United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
HOLMES, III U.S. DISTRICT JUDGE
the Court are a motion (Doc. 20) to dismiss and brief (Doc.
21) in support filed by Separate Defendant Mick Epperly.
Plaintiff has filed a response (Doc. 29) and brief (Doc. 30)
in opposition to the motion. Epperly separately filed a
response (Doc. 26) to Plaintiff's affidavit (Doc. 19) of
service on Separate Defendant Kerry Headrick, who is no
longer a deputy sheriff with the Barry County, Missouri
the complaint contains no clear statement that Epperly is
sued in his individual capacity, the claims against him must
be construed as claims against him only in his official
capacity as Sheriff of Barry County, Missouri. Murphy v.
State of Arkansas, 127 F.3d 750, 754 (8th Cir. 1997).
Plaintiff also brings claims against Headrick in his official
capacity. Plaintiff's complaint, as characterized by his
brief in opposition, alleges official capacity claims against
Epperly and Headrick on the basis of the Barry County
Sheriff's deliberate indifference to the use of excessive
force by his personnel and failure to put in place policies
and procedures to prevent excessive force, which allegedly
led to Headrick using excessive force against Plaintiff while
improperly served both of these defendants, and his claims
against them will be dismissed.
initially attempted to serve Epperly and Headrick by mail
“at their last known business address.” (Doc. 14,
p. 1). Plaintiff did not argue that this method of service
was proper, either for official or individual capacity
claims. Instead, Plaintiff asked for an extension of time to
effect service, which the Court gave to him. Plaintiff then
attempted service by mail again, with restricted delivery and
return receipt requested, by sending the summonses and
complaints for Epperly and Headrick to “Barry County
Missouri, Sheriff's Department,  505 East St., Cassville,
Missouri 65625.” (Doc. 20-2, p. 3). This is the same
address from which mail sent to Epperly previously had been
returned to Plaintiff with a notation “Return to
Sender, Attempted - Not Known, Unable to
Forward.” (Doc. 14-1, p. 1). It was this delivery
failure that prompted Plaintiff's motion to extend the
time for service, and Plaintiff does not explain why he used
the same address to attempt service a second time.
official capacity claim against a person is really a suit
against his office. Banks v. Slay, 875 F.3d 876, 878
(8th Cir. 2017). The Federal Rules of Civil Procedure mandate
A state, a municipal corporation, or any other state-created
governmental organization that is subject to suit must be
served by: (A) delivering a copy of the summons and of the
complaint to its chief executive officer; or (B) serving a
copy of each in the manner prescribed by that state's law
for serving a summons or like process on such a defendant.
Fed. R. Civ. P. 4(j)(2). Service to a Missouri county
official under Rule 4(j)(2)(B) can be accomplished by
delivering a copy of the summons and complaint to the
appropriate county clerk pursuant to Missouri Supreme Court
Rule 54.13(b)(4). Cheeks v. Belmar, 331 F.R.D. 499,
505 (E.D. Mo. 2019). That process was not attempted here.
Service to a Missouri county governmental organization under
Rule 4(j)(2)(A) can be accomplished by delivering a copy of
the summons and complaint to the governmental
organization's chief executive officer. That process was
not accomplished here. “Delivering” under Rule
4(j)(2)(A) cannot be accomplished by the use of certified
mail. Yates v. Baldwin, 633 F.3d 669, 672 (8th Cir.
2011) (citing Gilliam v. Cty. of Tarrant, 94
Fed.Appx. 230 (5th Cir. 2004)); see Reed v. Choice Hotels
Int'l, Inc., No. 05-3133-CV-S-SWH, 2005 WL 8157324,
*2 (W.D. Mo. Oct. 21, 2005) (finding service by mail is
insufficient under Rule 4(j) and Missouri law). Plaintiff has
failed to effect service on a state or governmental entity,
and his official capacity claims against the Barry County,
Missouri Sheriff are subject to dismissal. Accord Porter
v. Gentry Cty. Comm'n, No. 08-6029-CV-SJ-FJG, 2008
WL 2559426 (W.D. Mo. June 23, 2008) (dismissing Missouri
action for insufficient process under similar circumstances);
Thomas v. Mo Jackson Cty., No. 07-459-CV-W-NKL, 2008
WL 276530 (W.D. Mo. Jan. 30, 2008) (same).
