Spinks v. Placer County

Filing 26

ORDER signed by District Judge John A. Mendez on 3/13/2018 DENYING 20 Motion to Dismiss. Defendant shall file its Answer within twenty days of the date of this Order. (Washington, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Murlene T. Spinks,

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2:15-cv-00671-JAM-KJN

Plaintiff,

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No.

v.

ORDER DENYING PLACER COUNTY’S
MOTION TO DISMISS

Placer County and DOES 1-50,

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Defendants.

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Anthony Skeaton (“Skeaton”) died on July 10, 2013 from a

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heroin withdrawal episode while incarcerated at Placer County

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Auburn Main Jail.

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mother, Plaintiff Murlene T. Spinks (“Spinks” or “Plaintiff”)

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brings this suit under 42 U.S.C. § 1983 against Defendant Placer

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County (“Defendant”) and its unnamed employees, alleging their

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indifference to Skeaton’s health conditions violated her and

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Skeaton’s constitutional rights.

Skeaton’s

See Compl. 1

Defendant moves to dismiss this action, claiming it was not

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Compl., ECF No. 1, ¶¶ 1, 5-10.

timely served.

See Mot., ECF No. 20.

Plaintiff opposes.

See

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for January 30, 2018. In deciding this motion, the
Court takes as true all well-pleaded facts in the operative
complaint.
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Opp’n, ECF No. 23.

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denies Defendant’s motion.

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I.

For the reasons explained below, the Court

FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 2013, Skeaton, an inmate at Placer County Auburn

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Main Jail, became medically distressed from a heroin withdrawal

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and collapsed and died.

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Defendant and its officers did not check on Skeaton for several

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hours, despite other inmates yelling “man down” to get the

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officers’ attention.

See Compl. ¶¶ 1, 5-10.

Plaintiff claims

See id., ¶¶ 6-10.

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Plaintiff, on behalf of her decedent son, brought suit

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against Defendant on March 25, 2015, alleging: (1) Defendant and

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its officers violated Skeaton’s Eighth Amendment rights by

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denying him serious medical aid and having an inadequate or no

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policy directing Defendant’s officials on how to provide medical

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aid and (2) Defendants’ actions and the resulting death of

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Plaintiff’s son violated her Fourteenth Amendment rights.

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Compl. ¶¶ 11-22.

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to proceed in forma pauperis (the “IFP Application”).

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See

Plaintiff simultaneously filed an application
ECF No. 2.

On February 4, 2016, the Court granted Plaintiff’s IFP

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Application and the Clerk of the Court issued a summons and civil

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case documents.

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Joint Status Report” stated that “Plaintiff(s) shall complete

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service of process on all parties within ninety (90) days of the

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date of filing of the complaint.”

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Plaintiff filed a motion on March 4, 2016 requesting that the

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U.S. Marshals Service serve Defendant with the complaint. The

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Court granted this motion four days later.

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ECF Nos. 3-5.

The Court’s “Order Requiring

ECF No. 5, at 1.

Then

ECF Nos. 6-7.

On May 31, 2016, the Court issued a minute order requiring
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Plaintiff to file a status report, which Plaintiff did on June

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25, 2016.

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former counsel stated that “[t]o date, U.S. Marshals have not

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served the defendants in this case [.]”

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1.

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action because he believed nothing further was required.

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of Stanley C. Goff (“Goff Decl.”), ECF No. 23-2, ¶¶ 5-8.

ECF Nos. 8-9.

In the status report, Plaintiff’s

Pl.’s Status Report at

Plaintiff’s former attorney explains he took no further
Decl.

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In September 2017, the Court granted Plaintiff’s request for

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substitution of counsel and Plaintiff personally served Defendant

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with the complaint on October 25, 2017.

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Plaintiff also filed a first amended complaint, but subsequently

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withdrew it.

ECF Nos. 12, 18.

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ECF Nos. 10-11, 19.

II.

OPINION

Parties may move to dismiss a complaint based on

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“insufficient service of process” under Federal Rule of Civil

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Procedure 12(b)(5).

