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LEE v. CARLSON

October 14, 1986

DOUGLAS E. LEE, Plaintiff,
v.
NORMAN A. CARLSON, DALE THOMAS, LINDA LANDCASTER, DANNY WRIGHT, CHARLES CRANDELL, WINDELL HOLMES, JOHN H. LEVETT, ROBERT EAKS, MORTON, LIEUTENANT SMITH, LIEUTENANT L.H. JONES, WILLIAM O'NEILL, AND JACQUELINE MESSITE, M.D., Defendants



The opinion of the court was delivered by: WEINFELD

EDWARD WEINFELD, D.J.

Defendants, Norman A. Carlson, et al., move for an order dismissing the complaint against them pursuant to the Federal Rules of Procedure, Rules 12(b)(1), (2), (5), and (6), for lack of subject matter and personal jurisdiction, insufficiency of service of process, and failure to state a claim upon which relief can be granted.

 Plaintiff pro se Douglas E. Lee, an inmate at Greenhaven State Prison in Stormville, New York and a Florida resident, has filed suit against thirteen federal officials. He seeks to amend his complaint to add the United States government as a defendant. Plaintiff specifically alleges defendants' liability under the Federal Tort Claims Act, 28 U.S.C. § 1346(b), §§ 2671-2680 for: (1) improper confinement in a holding cell with inadequate facilities; (2) improper medical treatment; (3) denial of a tobacco-free environment; (4) loss of personal property; and (5) improper monitoring of his telephone calls, while he was housed at the Metropolitan Correctional Center ("MCC") in New York City.

 Plaintiff was in custody at the MCC on two occasions: (1) from May 18, 1984 until May 29, 1984, and (2) from July 6, 1984 to July 10, 1984.

 Discussion

 I. Service of Process

 The burden of proof is on the plaintiff to show proper service of process when service is questioned by the defendant. *fn1" The defendants allege and present affidavits, affirmations, and declarations to support their claim that plaintiff has failed to effect proper service on eleven of the thirteen defendants. They allege that defendants Carlson, Thomas, Landcaster, Crandell, Holmes, Levett, Eaks, Morton, Jones, O'Neill, and Messite were served by mail, but without the enclosure of a notice and acknowledgment form and without a postage prepaid return addressed envelope.

 Rule 4(c)(2)(C)(ii) of the Federal Rules of Civil Procedure provides that a summons and complaint may be served upon a defendant of any class,

 . . . by mailing a copy of the summons and of the complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledgment . . . and a return envelope, postage prepaid, addressed to the sender. If no acknowledgement of service under this subdivision of this rule is received by the sender within 20 days after the date of mailing, service of such summons and complaint shall be made . . .

 by personal service upon the person to be served. Our Court of Appeals, in Morse v. Elmira Country Club2 has held that mail service under Rule 4(c)(2)(C)(ii) is effective when the recipient receives the summons and complaint and accordingly has actual notice. With the exception of two of these eleven defendants, there is no dispute concerning these defendants' receipt of the summons and complaint by mail, and therefore the service was effective. *fn3"

 Service in this case, however, differs form the service in Morse because here the plaintiff failed to include an acknowledgement form and an addressed prepaid return envelope with his service. However, this does not vitiate the effectiveness of the service because the court's holding in Morse, that mail service is effective where the recipient receives the summons and complaint and accordingly has actual notice, clearly emphasizes that the effectiveness of the service depends on the receipt of the summons and complaint, not on the supplementary material to be signed and returned by the recipient which, by itself, establishes a proof of service. Failure to include the acknowledgement form and envelope does not render the service ineffective. The defect can be cured by an admission, or other proof, that in fact the summons and complaint were received.

 There is no problem of proof of service for nine out of eleven of these defendants. While defendants assert improper service of process by plaintiff on eleven of the thirteen defendants, the declarations of Carlson, Landcaster, Levett, Eaks, Jones, Messite, and O'Neill admit that they have received a summons and complaint by mail. In addition, while defendants Holmes and Morton have made no declarations of any kind, defendants' brief and their attorney's affidavit fail to assert that they did not receive service, and a Process Receipt and Return signed by a U.S. Marshall or Deputy indicates service on Holmes on August 20, 1985. These admissions by the above defendants, as well as the evidence concerning Holmes and Morton, satisfy plaintiff's burden of proof *fn4" as to actual service on these defendants.

 A different issue would arise if the movants contended they had not received the summons and complaint; however, their attack on the service by mail is based only on the failure to include the required acknowledgement. While it may be conceded that this was a technical failure to comply with Rule 4(c)(2)(C)(ii), since the essential purpose of the Rule is to assure that the process, in fact, was received by the defendant, when a defendant receives notice of the commencement of the action against him, the Rule should be liberally and not slavishly applied. *fn5" Therefore, service of process by plaintiff on defendants Carlson, Landcaster, Levett, Eaks, Jones, Messite, O'Neill, Morton, and Holmes was sufficient and has been adequately proven. *fn6"

 The defendants Crandell and Thomas each state that he has not yet been served with the summons and complaint by personal service or by certified mail. Defendant Crandell's declaration that he was not served personally or by certified mail is contradicted by the brief submitted on his behalf by the government where it is stated that Crandell (as well as ten other defendants) was served by mail. In addition, the Marshall's Process Receipt and Return states that this defendant was served with personal process. Upon this state of the record, the court finds that effective service of process was made upon Crandell.

 As to defendant Thomas, the government, in its brief, also acknowledged that service was made upon him. In this instance the Marshall's return indicated that service of process was made upon Thomas' secretary. This is not denied by her. Absent proof to the contrary, and there is none, it may be fairly inferred that the summons and complaint were delivered to him in the ordinary course of the secretary's duties. Moreover, the ...


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