Court also notes that the docket does not reflect that
sufficient service has been made on Defendant Headrick in his
individual capacity. Rather, it shows only that a summons and
complaint were mailed to him at his last known place of
employment, which is insufficient to effect service of an
individual under Federal Rule of Civil Procedure 4(e).
“A core tenet of 42 U.S.C. § 1983 jurisprudence is
that an official-capacity suit against an individual is
really a suit against that official's government
entity.” Banks v. Slay, 875 F.3d 876, 878 (8th
Cir. 2017). “Although official capacity suits may be a
legal fiction, they are a legal fiction with meaning.”
Gillpatrick v. Frakes, 2018 WL 1955123, at *4 (D.
Neb. Apr. 17, 2018). “Acts performed by the same person
in two different capacities ‘are generally treated as
the transactions of two different legal
personages.'” Bender v. Williamsport Area Sch.
Dist., 475 U.S. 534, 543 n.6 (1986) (quoting F. James
& G. Hazard, Civil Procedure § 11.6, p. 594
(3d ed. 1985)). “An individual acting in his personal
capacity is a different legal person than one acting in his
official capacity.” Gillpatrick, 2018 WL
1955123, at *4.
As a result, where a defendant is sued in both his individual
and official capacities . . . the “defendant is
entitled to receive service of process in both capacities.
Service in one capacity does not confer jurisdiction over the
other capacity, even though the defendant is fully aware of
the suit.” 1 James Wm. Moore, et al., Moore's
Federal Practice § 4.503 (3d ed. 2018); see
King v. Taylor, 694 F.3d 650, 655-56 (6th Cir. 2012)
(where plaintiff sued defendant in both his individual and
official capacities, but served plaintiff only in his
official capacity, the court did not gain jurisdiction over
defendant in his individual capacity); Kirkendall v.
Univ. of Conn. Health Ctr., 205 F.3d 1323, 2000 WL
232071, at *1 (2d Cir. 2000) (unpublished opinion) (claims
against individual defendants in their individual capacities
were properly dismissed because the individual defendants did
not receive service of process in their individual
capacities); see also Robinson v. Turner, 15 F.3d
82, 85 (7th Cir. 1994) (“Service upon an employee in
his official capacity does not amount to service in his
individual capacity.”); Micklus v. Carlson,
632 F.2d 227, 240 (3d Cir. 1980) (rejecting argument that
once a defendant was served in his official capacity, he was
properly before the court in both his individual and official
Cheeks, 331 F.R.D. at 504-05. Though it is not
certain that the Eighth Circuit Court of Appeals would follow
this precedent in the event that a dual-capacity party
receives actual notice of the claims against him, there is no
showing in this action that Headrick has actual notice.
brief, Plaintiff argues in passing that if the Court finds
service is improper, additional time to serve should be
allowed under Rule 4(m). Plaintiff fails to show good cause
or excusable neglect for his failure to serve-both of which
must be shown at this stage, contrary to Plaintiff's
interpretation of the authority he cites. See Kurka v.
Iowa Cty., Iowa, 628 F.3d 953, 957 (8th Cir. 2010)
(“A showing of good cause requires at least
‘excusable neglect'-good faith and some reasonable
basis for noncompliance with the rules.”) (quoting
Adams v. AlliedSignal Gen. Aviation Avionics, 74
F.3d 882, 887 (8th Cir. 1996)). Here, Plaintiff attempted
service by mail at the same address that resulted in
Plaintiff's initial failure to serve these Defendants.
Plaintiff made no apparent attempt to improve on his initial
failure, neither by finding an alternative location for
service nor determining whether there was some insufficiency
in his chosen method of service.
addition to the absence of good cause and excusable neglect,
it appears that the Court lacks personal jurisdiction over
the Barry County, Missouri Sheriff for any purported failure
to implement policies on the excessive use of force, and
likely lacks personal jurisdiction over Defendant Headrick in
his individual capacity, given that it was Plaintiff's
unilateral actions in refusing to stop and evading arrest
throughout Barry County that led to Defendant Headrick
participating in Plaintiff's arrest just over the
Arkansas border from Missouri. Prudence and the admonition of
Federal Rule of Civil Procedure 1 counsel against ...