Jones v. Shearin et al
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 7/6/2017. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
Civil Action No. DKC 15-0491
WARDEN BOBBY P. SHEARIN, et al.
Presently pending and ready for resolution in this civil
rights case is the motion to dismiss or, in the alternative, for
summary judgment filed by Defendant Amy Conner (“Defendant”).1
(ECF No. 42).
The issues have been briefed, and the court now
rules, no hearing being deemed necessary.
Local Rule 105.6.
For the following reasons, Defendant’s motion will be granted.
reassigned from the D-wing housing unit #2 to the B-wing housing
(ECF No. 1 ¶¶ 3, 8-9).
Defendant, a correctional
“Correctional Officer Connors.” (ECF No. 1 ¶ 5).
Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
officer, assigned Plaintiff to the top bunk of cell #19 in the
explaining to Defendant that “being placed on the top bunk
would place him in danger due to his serious medical condition.
Plaintiff simply ask[ed] permission to take the bottom bunk to
avoid being injured if he became ill from a seizure.”
Plaintiff also showed Defendant his I.D. card, which
“clearly indicated ‘seizure patient.’”
(Id. ¶ 13).
examined the I.D. card, but again ordered Plaintiff to take the
top bunk, advising him that he would be subject to “disciplinary
adjustment” if he refused to comply.
took the top bunk.
(Id. ¶¶ 13-14).
(Id. ¶ 15).
On February 22, 2012, Plaintiff experienced a seizure while
asleep and fell from the top bunk to the floor.
(Id. ¶ 16).
sustained “several fractured bones in the areas of his hip and
Plaintiff underwent three surgeries and may
require further treatment as a result of this injury.
He alleges that, due to his fall, he has “suffered
(Id. ¶ 18).
Plaintiff filed this suit against Defendant and Defendants
Bobby P. Shearin, Frank B. Bishop, Jr., and Paul Pennington
(collectively “Defendants”) on February 20, 2015.
(ECF No. 1).
deliberate indifference to medical needs in violation of the
Eighth Amendment to the United States Constitution and seeks
(Id. ¶¶ 20-26).
Plaintiff alleges that “despite
potential danger by failing to take reasonable measures and not
providing a cell that would allow Plaintiff to sleep on a bottom
(Id. ¶ 23).
effected upon Defendants within 120 days after the filing of the
complaint, and he was ordered to show cause why the complaint
Fed.R.Civ.P. 4(m) and Local Rule 103.8.a. on July 8, 2015.
Plaintiff argued that good cause for the delay existed
electronic filing system (ECF No. 10), and he was granted an
Plaintiff served the State Treasurer on August 18, 2015.
Subsequently, Plaintiff was ordered to show why that
Plaintiff’s response was construed as a motion for an extension
to serve Defendants, and Plaintiff was granted another sixty
days to effect service.
(ECF No. 21).
The Maryland Office of
the Attorney General accepted service on behalf of Defendants
Shearin, Bishop, Jr., and Pennington in December 2015.
On February 19, 2016, Defendants Shearin, Bishop, Jr., and
Pennington moved to dismiss or, in the alternative, for summary
(ECF No. 25).
July 14, 2016.
Their motion to dismiss was granted on
(ECF No. 30).
At that time, the court ordered
Plaintiff to show cause as to why the complaint should not be
dismissed as to Defendant Conner pursuant to Fed.R.Civ.P. 4(m)
and Local Rule 103.8.a.
Plaintiff responded (ECF No.
31), and, on August 1, 2016, the court granted an extension of
time to serve Defendant without prejudice to her right to move
to vacate the extension as improvidently granted (ECF No. 32).
Defendant was served at North Branch on August 4, 2016.
After receiving her own extensions of time, Defendant filed
summary judgment, on October 6, 2016.
(ECF No. 42).
requests that the extension of time to effect service be vacated
and the claim dismissed.
She also moves to dismiss for failure
to state a claim or for summary judgment.