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bears the burden of establishing that service was valid under

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Federal Rule of Civil Procedure 4.

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798, 801 (9th Cir. 2004).

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that if “a defendant is not served within 90 days after the

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complaint is filed, the court—on motion or on its own after

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notice to the plaintiff—must dismiss the action without

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prejudice against that defendant or order that service be made

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within a specified time.”

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cause for the failure, the court must extend the time for

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service for an appropriate period.”

Once service is challenged, the plaintiff

Brockmeyer v. May, 383 F.3d

Rule 4(m) states in relevant part

Id.

“But if the plaintiff shows good

Id.

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A.

Commencement Of The Time Limit To Complete Service

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Defendant first argues that because the complaint was filed
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on March 25, 2015, service was required to be accomplished no

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later than June 23, 2015.

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Mem. at 3, 5.

Not so.

The time limit for service to be completed under Rule 4(m)

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does not begin until after the Court acts on Plaintiff’s IFP

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Application.

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151-52 (E.D. Pa. 2001) (citing Jarrett v. U.S. Sprint Commc’ns

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Co., 22 F.3d 256, 259 (10th Cir. 1994), among other cases, to

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rule that the limitations period was tolled during the pendency

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of the motion for in forma pauperis); Ellis v Principi, 223

See Scary v. Phila. Gas Works, 202 F.R.D. 148,

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F.R.D. 446, 447-48 (S.D. Miss. 2004); Lowery v. Carrier Corp.,

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953 F. Supp. 151, 156 (E.D. Tex. 1997).

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Here, the time limit for Plaintiff to complete service did

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not begin until the Court granted the IFP Application on

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February 4, 2016.

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F.R.D. at 447-48 (S.D. Miss. 2004); Lowery, 953 F. Supp. at 156

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(E.D. Tex. 1997).

See Scary, 202 F.R.D. at 151-52; Ellis, 223

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B.

Extension Of Time To Complete Service

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Defendant argues that, even if Plaintiff’s time to serve

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was tolled during the pendency of the IFP Application, the

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complaint must be dismissed because Plaintiff served it almost

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21 months after the IFP Application was granted.

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Reply at 2.

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See Mem. at 5,

The Court finds otherwise.

When deciding whether to dismiss a case or extend the time

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period for service of process, Rule 4(m) provides two avenues

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for relief.

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Cir. 2009) (internal citation omitted).

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mandatory: the district court must extend time for service upon

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a showing of good cause.”

Lemoge v. United States, 587 F.3d 1188, 1198 (9th

Id.

“The first is

“The second is discretionary: if
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good cause is not established, the district court may extend

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time for service upon a showing of excusable neglect.”

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Court may also extend time for service retroactively, even after

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time for completion of service has expired.

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Airlines, 324 F.3d 1088, 1090 (9th Cir. 2003).

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Id.

The

See Mann v. Am.

Mandatory Extension of Time

The U.S. Marshals Service’s failure to effect service of

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process, where they are required to do so, may constitute good

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cause for an extension of time to complete service under Rule

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4(m).

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Cir. 1990).

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incarcerated pro se plaintiff proceeding in forma pauperis is

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entitled to rely on” the U.S. Marshals Service to serve the

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complaint and summons.

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provided “the necessary information to help effectuate service,

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plaintiff [was not] penalized by having his or her action

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dismissed for failure to effect service where the U.S. Marshal

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or the court clerk ha[d] failed to perform the duties required

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of each of them under 28 U.S.C § 1915(c)” and Rule 4.

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also Romandette v. Weetabix Co., 807 F.2d 309, 311 (2d Cir.

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1986) (finding “good cause” and holding that the district court

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erred in dismissing a pro se inmate’s case proceeding in forma

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pauperis for failure to effect service “because the U.S. Marshal

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had yet to effect personal process through no fault of the

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litigant”).

See, e.g., Puett v. Blandford, 912 F.2d 270, 275 (9th
In Puett, the Ninth Circuit held that “an

Id.

