Lewellen v. Morley - United States Court of Appeals for the Seventh Circuit

Lewellen v. Morley

By United States Court of Appeals for the Seventh Circuit

  • Release Date - Published: 1989-05-11
  • Book Genre: Law
  • Author: United States Court of Appeals for the Seventh Circuit
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Lewellen v. Morley United States Court of Appeals for the Seventh Circuit read online review & book description:

EASTERBROOK, Circuit Judge Richard Lewellen filed this Bivens suit seeking damages on account of his arrest and detention by federal agents in January 1983. Under Anton v. Lehpamer, 787 F.2d 1141 (7th Cir. 1986), the plaintiff in an action filed in Illinois under 42 U.S.C. § 1983 has five years from the time of the events or two years from the Supreme Court's decision in Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (April 17, 1985), whichever comes first, to commence his action. Suits under Bivens must meet the same schedule. Bieneman v. City of Chicago, 864 F.2d 463, 467-70 (7th Cir. 1988). Our suit, filed on March 1, 1988, comes too late by either measure. The district court dismissed this suit as untimely, and we must decide whether Lewellen has an adequate excuse for the delay. This is Lewellen's second suit arising out of the same events. In the first, Lewellen v. Dwyer, filed February 27, 1987, Lewellen's counsel attempted to serve the federal defendants by mailing the complaint under Fed.R.Civ.P. 4(c)(2)(C)(ii) to the Chicago office of the Drug Enforcement Administration. None of the defendants lives there. Unless the defendant returns an acknowledgment within 20 days (none did), counsel must resort to regular service. Three months later counsel tried to serve a subpoena requiring someone from the DEA to appear for a deposition and disclose the addresses of the named defendants. This effort to obtain information -- like any other deposition sooner than 30 days after service of process -- required leave of court. Fed.R.Civ.P. 30(a). Leave was not forthcoming, because counsel from the Department of Justice appeared and told the judge that the Department had established a mechanism for obtaining addresses and other information without the need for depositions. 28 C.F.R. §§ 16.21-16.29. (These regulations had been brought to the attention of Lewellen's lawyer, first by phone and then by letter, before the hearing.) Lewellen's lawyer disdained this method and did not try any other, such as requesting the marshal to serve the complaint. See Del Raine v. Carlson, 826 F.2d 698, 705 (7th Cir. 1987). He stood on his demand for a deposition until September 1987, but by then it was too late: the district court dismissed the action against the federal defendants on January 29, 1988, for failure to obtain service within 120 days per Fed. R.Civ.P. 4(j), finding that the failure to serve was ""utterly inexcusable.""

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