Plaintiff filed a
Service of Process
Standard of Review
Defendant requests that the extension granted to Plaintiff
to effect service be vacated and the complaint be dismissed
pursuant to Fed.R.Civ.P. 12(b)(5).
In deciding whether to grant
a Rule 12(b)(5) motion, a court may consider affidavits and
materials outside the pleadings.
See Davis v. Matroo, No. 5:13-
CV-00233-BO, 2013 WL 5309662, at *2 (E.D.N.C. Sept. 19, 2013)
Inc., 109 F.Supp. 472, 475 (D.Del. 1952)).
When a defendant
moves to dismiss for insufficient service, “the plaintiff bears
the burden of establishing the validity of service pursuant to
Prior to December 1, 2015, Rule 4(m) provided 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 that
“shows good cause for the failure” to comply with the 120-day
deadline, Rule 4(m) provides that the time for service must be
As of December 1, 2015, a defendant must be served within
90 days. Fed.R.Civ.P. 4(m).
extended for “an appropriate period.”
It is not entirely clear
whether a district court judge has the discretion to grant an
extension under Rule 4(m) unless the plaintiff shows good cause.
Mendez v. Elliot, 45 F.3d 75, 78-79 (4th Cir. 1995); see also
Smith v. Ocwen Loan Servicing LLC, No. ELH-15-00424, 2015 WL
4092452, at *3 (D.Md. July 6, 2015) (explaining that the “Fourth
Circuit appears to have clarified its position” on this issue,
and that a district court “ha[s] no discretion under Mendez to
extend the Rule 4(m) deadline, absent a showing of good cause”
(citation omitted)); Chen v. Mayor of Balt., 292 F.R.D. 288,
292-93 (D.Md. 2013) (following a “recent groundswell of cases”
F.App’x 187 (4th Cir. 2013) (per curiam).
But see United States
ex rel. Moore v. Cardinal Fin. Co., L.P., No. CCB-12-1824, 2017
WL 1165952, at *6-*7 (D.Md. Mar. 28, 2017) (noting that “[t]he
Mendez, it has endorsed both sides of the debate”).
Even if the
court has discretion to extend the period absent a showing of
good cause, however, a plaintiff who fails to meet the deadline
for service and does not move for an extension within the 120day
Mendez, 45 F.3d at 79; see also Martinez v. United
States, 578 F.App’x 192, 193-94 (4th Cir. 2014) (per curiam);
Moore, 2017 WL 1165952, at *6 n.9.
As will be seen, Plaintiff
has shown neither good cause nor excusable neglect.
before the deadline.
Chen, 292 F.R.D. at 293; Burns & Russell
Co. of Balt. v. Oldcastle, Inc., 166 F.Supp.2d 432, 439 n.9
Good cause may be found, for example, where a
defendant is evading service; where the plaintiff experienced
court staff misdirected a pro se plaintiff as to the appropriate
procedure for service; or where a plaintiff was unaware of the
defect in service until after the deadline expired.
Balt. Police Dep’t, 379 F.Supp.2d 778, 786 (D.Md. 2005).
common thread in all of these examples is the interference of
some outside factor preventing the otherwise-diligent plaintiff
from complying with the rule.
See Burns, 166 F.Supp.2d at 439
In his response to Defendant’s motion to dismiss, Plaintiff
asserts that he attempted to serve Defendant through counsel in
December 2015 by certified mail.
(See ECF Nos. 47-1, at 3; 31,
When the Attorney General did not accept service on
behalf of Defendant because Plaintiff had misspelled Defendant’s
Defendant no longer worked at North Branch.
(ECF No. 47-1, at
Plaintiff now acknowledges that this belief was mistaken,
but contends that Defendants’ actions were to blame.
that there was good cause for the extension of time to serve
Defendant because he had “incomplete identifying information.”
(ECF No. 31, at 2 n.2).
The Attorney General was not required to accept service on
F.Supp.2d at 439 n.9.
