Quigley v. Williams et al
ORDER. As set forth in the attached Order, the Court will permit plaintiff one final opportunity to serve process on defendants Williams, Doe #1 (a/k/a FNU1 Evans), Doe #2 (a/k/a FNU2 Evans), Thibodeau, Martin, Reynoso, Czikowsky, and Daniels in their individual capacities, on or before June 8, 2022. Plaintiff shall carefully read the attached Order for details on proper service of process. Plaintiff shall file sufficient proof of service, as described in the attached Order, on or before June 22, 2022. Failure to provide sufficient proof of service by that deadline as to each defendant will result in dismissal of the Complaint as to those defendants pursuant to Federal Rule of Civil Procedure 4(m). It is so ordered. Signed by Judge Sarah A. L. Merriam on 5/9/2022. (McCallum, C.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
CAPTAIN WILLIAMS, et al.
Civil No. 3:21CV01158(SALM)
May 9, 2022
Self-represented plaintiff Jay Quigley, a sentenced inmate 1
in the custody of the Connecticut Department of Correction
(“DOC”), brings this action pursuant to 42 U.S.C. §1983 against
the following DOC employees, all of whom are alleged to work at
Corrigan-Radgowski Correctional Center (“Corrigan”): Captain
Williams, Lieutenant Daniels, Correction Officer John Doe #1
(a/k/a FNU1 Evans), Correction Officer Thibodeau, Correction
The Court may take judicial notice of matters of public record.
See, e.g., Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006); United States v. Rivera, 466 F. Supp. 3d 310, 313 (D.
Conn. 2020) (taking judicial notice of BOP inmate location
information); Ligon v. Doherty, 208 F. Supp. 2d 384, 386
(E.D.N.Y. 2002) (taking judicial notice of state prison website
inmate location information). The Court takes judicial notice of
the Connecticut DOC website, which reflects that Quigley was
sentenced on January 20, 2017, to a term of imprisonment that
has not expired. See
04839 (last visited May 9, 2022).
Officer John Doe #2 (a/k/a FNU2 Evans), Correction Officer
Martin, Correction Officer Reynoso, Correction Officer
Czikowsky, RN Allison Hill, RN Janine M. Brennan, and MD Gerard
G. Gagne. See generally Doc. #1.
Plaintiff filed this action on August 30, 2021, see id.,
and paid the filing fee on that same date. As required by 28
U.S.C. §1915A, the Court conducted an initial review of
plaintiff’s Complaint, and permitted the following claims to
proceed: (1) “the Eighth Amendment excessive force claims
against defendants Williams, Doe #1, Doe #2, Thibodeau, Martin,
Reynoso, Czikowsky in their individual capacities for damages;”
(2) “the Eighth Amendment failure to intervene claims against
Lieutenant Daniels in her individual capacity for damages; and” (3)
“the Eighth Amendment deliberate indifference to serious medical
needs claim against RN Hill in her individual capacity for
damages.” Doc. #7 at 17. The Court informed plaintiff that he could
either file an Amended Complaint or proceed to service on the
original Complaint, as limited by the Initial Review Order. See id.
at 18. The Court further informed plaintiff that, because he did
not proceed in forma pauperis, he was “responsible for serving the
Summons and Complaint on any defendant who does not timely return
the waiver of service form[,]” and that “[s]ervice must be made
within 90 days” of the Initial Review Order, that is, on or before
February 13, 2022. Id. at 19.
On November 30, 2021, plaintiff filed a notice informing the
Court that he mailed a “Notice of Lawsuit and Request to Waive
Service of Summons; a Waiver of the Service of Summons; a copy of
the Verified Complaint; [and] a copy of the Amended Initial Review
Order” to each defendant on November 22, 2021. Doc. #9 at 1. On
January 7, 2022, plaintiff filed a “Declaration for Entry of
Default[,]” seeking an entry of default against all defendants.
Doc. #10 at 1. Plaintiff informed the Court that “[m]ore than 30
days have elapsed since the date on which the defendants herein
were served with summons and a copy of the plaintiff’s complaint,
excluding the date thereof.” Id. (sic). On January 12, 2022,
plaintiff filed a signed “Waiver of the Service of Summons” form
for defendant Hill. Doc. #12. No waivers were filed for any other
On January 17, 2022, the Court denied plaintiff’s Declaration
for Entry of Default and explained that “[p]laintiff has
demonstrated that certain defendants have failed to respond to a
waiver of service” and that waiver of service is not required, so
plaintiff “must arrange for service of process” on the remaining
defendants. Doc. #13. On February 4, 2022, plaintiff filed a
duplicate of his Declaration for Entry of Default, see Doc. #15,
and the Court again reminded plaintiff that “defendants who have
not waived service are not in default unless they have been
properly served.” Doc. #16.