Because the plaintiff in Puett

Id.; see

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Plaintiff contends she has “good cause” for failure to

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complete service based on the order granting her IFP Application

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and the order directing the U.S. Marshals Service to complete
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service.

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have found a lack of good cause where the plaintiff is aware of

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the U.S. Marshals Service’s delays in effectuating service and

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does nothing in response.

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03186, 2013 U.S. Dist. LEXIS 93851 (N.D. Cal. Jul. 3, 2013)

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(citing Rochon v. Dawson, 828 F.2d 1107, 1110 (5th Cir. 1987),

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in directing plaintiff to provide the U.S. Marshals Service with

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necessary information to serve the defendant and warning that a

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failure to do so would result in dismissal with prejudice); see

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also Puett, 912 F.2d 270; Jacques v. McDonald, CV 16-3599, 2017

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U.S. Dist. LEXIS 193894, *5-*6 (C.D. Cal. Sept. 27, 2017)

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(dismissing pro se prisoner plaintiff’s case where plaintiff

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failed to provide necessary information to the U.S. Marshals

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Service).

See Opp’n at 6.

But, as Defendant points out, courts

Reply at 3; Harrison v. Smith, 11-CV-

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In this case, although the U.S. Marshals Service did not

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complete service as it was ordered to by the Court, Plaintiff

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has failed to show good cause.

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could have raised the U.S. Marshals Service’s failure to execute

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service with the Court and did not.

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Puett, Plaintiff had a lawyer and did not have the limitations

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in following up with the U.S. Marshals Service that a prisoner

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without a lawyer might.

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courts’ approaches to the plaintiffs in Harrison and Jacques,

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this Court also finds Plaintiff could have tried to remedy any

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apparent defects of which she had knowledge.

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U.S. Dist. LEXIS 93851; Jacques, 2017 U.S. Dist. LEXIS 193894.

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As Defendant points out, “Plaintiff had the resources

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available through her attorney to employ any number of options

She, or her former attorney,

Unlike the plaintiff in

Puett, 912 F.2d 270.

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Similar to the

Harrison, 2013

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to effectuate service [including] following up with the U.S.

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Marshals regarding service, seeking an extension from the Court

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to effectuate service and/or Court intervention regarding

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service by the U.S. Marshals [.]”

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Plaintiff, through her counsel, did not avail herself of any of

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those options.

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failed to show good cause for failure to timely serve Defendant

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under Rule 4(m)’s first avenue for relief.

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mandated to retroactively extend time for service.

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2.

Opp’n at 4.

Instead,

Accordingly, the Court finds that Plaintiff has

The Court is not

Discretionary Extension of Time

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In the absence of good cause giving rise to a mandatory

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extension of time for service, a court must proceed to the second

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step of the analysis and decide whether, in its discretion, it

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should extend the prescribed time for service.

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Johnson, CIV 02-2179, 2011 WL 6721327, *5-6 (D. Ariz. Dec. 21,

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2011); Fed. R. Civ. Proc. 4(m).

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must be predicated on a finding of excusable neglect.

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2011 WL 67212327, *5-6; Lemoge, 587 F.3d at 1198 (“The second

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[avenue for relief under Rule 4(m)] is discretionary: if good

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cause is not established, the district court may extend time for

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service upon a showing of excusable neglect.”).

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Trueman v.

The court’s discretion, however,
Trueman,

Excusable neglect encompasses situations in which the

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failure to comply with a filing deadline (or in this case, a

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service deadline) is attributable to negligence.

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F.3d at 1192.

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conduct the equitable analysis specified in Pioneer Inv. Servs.

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Co. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993), by examining

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at least four factors: (1) danger of prejudice to the opposing

See Lemoge, 587

To determine when neglect is excusable, courts

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party; (2) length of delay and its potential impact on the

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proceedings; (3) reason for the delay; and (4) whether the movant

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acted in good faith.”

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citation and quotation marks omitted); Pioneer, 507 U.S. at 395.

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In some cases, “the prejudice a denial would cause to the movant

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must also be considered, but it is not a fact that must be

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assessed in each and every case.”