Even if the refusal to accept service
reasonably diligent efforts to effect timely service.
has put forward no evidence of any attempt to serve Defendant in
the seven months between the Attorney General’s acceptance of
court’s show cause order on July 14, 2016 (ECF No. 30).
Plaintiff notes, “[u]pon further investigation, Plaintiff was
able to locate and positively identify defendant Officer Amy
Although not raised in his opposition to the motion to
dismiss, Plaintiff asserted in his response to the order to show
cause that North Branch officials had “intercepted, confiscated
and destroyed” legal documents that “would have revealed
Defendant Conner’s identity.”
(ECF No. 31, at 1 n.1, 2 n.2).
There is no evidence to support this contention, and it is
undisputed that Plaintiff has not been incarcerated at North
Branch since February 21, 2014 (see ECF No. 42-3, at 32-34),
nearly a year before this case was filed.
Conner and serve her with a summons and complaint via private
(ECF No. 47-1, at 3).
It appears that Plaintiff
did not undertake this investigation until July 22, 2016 (see
ECF No. 31-1), after the court issued the show cause order, and
Plaintiff offers no explanation for his delay in doing so.
has also not shown that he made any attempt to serve Defendant
at North Branch prior to August 4, 2016-nearly eighteen months,
submitted a declaration in support of her motion stating that
she has been continuously employed at North Branch since 2009
and has made no effort to avoid service.
(ECF No. 42-6 ¶ 5).
She declares that she first became aware that service of process
was desired on August 4, 2016, when she was contacted at North
Branch while on duty, and she voluntarily accepted service at
Plaintiff has not shown that he undertook reasonable and
diligent efforts to effect service.
He bears the burden of
showing good cause, and has not done so here.
discretion to grant an extension absent a showing of good cause,
it “would still need to have some reasoned basis to exercise its
discretion and excuse the untimely service: the Court must give
some import to the rule.”
Hoffman, 379 F.Supp.2d at 786.
plaintiff “‘made no effort’ to effect service by the deadline”
or “offers no explanation for his failure,” there is no such
“reasoned basis” for the court to exercise any discretion it may
Moore, 2017 WL 1165952, at *8 (quoting Lehner v. CVS
Pharmacy, No. RWT 08cv1170, 2010 WL 610755, at *3 (D.Md. Feb.
attempt to effect service prior to the deadline and has offered
unnecessary, there is no reasoned basis for the court to excuse
the untimely service.
Moreover, Plaintiff did not request an extension until well
after the time period expired and he has not shown excusable
See Fed.R.Civ.P. 6(b)(1)(B) (“When an act may or must
be done within a specified time, the court may, for good cause,
extend the time on motion made after the time has expired if the
party failed to act because of excusable neglect.”); see also
Martinez v. United States, No. DKC-13-0237, 2013 WL 6858860, at
*2 (D.Md. Dec. 26, 2013), aff’d, 578 F. App’x 192 (4th Cir. 2014)
“‘Excusable neglect’ is not easily demonstrated,”
Thompson v. E.I. DuPont de Nemours & Co., Inc., 76 F.3d 530, 533
(4th Cir. 1996), and “a party that fails to act with diligence
excusable neglect,” Martinez, 578 F.App’x at 194 (alteration in
original) (quoting Robinson v. Wix Filtration Corp., LLC, 599
F.3d 403, 413 (4th Cir. 2010)).
The 120-day time period for
Plaintiff’s second motion for an extension of time, the court
provided Plaintiff with 60 days from November 24, 2015, until
January 23, 2016, to serve Defendants.
(ECF No. 21).
directed him to show good cause why the complaint should not be
dismissed on July 14, 2016, and he has offered no explanation
Plaintiff has not shown good cause for an extension of time
or that his conduct constituted excusable neglect.
improvidently granted, and Plaintiff’s claim will be dismissed
pursuant to Rule 12(b)(5).
service of process will be vacated and Defendant’s motion to
dismiss will be granted.
A separate order will follow.
DEBORAH K. CHASANOW
United States District Judge
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