Calhoun v. Blumenthal et al
PRISCS - RULING denying 27 Motion to Dismiss. Signed by Judge Vanessa L. Bryant on 4/12/11. (Corriette, M.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
RICHARD BLUMENTHAL, ET AL.,
CASE NO. 3:10-cv-180 (VLB)
April 12, 2011
RULING ON DEFENDANTS’ MOTION TO DISMISS [Doc. #27]
The plaintiff, Raymond Calhoun, filed this civil rights action pro se pursuant
to 28 U.S.C. § 1915. He alleges, inter alia, that beginning in September 2009, the
defendants denied him medication for treatment of his diabetes and high blood
pressure conditions. Pending before the Court is the defendants’ motion to
dismiss. [Doc. #27]. For the reasons set forth below, the motion is denied.
Facts and Procedural Background
On September 3, 2010, the plaintiff filed an amended complaint naming the
following individuals as defendants: Drs. James O’Halloran and Daniel Bannish,
Warden Walter Ford, Nursing Supervisor Ann Marie, Medical Manager Rikel Lightner
and Medical Services Coordinator N. Hein. On October 20, 2010, the Court issued
an Initial Review Order dismissing the official capacity claims against the
defendants and concluding that the individual capacity claims should proceed
against defendants O’Halloran, Bannish, Ford, Ann Marie, Lightner and Hein in their
individual capacities. The Court directed the Clerk to effect service of the amended
complaint on the defendants in their individual capacities by use of Notice of
Lawsuit and Waiver of Service of Summons forms.
On October 28, 2010, the Clerk mailed a copy of the amended complaint and
Notice of Lawsuit and Waiver of Service of Summons forms to each defendant.
Defendants Ford, Ana Marie Deeb, Rikel Lightner and Nathan Hein have returned
signed Waiver of Service of Summons forms to the Court. To date, defendants
O’Halloran and Bannish have failed to return their waiver forms.
The defendants move to dismiss certain claims in the amended complaint
pursuant to Rules 12(b)(6) and 12(b)(2) of the Federal Rules of Civil Procedure. They
argue that the claims against Commissioner Brian Murphy should be dismissed for
failure to state a claim upon which relief may be granted and the claims against
defendants O’Halloran and Bannish should be dismissed on the ground that the
Court lacks personal jurisdiction over them because they have not been served with
a copy of the amended complaint. The plaintiff opposes the motion to dismiss.
Commissioner Brian Murphy
Although Commissioner Brian Murphy was named in the complaint, he is not
named as a defendant in the amended complaint. The plaintiff concurs that he did
not include Commissioner Brian Murphy as a defendant in the amended complaint
and does not seek to proceed as to any claims against him. Accordingly, the
motion to dismiss is denied as to any claims against Commissioner Brian Murphy
because he is no longer a defendant in this action.
Drs. Bannish and O’Halloran
Defendants Bannish and O’Halloran argue that the claims against them
should be dismissed because the Court lacks personal jurisdiction over them due to
insufficiency of process. They contend that the plaintiff was required to serve them
in the manner set forth in Connecticut General Statutes § 52-57(a), which provides
that process “shall be served by leaving a true and attested copy of it, including the
declaration or complaint, with the defendant, or at his usual place of abode, in this
state.” They further contend that the claims against them should be dismissed
because the plaintiff failed to effect service of the amended complaint pursuant to
Conn. Gen. Stat. § 52-57(e) within the 120 day period set forth in Rule 4(m), Fed. R.
Civ. P.1 The defendants’ argument is misplaced.
When an inmate files an action in forma pauperis the responsibility for service
is assumed by the Court. See 28 U.S.C. § 1915(d) (“The officers of the court shall
issue and serve all process . . . .”); Antonelli v. Sheahan, 81 F.3d 1422, 1426 (7th Cir.
1996) (an inmate may rely on the United States Marshal Service to serve process).
Because an inmate must rely on the Court and the United States Marshal Service to
effect service of the complaint, any delay attributed to the Court or the Marshal
Service “automatically constitutes ‘good cause’ preventing dismissal under Rule
4(m).” Mitchell v. Shomig, 969 F. Supp. 487, 493 (N.D. Ill. 1997) (citing Graham v.
Rule 4(m), Fed. R. Civ. P. provides that “[i]f a defendant is not served within 120
days after the complaint is filed, the court— on motion or on its own after notice to the
plaintiff— must dismiss the action without prejudice against the defendant or order that
service be made within a specified time.”
Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)); see also Wilson v. Vaughn, No. CIV.A 936020, 1996 WL 528870, at *1 (E.D. Pa. Mar. 14, 1996).
Here, the Court ordered the amended complaint to be served on the
defendants in their individual capacities only. Under Rule 4(d), Fed. R. Civ. P.,
[a]n individual, corporation, or association that is subject to
service under subdivision (e), (f), or (h) has a duty to avoid
unnecessary costs of serving the summons. The plaintiff
may notify such a defendant that an action has been
commenced and request that the defendant waive service of
a summons. . . . If a defendant located within the United
States fails, without good cause, to sign and return a waiver
requested by a plaintiff located within the United States, the
court must impose on the defendant . . . expenses later
incurred in making service; and . . . reasonable expenses,
including attorney’s fees, of any motion required to collect
those service expenses.
Rule 4(d)(1) and (2), Fed. R. Civ. P.
Thus, the Federal Rules of Civil Procedure provide that an individual
defendant need not be initially served with a summons and a copy of a complaint or
amended complaint, but instead may be served via United States Mail using Notice
of Lawsuit and Waiver of Service of Summons forms. Accordingly, the defendants’
contention that they were required to have been served with a summons and copy
of the amended complaint either in person or at their abode pursuant to Conn. Gen.
Stat. § 52-57(e), is incorrect.
As indicated above, the Clerk mailed Notice of Lawsuit and Waiver of Service
of Summons forms accompanied by copies of the amended complaint to defendants
Bannish and O’Halloran, but they did not sign or return the Waivers to the Court.
Pursuant to the Court’s Initial Review Order, on the thirty-fifth day after mailing the
Waiver forms to defendants Bannish and O’Halloran, the Clerk was to report to the
Court that signed waiver forms had not been returned. In addition, the Clerk was to
prepare and send the necessary paperwork to the United States Marshal to enable
him to effect personal service of the amended complaint on defendants Bannish and
O’Halloran. The Clerk has reported that she in the process of preparing the
necessary documents to send to the United States Marshal to permit him to
personally serve defendants Bannish and O’Halloran. Thus, the fact that the
amended complaint has not yet been served on defendants Bannish and O’Halloran
cannot be attributed to the plaintiff and dismissal under Rule 4(m), Fed. R. Civ. P. is
not warranted. See Rule 4(m), Fed. R. Civ. P. (“But if the plaintiff shows good cause
for the failure [to serve the complaint within the 120 period], the court must extend
the time for service for an appropriate period.” ). The motion to dismiss is denied
on this ground.
The Motion to Dismiss [Doc. # 27] is DENIED.
SO ORDERED this 12th day of April, 2011, at Hartford, Connecticut.
Vanessa L. Bryant
United States District Judge
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