ANN AIKEN, District Judge
The federal defendants now move to dismiss plaintiff's complaint as to them on the grounds that service of process has not been made on the United States Attorney nor upon the United States Attorney General, and more than 120 days have elapsed since the complaint was filed. Federal Defendants' Motion to Dismiss (#48).
Regardless of what plaintiff might think, in an action brought against federal employees for actions taken in the scope of their employment, a plaintiff must serve the United States Attorney and the United States Attorney General. Fed.R.Civ.P. 4(i)(1)(A) (B). Plaintiff's characterization of his claims against the defendants as in their "individual capacities only" is immaterial.
In a letter to the court dated March 12, 2004, counsel for the federal defendants suggested that an order "be issued ordering plaintiff Nunez to serve both the United States Attorney and the United States Attorney General." It is not the court's function to give plaintiff (even a pro se plaintiff) legal advice, or "order" plaintiff to serve a party. Therefore the court declined to issue such an order. This court did not "ignore" such request as alleged by plaintiff. The court (incorrectly) assumed that plaintiff could follow the proper procedure clearly set forth in defendants' briefs and letter to the court.
Dismissal without prejudice under Fed.R.Civ.P. 4(m) would only serve to prolonge this case. Plaintiff has arguably stated a claim (for pleading purposes) and should be entitled to get the factual basis for that claim at issue.
Therefor defendant's Motion to Dismiss (#48) is denied without prejudice. Plaintiff is allowed 60 days from the date of this order to serve the federal defendants in the manner provided by the Federal Rules of Civil Procedure. The Clerk of the court is directed to provide plaintiff with the appropriate forms for service by the United States Marshal. Plaintiff is advised that no further extensions of time to serve the federal defendants will be allowed and that failure to serve the federal defendants within the time allowed by this order will result in the dismissal of this action as to those defendants.
Plaintiff's Motion for Summary Judgment (#53) is denied.