED CONFIDENTIAL INFORMANTS OF ALL
LAW ENFORCEMENT AGENCIES AND OR ORGANIZATIONS NAMED
HEREIN;MAGISTRATE JUDGE MADELINE COX ARLEO, United States District
Court, District of New Jersey; OTHERS NAMED UNKNOWN;OTHER UNKNOWN
EMPLOYEES OF THE UNITED STATES OF AMERICA; UNITED STATES OF
AMERICA
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2:05-cv-04614)
District Judge: Honorable Dennis M. Cavanaugh
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 22, 2012
Before: CHAGARES, VANASKIE AND BARRY, Circuit Judges
(Opinion filed: September 17, 2012)
_________
OPINION
_________
PER CURIAM
Richard Tagliamonte, a prisoner of the United States proceeding pro se and in
forma pauperis, appeals District Court orders 1) dismissing his claims against a set of
defendants and 2) dismissing the remainder of the lawsuit under N.J. L. Civ. R. 41.1,
―Dismissal of Inactive Cases.‖ We will affirm.
In 2004, Tagliamonte was indicted in the United States District Court for the
District of New Jersey on various financial fraud and counterfeiting offenses. See D.N.J.
Crim. No. 2:04-cr-00701. During the pretrial phase, he attempted to suppress evidence
obtained in a search of his apartment, arguing that it was impermissibly tainted by
violations of the Fourth Amendment that preceded the eventual acquisition of a valid
search warrant; ultimately unsuccessful, he was eventually convicted of all eight counts
of the indictment. We affirmed the conviction and sentence, observing that any Fourth
Amendment violations that might have occurred were, for various reasons, harmless, and
that suppression was properly denied. See United States v. Tagliamonte, 340 F. App’x
73, 78–79 (3d Cir. 2009), cert. denied, 131 S. Ct. 329 (2010).
In 2005, Tagliamonte commenced this civil suit (based on Bivens v. Six Unknown
2
Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and 42 U.S.C.
§ 1983) as a pretrial detainee, attacking the allegedly unconstitutional conduct that was
then at issue in his criminal case. The suit was initially dismissed by the District Court as
barred by Heck v. Humphrey, 512 U.S. 477 (1994), but we did not agree that
Tagliamonte’s success on his civil claims would necessarily undermine his criminal
prosecution, see id. at 486–87, and remanded to the District Court for further
proceedings. See Tagliamonte v. Wang, 340 F. App’x. 839, 841 (3d Cir. 2009).
Tagliamonte thereafter filed an amended complaint,1 adding new allegations and
defendants (the ―Weehawken defendants‖). Around this time, Tagliamonte asked for
service to be effectuated upon the named defendants, and an order was entered requesting
the Marshals to serve process. See Order, ECF No. 20.
On July 1, 2010, the Weehawken defendants filed a motion to dismiss, arguing
that ―the actions alleged, even if true, did not violate any constitutional right.‖ They also
raised a statute of limitations defense.
Meanwhile, Tagliamonte wrote a letter to the Court complaining about service
issues. He moved for default judgment. On September 1, 2010, AUSA Colette
Buchanan appeared via letter ―for the limited purpose of opposing the application for a
default judgment.‖ Apparently, copies of the summonses addressed to Wang and
1
The District Court never explicitly granted leave to amend, but appears to have
proceeded under the assumption that the complaint was indeed properly amended. See
Tagliamonte v. Wang, No. 05-cv-4614, 2011 WL 601291, at *1 n.1 (D.N.J. Feb. 17,
2011)
3
Mathews were ―received at the United States Postal Inspection Service,‖ but Buchanan
argued that this did not amount to proper service under Fed. R. Civ. P. 4.2 ―Because
proper service . . . was not effected, no answer is due from these defendants, therefore
they are not in default.‖ AUSA Buchanan further explained that she had been authorized
to ―accept service on their behalf‖; ―[o]nly when a proper Summons and Complaint
addressed to each defendant is received by the undersigned will the time for an answer
begin to run.‖ Buchanan also disputed that proper service had been effected on
defendants Marra, Jaso, and Christie. See ECF Nos. 31, 42. In response, Tagliamonte
acknowledged that he received Buchanan’s objections, but—invoking the ―inviolate‖
nature of the Federal Rules of Civil Procedure—accused the United States Government
of being in default, and characterized the United States Marshals as being ―negligent‖ and
―inept.‖ ECF Nos. 38, 39. He did not request that the Marshals reattempt service on
Wang and Mathews and did not send a summons and complaint addressed to them to
Buchanan.
The District Court eventually concluded that the amended complaint was barred as
to the Weehawken defendants by the running of the statute of limitations, and dismissed
them from the suit. Tagliamonte v. Wang, No. 05-cv-4614, 2011 WL 601291, at *2–3
2
For example, the summons receipt attached to the District Court docket at ECF
No. 25 reflects an ―individual served‖ who is not defendant Wang. See Fed. R. Civ. P.
4(e); see also N.J. Court Rule 4:4-4(a).