On February 15, 2022, plaintiff filed a motion for
extension of time, seeking an additional sixty days to serve the
remaining defendants. See Doc. #18. On that same date, the Court
granted plaintiff’s motion, nunc pro tunc, extending the
deadline for plaintiff to serve the remaining defendants to
April 14, 2022. See Doc. #19. Due to the lengthy extension
granted and the requirement imposed by Federal Rule of Civil
Procedure 4(m) that the Court dismiss a complaint that is not
timely served, the Court advised plaintiff that “it is unlikely
that further extensions of this deadline will be granted.” Id.
On April 19, 2022, plaintiff filed a Notice of Service,
stating that the remaining defendants “were served in their
individual capacities at Corrigan Correctional Center 986
Norwich-New London Turnpike Uncasville Connecticut 06382 by a
private server, Chance Grady[.]” Doc. #24 at 1 (sic). Plaintiff
stated that defendants “were provided with a Notice of Lawsuit
and Request to Waive Service of Summons, a Waiver of Service of
Summons, a Copy of the Complaint, [and] a copy of the Amended
Initial Review Order.” Id. On that same date, the Court entered
the following order:
ORDER re 24 Notice of Service. Plaintiff has filed a
notice asserting that “Defendant Captain Williams,
Defendant Lieutenant Daniels, Defendant C/O Thibodeau,
Defendant C/O Martin, Defendant C/O Reynoso, and
Defendant C/O Czikowsky” were all “served in their
individual capacities at Corrigan Correctional Center...
by a private server, Chance Grady[.]” Doc. #24 at 1.
The District of Connecticut Local Rules require: "The
plaintiff shall file proof of service complying with
Fed. R. Civ. P. 4(l), or proof of waiver of service,
within 7 days after plaintiffs receipt of such proof.”
D. Conn. L. Civ. R. 4(d). The Guide for Self-Represented
Litigants, which was mailed to plaintiff on February 16,
2022, explains that such proof can be in the form of
“the return of service and declaration on the back of
the original summons” or an affidavit of “the person
who effected service[.]” D. Conn. Guide for SelfRepresented Litigants at 11. A Notice submitted solely
by the plaintiff is not sufficient proof of service.
Plaintiff shall file proof of service as to these
defendants on or before May 3, 2022. The Court is mindful
of the difficulties self-represented plaintiffs face in
effecting service of process, and acknowledges that
plaintiff has made significant efforts to serve the
remaining defendants. However, as plaintiff has been
previously warned, “the Federal Rules of Civil Procedure
require dismissal of a complaint that is not timely
served.” Doc. #19 (citing Fed. R. Civ. P. 4(m)).
Accordingly, if plaintiff does not provide proof of
service as to the remaining defendants by May 3, 2022,
the claims against those defendants may be dismissed.
Doc. #25. On April 20, 2022, plaintiff filed another Declaration
for Entry of Default, stating he was informed that: “Upon video
recorded entry to Corrigan Correctional Center (via handheld
cellphone footage) captured by Grady; Lieutenant Hunt greeted
Grady, she (Hunt) told Grady that since he (Grady) is not a U.S.
Marshal, she (Hunt) is throwing away the complaint and summons
forms left by Grady in the garbage.” Doc. #26 at 2. Plaintiff
asserted that this refusal by a DOC employee to accept service on
behalf of defendants Williams, Daniels, Thibodeau, Martin, Reynoso,
and Czikowsky, supported an entry of default against those
defendants. See id. at 2-3.
Plaintiff has not filed waivers of service or proof of service
as to the remaining defendants. See Doc. #25.
SERVICE OF PROCESS UNDER CONNECTICUT LAW
“Connecticut law prescribes different methods of service
for state employees served in their official capacities and
their individual capacities.” Payne v. Sardi, No.
