The opinion of the court was delivered by: Judge Conner
Plaintiff commenced this action on December 27, 2010, naming as defendants the Federal Bureau of Prisons ("BOP"), T. R. Sniezek ("Sniezek"), Ellen Falzini ("Falzini"), Kenton Hubble (Hubble"), David N. Steffan ("Steffan"), Marye Wambach ("Wambach"), Joseph Zagame ("Zagame"), Kevin Vincenzes ("Vincenzes"). (Doc. 1.) Presently pending is a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) filed on behalf of the United States.*fn1 For the reasons set forth below, the BOP's motion will be denied without prejudice and plaintiff's counsel will be afforded until September 4, 2012, to amend his server's affidavit to demonstrate proof of service on the BOP. The motion will be granted with respect to the individual defendants.
I. Procedural History Regarding Service of Process
Plaintiff's complaint was filed on December 27, 2010. (Doc. 1.) On May 10, 2011, the Court issued an Order notifying plaintiff and his counsel that the 120-day period for service had expired and that failure to effect service by May 27, 2011, would result in dismissal pursuant to Federal Rule of Civil Procedure 4(m). (Doc. 9.) On May 11, 2011, plaintiff's counsel advised the Court via letter that because plaintiff was proceeding in forma pauperis, he expected service to be completed by the United States Marshal's Service. (Doc. 10.) On May 12, 2011, the Court issued an Order directing the Clerk of Court to prepare and forward summonses to plaintiff's counsel for service on all defendants and directing counsel to effect service forthwith. (Doc. 11.)
On June 6, 2011, plaintiff's counsel filed summonses returned executed by his process server indicating summonses for all defendants were given to David Paul at the Federal Correctional Institution at Schuylkill ("FCI-Schuylkill") on June 3, 2011. (Docs. 12-19.) According to plaintiff's counsel, the process server was only able to leave the service packets at the front gate of the prison. (Doc. 22, at 3.) However, defendants Sniezek, Falzini, and Hubble were no longer employed by the BOP on that date, and defendant Wambach was, and still is, on an extended medical leave. (Doc. 21, at 6.)
Thereafter, plaintiff's counsel requested new summonses be issued. (Doc. 22, at 3.) According to the docket sheet, summonses were reissued on June 23, 2011, and July 25, 2011.*fn2 Plaintiff's counsel represents that he then delivered the summonses to a "second experienced and qualified process server -- American Expediting of Allentown." (Doc.22, at 3.) "American Expediting attempt [sic] to complete service but was advised on such attempt by the Bureau of Prisons that process could only be served by an individual who had taken a prescribed but unidentified course from the Bureau of Prisons, or, by a state sheriff." (Id. at 3-4.) Counsel for the government indicates that "[u]pon inquiry, BOP legal counsel confirmed that there is no such requirement and neither the legal department at the institution nor the BOP's Northeast Regional Office would ever give such information to anyone." (Doc. 23, at 9.)
On June 29, 2011, plaintiff's counsel represents that he sent copies of the complaint and summonses by both regular and certified mail to the Civil Process Clerk of the United States Attorney for the Middle District of Pennsylvania, the Attorney General of the United States, the Central Office of the Bureau of Prisons, and the Regional Director of the Northeast Region of the Bureau of Prisons. (Doc. 22, at 3, 7-10.
On September 1, 2011, the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5) was filed on behalf of the United States.
I. Federal Rule of Civil Procedure 12(b)(5) Motion
Federal Rule of Civil Procedure 12(b)(5) permits dismissal of a complaint when a plaintiff fails to effect service of process in a fashion compliant with Rule 4. Since "[t]he failure of a plaintiff to obtain valid process from the court to provide it with personal jurisdiction over the defendant in a civil case is fatal to the plaintiff's case," Ayres v. Jacobs & Crumplar, P.A., 99 F.3d 565, 569 (3d Cir. 1996), it must first be determined whether the complaint was properly served.
Pursuant to Rule 4, a plaintiff must arrange for personal service of a summons and complaint upon each defendant unless the defendant waives service. See FED. R. CIV. P. 12(b)(5); 4(c)(1)(2); 4(d); 4(e)*fn3 . A plaintiff suing the United States, its agencies, corporations, officers or employees, must serve a copy of the summons and complaint upon the United States Attorney for the district where the action is brought by delivering the summons and complaint directly to the United States Attorney, to a properly designated employee of the United States Attorney, or by sending the summons and complaint via registered or certified mail to the civil process clerk at the United States Attorney's Office. FED. R. CIV. P. 4(i)(1)(A)(i). In addition, the plaintiff must also serve the Attorney General of the United States by registered or certified mail. FED. R. CIV. P. 4(i)(1)(B). If the plaintiff is also suing individual officers or employees of the United States, whether they are sued individually or in their official capacities, the plaintiff "must serve the United States and also serve the officer or employee under Rule 4(e), (f), or (g)." FED. R. CIV. P. 4(i)(4). The local rules of this Court require that "immediate service of process should be effected and an affidavit of such service shall be filed within fourteen (14) days thereafter." M.D. Pa. L.R. 4.1.
Plaintiff's counsel has failed to file proof of service with respect to the BOP. (Doc. 39, at 7.) Rule 4(l) provides that "[u]nless service is waived, proof of service must be made to the court. Except for service by a United States marshal or deputy marshal, proof must be by the server's affidavit." FED. R. CIV. P. 4(l)(1). The rule further provides that "[f]ailure to prove service does not affect the validity of service. The court may permit proof of service to be amended." FED. R. CIV. P. 4(l)(2).
Attached to plaintiff's opposition brief are letters dated June 29, 2011, indicating that plaintiff served the U.S. Attorney for the Middle District of Pennsylvania and the Attorney General via certified mail. (Doc. 22, at 7-10.) Yet, he fails to demonstrate proof of service by filing a server's affidavit as required by the federal rules. Despite this deficiency, because Rule 4(l) is liberal with respect to allowing proof of service to ...