4
(D.N.J. Feb. 17, 2011).3 That dismissal was the last major activity in the case. On May
9, 2011, Tagliamonte requested a copy of the docket. Then, on December 9, the Court
Clerk issued a N.J. L. Civ. R. 41.1 notice, announcing that the case had ―been pending for
more than four months without any proceeding having been taken therein, namely, the
failure to provide the court with adequate service of the complaint,‖ and would be
dismissed on the 21st, twelve days later, unless ―sufficient reason to the contrary [wa]s
shown in writing.‖ On December 22, the District Court dismissed the case without
prejudice because no response was timely filed. This appeal followed.4
The only issue before us on appeal is whether the District Court’s decision to
dismiss the suit as it did for failure to prosecute was an abuse of discretion. On this
record, we conclude that it was not.
When a plaintiff requests and is granted in forma pauperis status, as was the case
here, service of process is entrusted to the officers of the court. 28 U.S.C. § 1915(d); see
also Fed. R. Civ. P. 4(c)(3); Sellers v. United States, 902 F.2d 598, 602 (7th Cir. 1990)
3
Aside from a glancing mention, Tagliamonte does not discuss in his opening
brief the dismissal of the Weehawken defendants, and we therefore conclude that he has
waived the matter. Laborers’ Int’l Union v. Foster Wheeler Corp., 26 F.3d 375, 398 (3d
Cir. 1994); see also Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per curiam).
4
We have jurisdiction under 28 U.S.C. § 1291, reviewing a dismissal for failure to
prosecute for abuse of discretion, while acknowledging that dismissal is ―is only
appropriate in limited circumstances and doubts should be resolved in favor of reaching a
decision on the merits.‖ Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 260 n.1
(3d Cir. 2011) (citations omitted); see also Wu v. T.W. Wang, Inc., 420 F.3d 641, 643
(6th Cir. 2005).
5
(―[A]n indigent prisoner representing himself is entitled to rely on the Marshal to achieve
service of process.‖). As we have recognized, however, an indigent plaintiff is not
entirely without responsibility, as he must ―attempt to remedy any apparent service
defects‖ that he is made aware of. Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992)
(quoting Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987)), superseded by statute
on other grounds as stated in Nyhuis v. Reno, 204 F.3d 65, 71 n.7 (3d Cir. 2000). In
Rochon, the Fifth Circuit emphasized that a plaintiff, upon becoming aware of a service
defect, may not ―remain silent and do nothing to effectuate such service‖; if he fails to act
upon discovering a service defect, and his suit is thereafter dismissed, he is ―not being
penalized for the failure of the U.S. Marshals and the clerk of the court to effect service . .
. but instead because of inaction and dilatoriness on his part.‖ Rochon, 828 F.2d at 1110;
accord Puett v. Blandford, 912 F.2d 270, 274–75 (9th Cir. Nev. 1990)).
In this case, Tagliamonte was aware that service upon the various defendants was
contested, as AUSA Buchanan included him as a recipient on her letters to the Court and
he acknowledged receiving them. With regard to Wang and Mathews, moreover, AUSA
Buchanan specifically acceded to receiving process on their behalf. Despite this,
Tagliamonte did not direct the Marshals to attempt service upon Buchanan, and he
provided no meaningful response to Buchanan’s description of the state of service upon
the other federal defendants; furthermore, there is no indication in the record that
Buchanan received a proper summons and complaint on behalf of Wang and Mathews.
Once put on notice that he suit would be dismissed if process were not properly served,
6
Tagliamonte again did not respond. On this set of facts, Rochon controls, and we
therefore hold that the District Court did not abuse its discretion in dismissing the
complaint for failure to prosecute.5 As Tagliamonte raises no other issues for our
consideration, the judgment of the District Court will be affirmed. To the extent that
Tagliamonte has requested that counsel be appointed and that the case be returned to a
different District Judge if remanded, those requests are denied. Appellees’ motion to be
excused from filing a brief is granted.
5
Our holding today is narrow, reflecting that Tagliamonte took no action to
remedy an alleged service defect about which he was on notice; instead, he moved for
default judgment and otherwise castigated the Marshals for their failure to comply with
the Federal Rules. If he had challenged AUSA Buchanan’s description of the state of
service in a response to the Court’s order to show cause listing the case for dismissal, or
if he had attempted to reopen the suit after dismissal without success, our conclusion
might have been different as to the extent of his culpability. But he did not do so, and to
find an abuse of discretion in the face of total inactivity would contradict the reasoning of
Rochon that we adopted in Quinlan.
We note too that the amended complaint, on its face, appears to name several state
and federal actors as defendants who are likely immune from lawsuits attacking their
official conduct. See FDIC v. Meyer, 510 U.S. 471, 475 (1994) (sovereign immunity);
Burns v. Reed, 500 U.S. 478, 492 (1991) (absolute prosecutorial immunity); Bolin v.
Story, 225 F.3d 1234, 1239, 1242 (11th Cir. 2000) (absolute judicial immunity); see also
Proffitt v. Ridgway, 279 F.3d 503, 507–08 (7th Cir. 2002) (emphasizing that those who
render assistance to law enforcement are generally not subject to suit under 42 U.S.C. §
1983). Were we to reach the merits of this appeal, we would likely be compelled to
affirm, at least in part, on these bases for immunity, regardless of whether the suit was
otherwise properly dismissed below for failure to prosecute.
7