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January 11, 1995

DON CAMPBELL, Reg. No. N-23385, Plaintiff,

The opinion of the court was delivered by: ANN CLAIRE WILLIAMS

 Plaintiff Don Campbell has brought suit against the Illinois Department of Corrections, Michael O'Leary, Howard Peters, Charles Williams, John Groves, Michael Lane and Carol Mills, alleging that defendants kept him imprisoned beyond his legal release date in violation of the Eighth Amendment and the due process clause of the Fourteenth Amendment. On February 25, 1993, this court granted defendants' motion to dismiss plaintiff's due process claim. This matter is presently before the court on defendants' motion for summary judgment on Campbell's Eighth Amendment claim and their motion to dismiss Williams and Mills under Federal Rule of Civil Procedure 4(m). For the reasons stated below, defendants' motion for summary judgment is granted in part and denied in part. Defendants' motion to dismiss is denied.

 In October 1983, plaintiff Don Campbell *fn1" was convicted of residential burglary and sentenced to four and one half years imprisonment, with credit for time served from September of 1983. (Defendants' Statement of Uncontested Facts P 11 ("Statement of Facts")). On February 29, 1986, he was released from prison with credit for good time served, and began a Mandatory Supervised Release ("M.S.R.") term of two years, as required by Illinois law. (Statement of Facts P 15; Ill. Rev. Stat. ch. 38, para. 1005-8-1(d)(2)). On July 23, 1986, plaintiff was arrested for the unlawful use of a weapon. He was convicted of that charge on December 10, 1986, receiving a two-year sentence for the conviction. (Id. P 16). Because this latter conviction occurred during the plaintiff's M.S.R. term, he was declared an "M.S.R. violator." (Id. P 17). Campbell's M.S.R. term was revoked and he was required to serve the remainder of his M.S.R. time, as well as time not served from his previous sentence in prison. (Id. P 17). These terms were to run concurrently with his new sentence for the unlawful use of a weapon. (Id. P 18).

 Following his reincarceration, plaintiff allegedly committed a number of acts warranting the revocation of some of his good conduct credits. Over a three-day period in July 1987, the Prison Review Board revoked more than two and one-half years of Campbell's good conduct credits because he had threatened and assaulted several correctional officers and fellow inmates and disobeyed numerous direct orders. In all, Campbell lost a total of three years and three days of good conduct credits. (Id. P 28).

 Suspecting that defendants were misusing the revocation of these credits to illegally prolong his sentence, plaintiff wrote a series of letters to prison officials requesting an accounting of his sentence. (Id. P 29). In early 1987, plaintiff received a reply to his first request indicating that his projected discharge date was July 24, 1987. (Defendants' Exhibit 18). However, after a subsequent loss of good time credits for several disturbances, the plaintiff was informed that his new projected discharge date was July 28, 1990. (See Group Exhibits 3-8 and Defendants' Exhibit 19). He corresponded two more times with prison officials about the calculation of his sentence, and was informed both times that his sentence would run until 1990. (Defendants' Exhibits 20 and 21).

 Dissatisfied with the way his complaints were being handled by prison officials, Campbell filed a habeas corpus petition in state court. (Statement of Facts P 32). In an unpublished opinion by the Third District Appellate Court of Illinois, the plaintiff was found to have been incarcerated beyond his maximum sentence. Campbell v. O'Leary, No. 3-88-0702 (Ill. App. Ct. June 21, 1989). The appellate court remanded the case to a lower court for "detailed findings on the propriety of the [state's] calculations." Id. at 4. On July 30, 1990, the Will County Circuit Court found that plaintiff's sentence should have run to June 16, 1988, "and in any event no later than June 16, 1989." Id. at 3. The court then ordered the plaintiff's release from custody. Id.

 Unfortunately for Campbell, just two and one-half weeks earlier, on July 12, 1990, the state of Michigan had revived an outstanding warrant for the plaintiff's arrest. The warrant had been inactive for seven years. (Plaintiff's Response, Affidavit of Frank W. Ralph P 10). Instead of being released from prison, defendant was immediately turned over to the custody of the state of Michigan. (Statement of Facts P 33).


 I. Rule 4(m)

 Two of the defendants named in the complaint have not been served: Charles Williams, a clerk at the Pontiac Correctional Center, and Carol Mills, *fn2" a clerk at Stateville Correctional Center. Both Williams and Mills worked in the sentence calculating division of the Illinois Department of Corrections during Campbell's incarceration. Defendants have moved to dismiss Williams and Mills from the case, pursuant to Federal Rule 4(m). *fn3" (Defendants' Motion for Summary Judgment at 12). For the reasons stated below, the motion is denied.

