Unpublished Disposition, 852 F.2d 1289 (9th Cir. 1986)Annotate this Case
Kenneth R. ALFORD, Plaintiff-Appellant,v.EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; United StatesPostal Service, Defendants-Appellees.
United States Court of Appeals, Ninth Circuit.
Submitted Feb. 26, 1988.* Decided July 19, 1988.
Before FLETCHER, PREGERSON and CANBY, Circuit Judges.
Kenneth Alford appeals pro se the district court's dismissal of his employment discrimination action.
On June 2, 1986, Alford filed a pro se action alleging employment discrimination by the United States Postal Service.1 He also named the Equal Employment Opportunity Commission as a defendant, alleging that the agency failed to inform him of his rights and violated statutory obligations towards him. On September 26, 1986, the court granted the EEOC's motion to dismiss, for failure to state a claim. During the hearing on the motion, the court also noted that Alford had failed to serve the summons and complaint against the Postal Service on the United States Attorney. The court advised Alford to serve the U.S. Attorney's office as soon as possible.
Following an October 31 status conference, at which Alford did not appear, the court sua sponte dismissed the complaint pursuant to Fed. R. Civ. P. 4(j) for failure to properly serve the summons and complaint within 120 days. Alford appealed.
Rule 4(j) provides that an action shall be dismissed without prejudice if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, and good cause is not shown as to why service was not effectuated. Fed. R. Civ. P. 4(j). See Reynolds v. United States, 782 F.2d 837, 838 (9th Cir. 1986). A district court's dismissal of a complaint pursuant to Rule 4(j) is reviewed for abuse of discretion. Wei v. State of Hawaii, 763 F.2d 370, 371 (9th Cir. 1985).
Alford failed to comply with the requirement of Rule 4(d) (4) and (5) which prescribe the manner for effecting service upon an officer or agency of the United States. Among other requirements, the plaintiff must deliver a copy of the summons and complaint to the United States Attorney for the district in which the action is brought. Although Alford mailed a copy of the summons and complaint to the General Counsel of the United States Postal Service in Washington, D.C., he never served the United States Attorney, even after the court informed Alford of the requirements for proper service and advised him to speak to someone in the United States Attorney's office about how properly to serve the government.2
Because Alford did not properly serve the Postal Service within 120 days after filing the complaint or show cause for his failure to effect timely service, the court properly dismissed the action pursuant to Fed. R. Civ. P. 4(j). See Wei, 765 F.2d at 371. The district court's November 7 order does not specify that the dismissal was without prejudice. The order does, however, cite Rule 4(j). We construe the order as a dismissal without prejudice and affirm on that basis.
Alford also appeals the dismissal of his claims against EEOC. In an order of October 14, pursuant to its September 26 oral decision, the district court held that Alford failed to state a claim against the EEOC. It is unclear from Alford's papers whether he intends to appeal that decision. The EEOC argues that Alford's failure to identify the October 14 order as a "judgment, order or part thereof appealed from" deprives this court of jurisdiction over Alford's claims against the EEOC. See Fed. R. App. P. 3.
The EEOC fails to recognize that we do not hold pro se litigants to the same strict compliance with technical procedural requirements as we do parties represented by counsel. See, e.g., Borzeka v. Heckler, 739 F.2d 444, 447 n. 2 (9th Cir. 1984). However, even were we to consider the merits of the dismissal, we would be compelled to affirm the district court. An adverse decision by the EEOC against an individual's discrimination claim does not give rise to a cause of action against the EEOC. See Ward v. EEOC, 719 F.2d 311, 313 (9th Cir. 1983).3
The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a)); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3
Alford's employment was terminated by the post office in 1969. He previously appealed his dismissal to the United States Civil Service Commission which upheld the termination. Alford then filed a pro se civil action in the Northern District of California. The complaint was dismissed with prejudice on the merits and that opinion was upheld by this court on November 9, 1973. No. 72-2254 (9th Cir. November 9, 1973). The Supreme Court denied certiorari
On November 5, 1986, after the order dismissing the case had been entered, Alford filed a motion for leave to proceed with his case. Alford claimed in his motion and repeats in this appeal that he was never informed of the October 31, 1986, status conference. A district court order filed June 5, 1986 set the conference and directed the parties to appear in person or through their counsel. Even if Alford did not know of the status conference, this does not excuse his failure to properly serve the government, because the district court informed Alford at the September 26 hearing that without proper service his suit would be dismissed. See Whale v. United States, 792 F.2d 951, 952 (9th Cir. 1986)
Alford's brief requests appointment of counsel to prepare his appeal. We deny the request because his appeal is without merit and his underlying action has no reasonable likelihood of success. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986)