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Int’l Corp., 617 F.3d 1072, 1092 (9th Cir. 2010) (internal

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quotation marks and citation omitted).

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a.

Lemoge, 587 F.3d at 1192 (internal

SEC v. Platforms Wireless

Prejudice to Defendant

Prejudice to a defendant “requires greater harm than simply

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that relief would delay resolution of the case.”

Lemoge, 587

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F.3d at 1196 (internal citation omitted).

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more time to serve would result in a defendant losing a quick

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victory, which they would have obtained if the court dismissed an

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action for untimely service.

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231 F.3d 1220, 1224-25 (9th Cir. 2000).

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victory is not sufficiently prejudicial to the defendant to deny

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the plaintiff an extension of time for service.

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2011 WL 6721327, *4.

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is also not sufficiently prejudicial to the defendant where there

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is far greater prejudice to the plaintiff from the statute of

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limitations barring re-filing.

Allowing a plaintiff

See Bateman v. U.S. Postal Service,
But loss of this quick

See Trueman,

And being forced to litigate on the merits

Id.

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Here, in contrast with Defendant, Plaintiff would suffer

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severe prejudice if the motion were granted because Plaintiff

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would be barred from re-filing the case, due to California’s two-

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year statute of limitations on personal injury actions.

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7; Chardon v. Soto, 462 U.S. 650, 654 (1983) (stating that state
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Opp’n at

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law applies in 42 U.S.C. § 1983 actions to determine what the

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limitations period is, whether the period was tolled, and the

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effects of tolling); Cal. Code Civ. Proc. § 335.1 (two years to

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bring an action for assault, battery, injury, or death by the

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wrongful act or neglect of another).

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2013 and the last date to file a complaint would have been July

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10, 2015.

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ability to re-file.

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Skeaton died on July 10,

So, if the motion is granted, Plaintiff would lose the

Defendant counters that it would suffer prejudice from the

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court granting Plaintiff extra time for service because it is

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entitled to timely litigate the events giving rise to this action

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and it may not be able to depose some of the inmates who have

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relevant testimony.

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these inmates “may be incarcerated in other distant facilities or

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may have been released and moved out of the area.”

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2.

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former employees’ memories about the relevant incidents may have

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faded.

Reply at 5.

Defendant reasons that some of

Id.; Mem. at

Further, Defendant claims that some of its own employees and

Reply at 5; Mem. at 2.

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Defendant also argues that the statute of limitations

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barring the instant action does not preclude dismissal, citing

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Cardenas v. City of Chicago, 646 F.3d 1001 (7th Cir. 2011) and

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Vaher v. Town of Orangetown, 916 F.Supp.2d 404 (S.D.N.Y. 2013).

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Reply at 5.

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In Cardenas, the plaintiffs were not proceeding in forma pauperis

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and did not rely on the U.S. Marshals Service to execute service.

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646 F.3d at 1005.

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service deficiencies and the plaintiff did not reasonably attempt

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to cure them.

Defendant’s reliance on these cases is misplaced.

In Vaher, the defendants repeatedly raised

916 F.Supp.2d at 421.
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In contrast, Plaintiff is

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proceeding in forma pauperis, relied on the U.S. Marshals Service

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to execute service (which it failed to do), and actually

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completed service upon Defendants.

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Because the severe prejudice to Plaintiff from granting the

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motion significantly outweighs the prejudice to Defendant, this

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factor weighs in favor of retroactively granting Plaintiff an

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extension to serve Defendant.

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Consulting GMBH, C04-01602, 2005 WL 1869400, *2-3 (N.D. Cal. Aug.

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4, 2005) (finding that prejudice to defendant is not sufficient

See Alamzad v. Lufthansa

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for the purposes of Rule 12(b)(5) motion where defendant would

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lose the benefit of expiration of the statute of limitations and

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plaintiff would suffer severe prejudice where he may have been

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barred from re-filing).

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b.

Length And Impact Of Delay

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The determination of whether a length of time is reasonable

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depends upon the facts of each case, considering the interest in

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finality, the reason for delay, the practical ability of the

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litigant to learn earlier of the grounds relied upon, and

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prejudice to the other parties.