 Rule 4(m) provides for the dismissal without prejudice of a complaint which is not properly served on a defendant within 120 days of its filing. Adopted in 1983, Rule 4(m) "attempts to harmonize the open-door policy of the federal court system and the mandate in Rule 1 for the 'just, speedy, and inexpensive determination of every action.'" 4A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1137. As the case law makes clear, the rule is mandatory. Floyd v. United States, 900 F.2d 1045 (7th Cir. 1990); Wei v. Hawaii, 763 F.2d 370 (9th Cir. 1985). However, dismissal under Rule 4(m) is not warranted if plaintiff can show "good cause" for the failure to properly effect service. Fed. R. Civ. P. 4(m). A court's determination of good cause under Rule 4(m) "entail[s] discretionary conclusions by the district court that will not be disturbed absent an abuse of discretion." Floyd, 900 F.2d at 1046.

 Plaintiff filed his suit on May 18, 1992. As of this date, neither Mills nor Williams have been served with a copy of the complaint. Because of this long delay in service, well over the 120 days that Rule 4(m) allows, defendants have moved to dismiss Williams and Mills from the case. (Defendants' Motion at 14). Under Rule 4(m), unless plaintiff can show good cause for his failure to properly serve defendants, the court must dismiss the complaint. After carefully reviewing the parties' briefs and the relevant law, the court finds that good cause has been shown.

 The court initially notes that plaintiff filed this suit without the assistance of counsel. Though certainly not dispositive, plaintiff's pro se status entitles him to a "certain degree of leniency so as his case is justly resolved on its merits rather than on the basis of procedural technicalities to the extent possible." Poulakis v. Amtrak, 139 F.R.D. 107, 109 (N.D. Ill. 1991). See generally Lewis v. Faulkner, 689 F.2d 100 (7th Cir. 1982). In recognition of this principle, numerous courts within this circuit have interpreted Rule 4(m)'s requirement of "good cause" liberally in cases where pro se litigants have made good faith efforts to comply with the Rule's dictates. See, e.g., Poulakis, 139 F.R.D. at 109; Patterson v. Brady, 131 F.R.D. 679 (S.D. Ind. 1990); Walker v. Takata, 1993 U.S. Dist. LEXIS 8424 (N.D. Ill. June 22, 1993); Calderon v. True, 1993 U.S. Dist. LEXIS 14577 (N.D. Ill. Oct. 15, 1993). As the Seventh Circuit has observed, "Congress intended Rule [4(m)] to be a useful tool for docket management, not an instrument of oppression." Floyd, 900 F.2d at 1049 (quoting United States v. Ayer, 857 F.2d 881, 885-86 (1st Cir. 1988).

 In Patterson, a pro se plaintiff was found to have done "everything in her power to effect service," but a mistake by the clerk's office had resulted in a 20-month delay in service of a crucial defendant. The court held that since the fault for the failure to serve rested "squarely on the Clerk's office," plaintiff had shown good cause for delay of service. Patterson, 131 F.R.D. at 684-85. Similarly, in Poulakis, a pro se plaintiff was erroneously informed by the clerk's office that a return receipt on a mailed summons would serve as proof of service. Poulakis, 139 F.R.D. at 108. The court there found good cause for the delay in service, since the pro se plaintiff had "sought to learn of the appropriate method for service of process and believed that he had done so." Id. In another case, the court refused to dismiss two defendants who had not been timely served by a pro se plaintiff who was incarcerated in an Indiana state prison, stating "the circumstances of a plaintiff's pro se, Indiana prisoner status" were enough to establish good cause." Ray v. Mayfield, 1987 U.S. Dist. LEXIS 6150 (N.D. Ill. June 30, 1987). As these cases demonstrate, when pro se litigants have reasonably relied to their detriment on the advice and services of others, especially individuals employed by the courts, a showing that they have made a diligent effort to effect service will generally suffice as good cause for a delay in service.

 Campbell filed this suit pro se, and at all times during these proceedings has been incarcerated in a Wisconsin state prison. Upon filing suit, plaintiff promptly provided the U.S. Marshall's Office with the proper summons forms. (Plaintiff's Response to Defendants' Motion for Summary Judgment at 6). He also made this court aware of his concerns regarding his need to rely on the Marshall's Office to properly serve defendants. Id. Four of the defendants named in plaintiff's complaint were in fact served within 31 days of filing. (Defendants' Motion at 13). Plaintiff communicated with the Marshall's office by phone and was allegedly told that he did not have to worry about the service being effected. (Plaintiff's Response at 7). During discovery, plaintiff ...

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