Bryant v. HRYCI Mental Health Department

Filing 36

MEMORANDUM OPINION. Signed by Judge Richard G. Andrews on 1/9/2018. (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JONATHAN BRYANT,
Plaintiff,
Civil Action No. 16-613-RGA

V.

DR. DAVID M. AUGUST, et al.,
Defendants.

Jonathan Bryant, Plummer Community Corrections Center, Wilmington, Delaware; Pro
Se Plaintiff.
Dana Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White & Williams,
Wilmington, Delaware, Counsel for Defendants.

MEMORANDUM OPINION

q,

January
2018
Wilmington, Delaware

A~1~~
Plaintiff Jonathan Bryant, an inmate at the Plummer Community Corrections
Center, filed this action pursuant to 42 U.S.C. § 1983. He proceeds prose and has
been granted leave to proceed in forma pauperis. The Court screened the amended
complaint on March 20, 2017, and identified cognizable and non-frivolous clams. (See

0.1. 18). Defendants move for dismissal for insufficient process and insufficient service
of process. (0.1. 29). Plaintiff opposes. (0.1. 31). Briefing on the matter is complete

BACKGROUND
On March 20, 2017, the Court screened the amended complaint, identified
cognizable and non-frivolous clams, and entered a service order for five medical
defendants. (See 0.1. 18). Summonses were issued and service packets were sent to
the United States Marshals Service on May 2, 2017. Executed returns were filed on the
court docket on May 23, 2017. (0.1. 21, 22, 23, 24, 25). The returns indicate the
service packets were accepted by Ryan McBride.

DISCUSSION
Defendants move to dismiss the claims against medical Defendants for
insufficiency of service pursuant to Fed. R. Civ. P. 4(e) and Fed. R. Civ. P. 12(b)(5), on
the grounds that the service packets were delivered to a Connections' employee who is
not an agent authorized to accept service on behalf of the medical defendants. (0.1.
29). In addition, Defendants indicate that it is unable to identify an employee referred to
by Plaintiff as Ms. Callahan. (/d.).

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A defendant may file a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(5)
when a plaintiff fails to properly serve him or her with the summons and complaint. See
Fed. R. Civ. P. 12(b)(5). A plaintiff "is responsible for having the summons and
complaint served within the time allowed by Rule 4(m)." Fed. R. Civ. P. 4(c)(1). Rule
4(m) imposes a 90-day time limit for perfection of service following the filing of a
complaint. Fed. R. Civ. P. 4(m). If service is not completed within that time, the action
is subject to dismissal without prejudice. Id. See also MCI Te/ecomms. Corp. v.

Teleconcepts, Inc., 71 F.3d 1086, 1098 (3d Cir. 1995).
The Court has been advised that it is the policy of Connections that it, and its
employees, will not waive service as set forth in Fed. R. Civ. P. 4(d). As a result,
Connections and its employees must be personally served with a summons and
complaint. The record reflects summonses were issued so Defendants could be
personally served by the United States Marshal Service. The Court notes that in
attempting to effect service, Plaintiff has complied with all court orders to serve
Defendants.
Plaintiff in an incarcerated individual. As an incarcerated individual, he must rely
upon the USMS to effectuate service. The USMS delivered the service packets for
Defendants to Ryan McBride, an individual employed by Connections Community
Support Programs, Inc. Defendants state that McBride is not authorized to accept
service on behalf of Defendants. Defendants do not indicate why McBride accepted the
service packet when he was not authorized to accept service.

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Under Rule 12(b)(5), the Court has "broad discretion" in deciding whether to
dismiss the complaint for insufficient service. See Umbenhauer v. Woog, 969 F.2d 25,
30 (3d Cir. 1992). The Third Circuit has instructed that "dismissal of a complaint is
inappropriate when there exists a reasonable prospect that service may yet be
obtained." Id. Given that instruction, the Court will deny the motion to dismiss for
insufficient service of process.
Pursuant to Fed. R. Civ. P. 4(d), Defendants were required to waive service.
They have taken the position that they will not waive service despite the fact that Rule
4(d) affirmatively imposes the "duty to avoid unnecessary expenses of serving the
summons" upon the defendants. Id. If defendant "fails, without good cause, to sign and
return [the] waiver" requested by plaintiff within a "reasonable time," the court "must
impose on [defendant]": (A) the "expenses later incurred in making service"; and (B) the
"reasonable expenses, including attorney's fees, of any motion required to collect those
service expenses." See Fed. R. Civ. P. 4(d)(1)(F), 4(d)(2)(A), 4(d)(2)(B). In light of the
foregoing, Plaintiff will be given another opportunity to personally serve Defendants
(with the exception of Ms. Callahan who is not identified as a Connections' employee).
Also, given Defendants' position on waiver of service of summons under Fed. R. Civ. P.
4(d) in the first instance, each served defendant will be assessed service fees as
allowed by the Federal Rules of Civil Procedure.
Finally, the Court has a responsibility to assist prose plaintiffs in the service of
process. See Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010). This Court has
entered orders to assist pro se plaintiffs in obtaining addresses of defendants so that

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service may be effected. See also In re Johnson, 2001 WL 1286254 (D.C. Cir. Sept.
28, 2001) (district court ordered individual to indicate where and when he was available
for service of process or to provide district court with name and address of individual
authorized to accept service of process on his behalf); Palmer v. Stewart, 2003 WL
21279440 (S.D.N.Y June 4, 2003) (court ordered counsel for New York City to file an
affidavit containing name and address to assist prose plaintiff in service of process);
Garrett

v.

Miller, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003) (counsel for defendants

ordered to provide address to court to assist pro se plaintiff in obtaining service of
process). Additionally, the Court's inherent power allows it to enter orders to manage its
own affairs "so as to achieve the orderly and expeditious disposition of cases." Hritz v.
Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 629-31 (1962)). Without the correct address, Plaintiff cannot effect service.
Therefore, the Court will order Connections (who has appeared through counsel)
to provide to the Court, under seal, the last known home and business addresses for Dr.
David M. August, Dr. Michelle Markantun, and Dr. Mark Richardson, whether they
remain employed by Connections, and if known, the correctional facility where they are
now located, so that they may be served.
Plaintiff recently filed a letter/motion for issuance of subpoena for prison records.

(0.1. 35). The letter/motion will be denied without prejudice as premature given that the
parties have not yet been properly served.

CONCLUSION
Based upon the above discussion, the Court will: (1) deny Defendants' motion to

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dismiss (0.1. 29); (2) dismiss Ms. Callahan; (3) enter a supplemental service order for
Connections; (4) order Connections to provide the last known address for the individual
medical defendants so that they may be served; and (5) deny without prejudice as
premature Plaintiff's letter/motion for issuance of subpoenas (0.1. 35).
An appropriate order will be entered

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