Thibeaux v. Tobias ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-31037
Summary Calendar
RAYFIELD J. THIBEAUX,
Plaintiff-Appellant,
versus
TABITHA CASIMER TOBIAS; SARAH HOLMES,
Defendants-Appellees.
Appeal from the United States District Court
For the Western District of Louisiana
02-CV-443
February 13, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Rayfield J. Thibeaux, a non-prisoner proceeding pro se
and in forma pauperis, filed this civil action on March 7, 2002,
purportedly under 42 U.S.C. § 1983 and § 1985,1 against Tabitha
*
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should not be published and is not precedent except under the limited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.
1
Because the defendants are federal employees, this is actually a Bivens
action. See Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 U.S. 388 (1971).
Casimer Tobias and Sarah Holmes, Deputy Clerks of this court,
alleging that they had deprived him of his right to access to the
courts based on their actions in handling his appeals in No. 01-
21257 and No. 01-20450. The district court granted the defendants’
motion to dismiss, determining that Thibeaux had failed to state a
claim upon which relief might be granted.
Thibeaux argues that the district court judge
unconstitutionally and with bias dismissed his civil rights action
without proper grounds, and that the magistrate judge was also
biased and prejudiced. He contends that the district court should
have received proposed findings and a recommendation from the
magistrate judge before dismissing his suit. He argues that the
district court erred in ruling that it lacked personal jurisdiction
to hear the suit. He contends that his 14th amendment right to due
process was violated, and that the defendants conspired to deny
and/or hinder his access to the court. The appellees renew their
argument that the district court should have dismissed Thibeaux’s
complaint for lack of proper service of process pursuant to FED. R.
CIV. P. 4(i).
This court affirms the district court’s dismissal on the
ground that Thibeaux failed to effect service of process as
required by FED. R. CIV. P. 4(i). The record shows an insufficient
effort by Thibeaux to comply with the mandate of FED. R. CIV. P.
4(i) in properly serving the United States. Although he attempted
to serve the defendants/employees, and he followed the instructions
2
of the magistrate judge in serving them, he did not serve the civil
process clerk of the United States Attorney, or the Attorney
General of the United States, nor did he attempt such service after
the defendants filed their motion to dismiss which placed Thibeaux
on notice of the defects in service of process.2 He did not seek
an extension of time to effect proper service pursuant to FED. R.
CIV. P. 4(m).
Special consideration does not exist for pro se litigants who
fail to comply with the service requirements of Rule 4.3 Federal
district courts may only issue service of process as authorized by
federal statute or rule.4 The magistrate judge was without
authority to alter the method of service required by FED. R. CIV. P.
4(i).
AFFIRMED.
2
See FED. R. CIV. P. 4(i)(1)(A), (B), (i)(2)(A).
3
See Systems Signs Supplies v. United States Dep't of Justice, 903 F.2d
1011, 1013 (5th Cir. 1990); Kersh v. Derozier, 851 F.2d 1509, 1512 (5th Cir.
1988) (holding that pro se status does not exempt a litigant from effecting
service).
4
See Point Landing, Inc. v. Omni Capital International, Ltd., 795 F.2d
415, 424 (5th Cir. 1986).
3