United States District Court, S.D. Georgia, Savannah Division
Court is again confronted with pro se plaintiff
Har'rell Chisholm's difficulty perfecting service on
the defendants. The Court denied his original request for
service by a United States Marshal because he is not among
those entitled to such service, under Fed.R.Civ.P. 4(c)(3),
and he did not indicate any attempt at private service.
See doc. 5. Plaintiff now renews his request and
indicates that he unsuccessfully attempted service.
See doc. 6.
"Proof of Attempt of Service, " which the Court
construes as a renewal of his motion for Marshal service,
indicates that a Chatham County, Georgia Sheriffs deputy
attempted to serve "JAG" (presumably an office of
the Army's Judge Advocate General's Corps) and was
informed that "they will only accept service by Federal
Marshal." Doc. 6 at l. Plaintiff now seeks Marshal
service because "there is no other acceptance of service
the JAG office at Hunter Army Airfield will allow."
Federal Rules of Civil Procedure provide specific
instructions for serving the United States or "Its
Agencies, Corporations, Officers, or Employees."
See Fed. R. Civ. P. 4(i). Without expressing any
opinion on whether the defendants, as identified in the
Complaint, are properly named or subject to suit,
appears that all are agencies or employees of the United
States. The information in plaintiffs motion does not
indicate any attempt to comply with the provisions of Rule
Court again declines to order Marshal service. If plaintiff
contends that he is unable to perfect service according to
the terms of Rule 4(i) within the previously extended
deadline, he may renew his motion for Marshal service,
including a full explanation of his attempts to serve the
United States pursuant to Rule 4(i)(1) and/or the relevant
agencies or employees pursuant to Rule 4(i)(2) or (3).
 The proof of service that plaintiff
has submitted does reflect an unsuccessful service attempt,
but the reason listed is illegible. See doc. 6 at 3.
The submitted proof of service doesn't provide any
further indication of where service was attempted or why it
 The Court is not convinced that it has
jurisdiction over plaintiffs claims. He invokes the
Court's subject matter jurisdiction under 28 U.S.C.
§§1331 (presentation of a federal question) and
1343 (jurisdiction over civil rights claims). Doc. 1 at 2.
His substantive claims include "intentional infliction
of emotional distress, wrongful death, [and] gross
negligence, " arising out of his son's death while
serving as a member of the United States Army Rangers and he
seeks money damages. See id.at 4 (listing claims),
25-26 (seeking $300, 000, 000 in compensatory and punitive
damages). Those claims appear to implicate the Court's
jurisdiction under the Federal Tort Claims Act. See
28 U.S.C. § 1346(b)(1) (providing exclusive jurisdiction
in United States District Courts of "civil actions on
claims against the United States . . . for . . . personal
injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting
within the scope of his office or employment, under
circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of
the place where the act or omission occurred.").
However, the United States Supreme Court has interpreted the
Act to exclude "injuries to servicemen where the
injuries arise out of or are in the course of activity
incident to service." Feres v. United States,
340 U.S. 135, 146 (1950).
Plaintiffs Complaint indicates that his son's
death may have occurred during "training"
undertaken as a Ranger. See, e.g., doc. 1 at 13-17
(indicating that plaintiffs son was injured during a
parachute training exercise). However, the Complaint also
includes allegations which imply that plaintiff does not
accept that explanation. See Id. at 17 (stating
"Plaintiff only had to prove that his physically ill son
SSgt Avonye' Chisholm was not on a parachute training
proficiency jump, the evidence and exhibits shows he
physically could not [sic]."). It is not clear whether,
as a whole, the allegations are sufficient to survive a
jurisdictional challenge, asserted either by the Court,
sua sponte, or by a defendant. See Fed. R.
Civ. P. 12(h)(3) ("If the court determines at any time
that it lacks subject-matter jurisdiction, the court must
dismiss the action."); Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006) ("[C]ourts . . .
have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a
challenge from any party.").
Given the complexity of plaintiffs' allegations, the
Court will not act on its jurisdictional concerns until the
more immediate issues of service are resolved. If plaintiff
is unable to perfect service through private means, however,
a more thorough examination of the basis of the Court's