3:16CV00396(VLB), 2017 WL 601397, at *3 (D. Conn. Feb. 14,
2017). Here, plaintiff has brought claims against defendants in
their individual capacities only, so he must effect individual
capacity service. See Doc. #7 at 17.
The Federal Rules of Civil Procedure permit a party sued in
his or her individual capacity to waive service. See Fed. R.
Civ. P. 4(d). “The plaintiff may notify such a defendant that an
action has been commenced and request that the defendant waive
service of a summons.” Fed. R. Civ. P. 4(d)(1). If a defendant
fails to waive service, however, plaintiff must effect service.
“[S]imply requesting that a defendant waive service under Rule
4(d) is not a substitute for completing service when no waiver
is returned.” Tung v. Hemmings, No. 19CV05502(RPK)(SJB), 2021 WL
4147419, at *4 (E.D.N.Y. Sept. 13, 2021).
Because these defendants did not waive service, plaintiff
was required to serve them. “‘[W]ith respect to an individual
who is an officer or employee of the State but is not sued as
such, Connecticut law requires that service be made’ pursuant to
§52–57(a).” Davis v. Mara, 587 F. Supp. 2d 422, 426 (D. Conn.
2008) (quoting Bogle-Assegai v. Connecticut, 470 F.3d 498, 507
(2d Cir. 2006)) (collecting cases). Connecticut law requires an
individual defendant “be served by leaving a true and attested
copy of [the summons and complaint] with the defendant, or at
his usual place of abode, in this state.” Conn. Gen. Stat. §5257(a); see also Bogle-Assegai, 470 F.3d at 507-08. Thus, the
summons and complaint must be handed directly to each defendant,
or left at his or her home address. Individual capacity service
may not be effected by leaving the summons and complaint at any
defendant’s work address. See Marion v. Marion, No. CV-970057153-S, 1998 WL 351900, at *3 (Conn. Super. Ct. June 18,
1998) (finding that “leaving the process at [defendant’s] office
with his receptionist” did not satisfy the requirements of
Conn. Gen. Stat. §52-57(a)). Accordingly, even if Grady had left
the summons and complaint with Lieutenant Hunt, at the remaining
defendants’ place of work, that would not be sufficient to
effect service on them.
III. PROOF OF SERVICE
Upon serving the Complaint, “proof of service must be made
to the court.” Fed. R. Civ. P. 4(ℓ)(1). “Except for service by a
United States marshal or deputy marshal, proof must be by the
server’s affidavit.” Id. Plaintiff has not provided an affidavit
of the server, that is, the person who made service. Plaintiff
must file such an affidavit, if he asserts that the remaining
defendants have in fact been properly served. The affidavit must
describe the means and manner of service, and satisfy the Court
that each defendant was served in full compliance with Conn.
Gen. Stat. §52-57(a). The affidavit must be made by the process
server; it may not be by plaintiff himself. The Court encourages
plaintiff to consider hiring a professional private process
server to ensure that service is effected properly. Plaintiff
must provide proof of service as to each remaining defendant.
DISMISSAL FOR LACK OF TIMELY SERVICE
“If a defendant is not served within 90 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 that defendant or order that service be made
within a specified time.” Fed. R. Civ. P. 4(m) (emphasis added).
A return of service or signed waiver of service must be filed as
to each defendant. Any defendant for whom either a return of
service or a signed waiver of service is not filed will be
dismissed. See id.; see also Garcia v. Figura, No.
3:19CV01484(MPS), 2022 WL 35803, at *3 (D. Conn. Jan. 4, 2022)
(dismissing claims against a defendant where “[t]he docket
reflect[ed] no return of service indicating that [defendant]
ha[d] been served in ... her individual capacity ... and no
signed waiver of service of summons”).
The Court will permit plaintiff one final opportunity to
serve process on defendants Williams, Doe #1 (a/k/a FNU1 Evans),
Doe #2 (a/k/a FNU2 Evans), Thibodeau, Martin, Reynoso,
Czikowsky, and Daniels in their individual capacities, on or
before June 8, 2022. Plaintiff shall file sufficient proof of
service, as described above, on or before June 22, 2022. Failure
to provide sufficient proof of service by that deadline as to
each defendant will result in dismissal of the Complaint as to
those defendants pursuant to Federal Rule of Civil Procedure
It is so ordered this 9th day of May, 2022, at New Haven,
SARAH A. L. MERRIAM
UNITED STATES DISTRICT JUDGE
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