Aug. 13, 2015 – The U.S. Court of Appeals for the Seventh Circuit says the U.S. Marshal Service must do a better job searching for a former federal prison warden, Robert Werlinger, who is named as a defendant in a lawsuit by a prison inmate.
Joseph Williams, an inmate at the Oxford Federal Correctional Institution in Oxford, is seeking damages against Werlinger for an alleged violation of his constitutional rights. The U.S. District Court for the Western District of Wisconsin allowed him to proceed pro se.
And under the Federal Rules of Civil Procedure, the court must order that the U.S. Marshal, deputy marshal, or a special court-appointed person locate and serve the defendant “if the plaintiff is authorized to proceed in forma pauperis.”
The district judge ordered the U.S. Marshal Service to serve Werlinger with the lawsuit. But the Marshals replied that Werlinger could not be found – he had retired and left no forwarding address. A magistrate judge told the Marshals to try again.
But the Marshals responded again that they could not find Werlinger through an Internet database search, and apparently did not contact the Federal Bureau of Prisons to request Werlinger’s forwarding address, even though directed to do so.
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A second magistrate judge then told Williams he was on his own. Williams could not locate Werlinger to serve the lawsuit, so the judge ultimately dismissed the case.
But in Williams v. Werlinger, No. 14-3746 (Aug. 5, 2015), a three-judge panel for the Seventh Circuit Appeals Court reversed, concluding the Marshals “had to do more than it did to try to find the ex-warden,” and must redouble efforts to “FIND WERLINGER.”
“History is rich in searches for the missing,” wrote Judge Richard Posner for the three-judge panel. “The search for the Holy Grail, for Dr. Livingston, for Roald Amundsen, for Emelia Earhart, for Jimmy Hoffa, for the Fountain of Youth, for the lost continent of Atlantis – and now for Robert Werlinger.”
The panel noted that the Marshals must do more than “perform a perfunctory public records search” to comply with its service duty under the Civil Rules of Procedure.
“Not that the service can be expected to do the impossible,” Judge Posner wrote.” 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 proof finding him; and then the plaintiff would be out of luck.”
But in this case, Posner noted, Werlinger is likely still living in Wisconsin and receiving a federal pension, meaning the Bureau of Prisons would have a record of where benefits are sent. And if he moved, the Marshals Service should be able to find him.
“The Marshals are experts at tracking down fugitives,” wrote Posner, saying the district could should apply more pressure on the Marshals to find him. “It should be a good deal easier to track down a federal prison warden than a master criminal on the lam.”