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(internal quotation marks and citation omitted).

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the delay is lower where no scheduling orders for discovery or

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motion practice have been entered and the litigation has not been

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proceeding with other defendants.

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See Lemoge, 587 F.3d at 1196-97
The impact of

Trueman, 2011 WL 6721327, *6.

In this case, the length of the delay is significant—

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Defendant was served with the complaint more than 2.5 years after

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filing and more than 1.5 years after the IFP Application was

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granted.

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impact of the delay is not.

See Compl.; Order Granting IFP Application.

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But the

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While it may be difficult for Defendant to gather relevant

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witnesses to obtain testimony, it may be as difficult, if not

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more difficult, for Plaintiff to locate percipient witnesses that

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will be needed for her to meet her burden of proof in this case.

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Defendant has also maintained and already produced documents

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related to Skeaton’s death, under a public and medical records

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request.

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Defendant has conducted an investigation concerning Skeaton’s

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death.

Decl. of Mark E. Merin, ECF No. 23-1, ¶ 2.

See Reply at 4-5.

Further,

And Defendant may also still have a

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significant record of the facts surrounding Skeaton’s death.

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Cal. Gov. Code § 12525 (when a person dies while in the custody

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of a local or state correctional facility in California, the

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agency in charge of the correctional facility “shall report in

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writing to the Attorney General, within 10 days after the death,

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all facts in the possession of the law enforcement agency or

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agency in charge of the correctional facility concerning the

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death.”).

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Defendant is not necessarily greater than that which Plaintiff is

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likely to experience.

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retroactively granting Plaintiff a discretionary extension to

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serve Defendant.

Accordingly, the negative impact of the delay on

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See

c.

This factor also weighs in favor of

Reason For Delay

Courts also consider whether there are “adequate reasons for

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the delay.”

Lemoge, 587 F.3d at 1197.

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excused if the mistakes leading to untimely service were made in

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good-faith.

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(1) Plaintiff’s IFP Application status; (2) the U.S. Marshals

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Service not completing service; and (3) Plaintiff’s former

Id.

Even negligence can be

The reasons for delay in this case are:

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attorney failing to follow up with the Court or the U.S. Marshals

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Service about the failure to execute service.

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does not condone Plaintiff’s former attorney’s silence and

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inactivity in pursuing the completion of service, that silence

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and inactivity seems to be rooted in carelessness rather than

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gamesmanship.

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length of the IFP Application’s pendency and the U.S. Marshals

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Service’s failure to execute service are not all Plaintiff’s or

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her former counsel’s fault.

While the Court

Lemoge, 587 U.S. at 1197; Goff Decl. ¶¶ 5-8.

The

While Plaintiff and her former

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counsel “could have handled [their] practice better,” the Court

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finds Plaintiff has provided adequate reasons for the delay in

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service.

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Lemoge, 587 U.S. at 1197.
d.

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Good Faith

This factor depends on whether the “plaintiff acted in bad

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faith, or was engaging in gamesmanship, as opposed to simply

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being dilatory.”

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exist where a party’s “errors resulted from negligence and

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carelessness, not from deviousness or willfulness.”

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F.3d at 1197 (internal quotation marks and citation omitted).

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described above, Plaintiff has not acted in bad faith.

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finds that Plaintiff’s former counsel’s failure to be more

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proactive in pursuing the completion of service was a result of

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being dilatory, careless, or negligent, rather than any

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gamesmanship, deviousness, or willfulness.

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///

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///

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///

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///

Trueman, 2011 WL 6721327, *6.

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Good faith can

Lemoge, 587
As

The Court

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For the foregoing reasons, the Court finds that Plaintiff

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has shown excusable neglect in delaying service on Defendant and

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exercises its discretion to retroactively grant Plaintiff an

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extension to serve Defendant.

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III.

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ORDER

For the reasons set forth above, the Court DENIES

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Defendant’s motion to dismiss. Defendant shall file its Answer

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within twenty days of the date of this Order.

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IT IS SO ORDERED.
Dated: March 13, 2018

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