Joseph A. Williams v. Robert Werlinger

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3746
J OSEPH A. WILLIAMS,
Plaintiff-Appellant,
v.
R OBERT WERLINGER , et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 13-cv-819-bbc — Barbara B. Crabb, Judge.
____________________
SUBMITTED J ULY 22, 2015 — D ECIDED A UGUST 5, 2015
____________________
Before P OSNER , EASTERBROOK , and S YKES , Circuit Judges.
P OSNER , Circuit Judge. History is rich in searches for the
missing. The search for the Holy Grail, for Dr. Livingston,
for Roald Amundsen, for Amelia Earhart, for Jimmy Hoffa,
for the Fountain of Youth, for the lost continent of Atlantis—
and now for Robert Werlinger.
Rule 4(c)(3) of the Federal Rules of Civil Procedure pro-
vides that “at the plaintiff's request, the court may order that

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2 No. 14-3746
service be made by a United States marshal or deputy mar-
shal or by a person specially appointed by the court. The
court must so order if the plaintiff is authorized to proceed
in forma pauperis under 28 U.S.C. § 1915 … .” The plaintiff
in this case, an inmate of the Oxford Federal Correctional
Institution in Oxford, Wisconsin, filed suit against a former
warden of the prison, Robert Werlinger, on November 6,
2013, seeking damages for violations of his constitutional
rights. (Other defendants are named in the complaint, but it
appears that the plaintiff is interested only in obtaining relief
against Werlinger.) After screening the complaint pursuant
to 28 U.S.C. § 1915A, the district judge allowed the plaintiff
to proceed pro se against Werlinger under section 1915,
thereby bringing into play the passage we quoted from Fed.
R. Civ. P. 4(c)(3) and directing the United States Marshals
Service to serve defendant Werlinger.
That directive was issued in June 2014. The Marshals
Service replied within days that it couldn’t serve Werlinger
because he had retired the previous March and left no for-
warding address. In August the district court, in the person
of magistrate judge Peter Oppeneer, directed the Marshals
Service “to make another attempt to serve the defendant.
The marshal may attempt to locate defendant Werlinger by
contacting the Federal Bureau of Prisons or conducting an
Internet search of public records for the defendant’s current
address or both.” The magistrate judge added that the Mar-
shals Service would not have to reveal Werlinger’s address
to the plaintiff.
That was fine, but we are troubled by the magistrate
judge’s further statement that “reasonable efforts do not re-
quire the marshal to be a private investigator for civil liti-

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No. 14-3746 3
gants or to use software available only to law enforcement
officers to discover addresses for defendants whose wherea-
bouts are not discoverable through public records." In sup-
port of this proposition he cited our decision in Sellers v.
United States, 902 F.2d 598 (7th Cir. 1990)—a parallel decision
as we’ll see—but there is nothing in it to suggest, as the mag-
istrate judge in the present case could be interpreted as sug-
gesting, that a perfunctory public records search is all that is
required to comply with the duty imposed on the Marshals
Service by Rule 4(3)(c).
Just two days after the second directive the Service terse-
ly replied: “Please refer back to former [response to direction
to serve Werlinger]. Werlinger has retired from FCI Oxford.
No forwarding info available. Was not able to locate using
internet database searches.” Apparently satisfied with the
response, the magistrate judge (a different one—Stephen L.
Crocker) told the plaintiff that he was now on his own, and
gave him a couple of months to find Werlinger through his
own efforts, which he wasn’t able to do. So in November the
district judge dismissed the complaint without prejudice.
The district court should not have accepted the responses
of the Marshals Service to the order to serve Werlinger. Not
that the Service can be expected to do the impossible. If
Werlinger changed his name to Siddhārtha Gautama and is
now a monk of a Buddhist temple in Tibet, the Marshals
Service probably couldn’t find him by efforts proportionate
to the importance of finding him; and then the plaintiff
would be out of luck. But as should be evident from our
opinion in Sellers v. United States, supra, 902 F.2d at 602, the
Service had to do more than it did to try to find the ex-
warden. It is most unlikely that Werlinger has emigrated,

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4 No. 14-3746
turned into a witch’s familiar, or otherwise vanished. Proba-
bly he still lives in Wisconsin and probably he receives a
federal pension—and, if so, the Bureau of Prisons must have
a record of it and of the address to which his pension bene-
fits are sent. The Bureau or the prison or both must have
Werlinger’s personnel records, which would indicate his
home address when he was warden. If he has since moved,
the real estate agent who handled the sale of his house may
know where he moved to. In all likelihood his successor as
warden, or members of his staff at the prison, know his ad-
dress, whether postal or email. It’s shameful that in response
to the district court’s second directive the Marshals Service
gave up looking for Werlinger after just two days. The Mar-
shals are experts at tracking down fugitives. It should be a
good deal easier to track down a retired federal prison war-
den than a master criminal on the lam. It was only three
months before the search began that he’d retired. The district
judge must apply more pressure to the Service to find him.
All this is not to suggest that the Marshals Service is or
should be the primary organ for finding and serving de-
fendants in civil cases. Ordinarily the plaintiff, or his lawyer
if he has one (Williams does not), bears the primary respon-
sibility for seeking out the defendant and serving him. Only
if diligent efforts by the plaintiff or his lawyer fail to find
and serve the defendant should the district court order the
Marshals Service to find and serve him. But this case is spe-
cial because Rule 4(c)(3) provides that the judge must order
the Marshals Service (or “a person specially appointed by
the court,” but no such person was appointed) to serve the
defendant if the plaintiff is authorized, as he was in this case,
to proceed in forma pauperis under 28 U.S.C. § 1915. The
district judge issued the order, but didn’t follow it up. And

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No. 14-3746 5
when later the magistrate judge prematurely allowed the
Marshals Service to abandon the search and told the plaintiff
that he would have to find Werlinger on his own if he could,
and the plaintiff, being an unrepresented prisoner seeking
an elusive quarry, couldn’t find him though he tried, the dis-
trict judge dismissed the case.
The dismissal, being premature, is reversed and the case
remanded for further proceedings consistent with this opin-
ion. The running of the statute of limitations shall be tolled,
as explained in Sellers v. United States, supra, 902 F.2d at 602,
while the Marshals Service redoubles its efforts to FIND
WERLINGER!

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