Seventh Circuit Channels the Fugitive in Chastising Marshals Service

11 August 2015 Wisconsin Appellate Law Blog

Ordinarily, a civil plaintiff must make his own arrangements to serve the defendant. But under Rule 4(c)(3) of the Federal Rules of Civil Procedure, the district court “may order that service be made by a United States marshal or deputy marshal or by a person specially appointed by the court.” And where the plaintiff proceeds in forma pauperis, the court “must so order.”

But sometimes, the Marshals Service’s initial efforts to track down a defendant fail. So it happened in Williams v. Werlinger, No. 14-1376 (Aug. 5, 2015).

Williams sued Werlinger, the former warden at the prison where Williams was held, for violating his constitutional rights. Because Williams was approved to file in forma pauperis, the district court directed the marshals to serve Werlinger. However, “within days” of the court’s order, the marshals responded that they couldn’t serve Werlinger “because he had retired the previous March and left no forwarding address.”

The district court did not accept this apparently feeble effort, instead directing the marshals to “attempt to locate defendant Werlinger by contacting the Federal Bureau of Prisons or conducting an internet search for public records for the defendant’s current address or both.” But just two days later, the marshals reported that the search again failed because they couldn’t find Werlinger “using internet database searches.” This time, the district court accepted the marshals’ inability to find Werlinger and ordered Williams himself to find and serve him. Left to his own devices (and stuck in a federal prison), Williams failed to serve Werlinger, and the case was dismissed.

On appeal, the Seventh Circuit channeled Harrison Ford’s character from The Fugitive. Noting that “[t]he Marshals are experts at hunting down fugitives,” the court refused to accept their excuse that they couldn’t find Werlinger because he didn’t leave a forwarding address. “It should be a good deal easier to track down a retired federal prison warden than a master criminal on the lam.” Noting that Werlinger likely was receiving a federal pension and had only retired three months earlier, the court expressed incredulity at the idea that the marshals were unable to find him.

In closing, the court directed the Marshals Service to “redouble[] its efforts to FIND WERLINGER!” (emphasis in original). With any luck, this search will be easier than finding the one-armed man. If all else fails, maybe Tommy Lee Jones can come out of retirement to help – if they can find him.

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