Gilliam v. County of Tarrant , 94 F. App'x 230 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS April 15, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-11302
Summary Calendar
TIM B. GILLIAM,
Plaintiff-Appellant,
versus
COUNTY OF TARRANT; CITY OF FORT WORTH TEXAS,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:03-CV-639
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Tim B. Gilliam, Texas prisoner # 1175788, proceeding pro se,
appeals from the dismissal, pursuant to FED. R. CIV. P. 4(m), of his
claims against the County of Tarrant (“the County”) and the City of
Forth Worth, Texas (“the City”) for failure to effect service of
process within 120 days of filing his complaint. Gilliam argues
that the district court erred in dismissing his claims because he
served the defendants via certified mail.
Rule 4(m) provides that if service is not made within 120 days
of filing the complaint, the action is subject to dismissal without
prejudice by the district court after notice to the plaintiff,
*
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that this opinion should not be published and is not precedent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.
unless the plaintiff can show good cause for his failure to
complete service. FED. R. CIV. P. 4(m). This court reviews for
abuse of discretion a dismissal for failure to effect timely
service. Systems Signs Supplies v. United States Dep’t of Justice,
903 F.2d 1011, 1013 (5th Cir. 1990).
Our review of the record shows that Gilliam has failed to
comply with the service requirements of FED. R. CIV. P. 4(j)(2),
which governs service upon foreign, state, or local governments.
Gilliam could have satisfied the rule by “delivering” a copy of the
summons and complaint to the chief executive officers of the
defendants to his action. Rule 4(j)(2). However, the use of
certified mail is not sufficient to constitute “delivering” under
Rule 4. See Peters v. United States, 9 F.3d 344, 345 (5th Cir.
1993).
Gilliam could also have satisfied Rule 4(j)(2) by serving the
City and the County “in the manner prescribed by the law of [Texas]
for the service of summons or other like process upon any such
defendant.” Rule 4(j)(2). However, under Texas law, as a party to
the action Gilliam was not authorized to serve process. TEX. R.
CIV. P. 103. The record provides no indication that any person
authorized by Texas law to serve process was involved in Gilliam’s
purported service via certified mail. See Delta Steamships Lines,
Inc. v. Albano, 768 F.2d 728, 730 (5th Cir. 1985) (noting that the
plaintiff’s use of certified mail did not conform to Texas law
because no officer authorized to serve process under Rule 103 was
involved).
2
The judgment of the district court is AFFIRMED. Gilliam’s
motion for the appointment of counsel is DENIED.
3