Jones v. Shearin et al

Filing 48

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
:
THOMAS JONES
:
v.

:

Civil Action No. DKC 15-0491

:
WARDEN BOBBY P. SHEARIN, et al.
:
MEMORANDUM OPINION
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.
I.

Background
A.

Factual Background2

In

early

(“Plaintiff”),
Institution

February
an

(“North

2012,

inmate
Branch”)

at
in

Plaintiff
North

Branch

Cumberland,

Thomas

Jones

Correctional
Maryland,

was

reassigned from the D-wing housing unit #2 to the B-wing housing
unit #2.

1

(ECF No. 1 ¶¶ 3, 8-9).

Defendant, a correctional

Ms.
Conner
was
identified
in
the
“Correctional Officer Connors.” (ECF No. 1 ¶ 5).
2

complaint

as

Unless otherwise noted, the facts outlined here are set
forth in the complaint and construed in the light most favorable
to Plaintiff.

officer, assigned Plaintiff to the top bunk of cell #19 in the
B-wing.

(Id.

¶ 11).

Plaintiff

requested

the

bottom

bunk,

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.”
¶ 12).

(Id.

Plaintiff also showed Defendant his I.D. card, which

“clearly indicated ‘seizure patient.’”

(Id. ¶ 13).

Defendant

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).

Plaintiff

(Id. ¶ 15).

On February 22, 2012, Plaintiff experienced a seizure while
asleep and fell from the top bunk to the floor.

(Id. ¶ 16).

He

sustained “several fractured bones in the areas of his hip and
face.”

(Id.).

Plaintiff underwent three surgeries and may

require further treatment as a result of this injury.
¶ 17).
severe

(Id.

He alleges that, due to his fall, he has “suffered
physical

pain,

disfigurement,

and

emotional

pain[.]”

(Id. ¶ 18).
B.

Procedural Background

Plaintiff filed this suit against Defendant and Defendants
Bobby P. Shearin, Frank B. Bishop, Jr., and Paul Pennington
(collectively “Defendants”) on February 20, 2015.
2

(ECF No. 1).

Plaintiff

asserts

one

claim

under

42

U.S.C.

§ 1983

for

deliberate indifference to medical needs in violation of the
Eighth Amendment to the United States Constitution and seeks
money damages.
having

full

Defendants

(Id. ¶¶ 20-26).

knowledge
were

of

Plaintiff alleges that “despite

Plaintiff’s

deliberately

illness

indifferent

and

and/or

disease,

disregarded

the

potential danger by failing to take reasonable measures and not
providing a cell that would allow Plaintiff to sleep on a bottom
bunk.”

(Id. ¶ 23).

Plaintiff

did

not

notify

the

court

that

service

was

effected upon Defendants within 120 days after the filing of the
complaint, and he was ordered to show cause why the complaint
should

not

be

dismissed

without

prejudice

pursuant

Fed.R.Civ.P. 4(m) and Local Rule 103.8.a. on July 8, 2015.
No. 9).
because

to
(ECF

Plaintiff argued that good cause for the delay existed
Plaintiff’s

counsel

had

difficulty

with

the

court’s

electronic filing system (ECF No. 10), and he was granted an
extension

until

August

24

to

effect

service

(ECF

No.

Plaintiff served the State Treasurer on August 18, 2015.

11).
(ECF

No. 18).

Subsequently, Plaintiff was ordered to show why that

“service”

constituted

service

on

Defendants.

(ECF

No.

19).

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).
3

The Maryland Office of

the Attorney General accepted service on behalf of Defendants
Shearin, Bishop, Jr., and Pennington in December 2015.

(See ECF

No. 22).
On February 19, 2016, Defendants Shearin, Bishop, Jr., and
Pennington moved to dismiss or, in the alternative, for summary
judgment.

(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.

(Id.).

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.

(ECF

No. 33).
After receiving her own extensions of time, Defendant filed
the

instant

motion

to

dismiss

or,

in

summary judgment, on October 6, 2016.

the

alternative,

(ECF No. 42).

for

Defendant

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.
response

in

opposition

(ECF

No.

reply.

4

47),

and

Plaintiff filed a
Defendant

did

not

II.

Service of Process
A.

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)
(citing

Dimet

Proprietary,

Ltd.

v.

Indus.

Metal

Inc., 109 F.Supp. 472, 475 (D.Del. 1952)).

Protectives,

When a defendant

moves to dismiss for insufficient service, “the plaintiff bears
the burden of establishing the validity of service pursuant to
Rule

4.”

O’Meara

v.

Waters,

464

F.Supp.2d

474,

476

(D.Md.

2006).
B.

Analysis

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
defendant
time.”

or

order

that

Fed.R.Civ.P.

4(m)

service

be

(2015).3

made

within

However,

if

a

specified

a

plaintiff

“shows good cause for the failure” to comply with the 120-day
deadline, Rule 4(m) provides that the time for service must be
3

As of December 1, 2015, a defendant must be served within
90 days. Fed.R.Civ.P. 4(m).
5

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”
in

applying

the

Mendez

good

cause

requirement),

F.App’x 187 (4th Cir. 2013) (per curiam).

aff’d,

546

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
Fourth

Circuit

opinion

since

has

not

Mendez”

clarified
and

“[i]n

the

matter

unpublished

in

a

published

opinions

Mendez, it has endorsed both sides of the debate”).

since

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

period

cause.

must

show

excusable

neglect

in

addition

to

good

Mendez, 45 F.3d at 79; see also Martinez v. United

States, 578 F.App’x 192, 193-94 (4th Cir. 2014) (per curiam);
6

Moore, 2017 WL 1165952, at *6 n.9.

As will be seen, Plaintiff

has shown neither good cause nor excusable neglect.
To

establish

reasonable

and

good

diligent

before the deadline.

cause,

the

efforts

plaintiff

were

made

must

to

show

effect

that

service

Chen, 292 F.R.D. at 293; Burns & Russell

Co. of Balt. v. Oldcastle, Inc., 166 F.Supp.2d 432, 439 n.9
(D.Md. 2001).

Good cause may be found, for example, where a

defendant is evading service; where the plaintiff experienced
difficulty

in

obtaining

a

defendant’s

proper

address;

where

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.

Hoffman v.

Balt. Police Dep’t, 379 F.Supp.2d 778, 786 (D.Md. 2005).

The

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

n.9.
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.
at 2).

(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
name

in

the

complaint,

Plaintiff

was

led

Defendant no longer worked at North Branch.
7

to

believe

that

(ECF No. 47-1, at

3).

Plaintiff now acknowledges that this belief was mistaken,

but contends that Defendants’ actions were to blame.

He argues

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
behalf

of

Defendant,

interference
complying

of

with”

and

some
the

Plaintiff

outside
time

has

factor

limits

for

not

shown

prevented

that

“the

[him]

from

service.4

Burns,

166

F.Supp.2d at 439 n.9.

Even if the refusal to accept service

constituted

misleading

Defendant,

evasive
see

id.,

or

Plaintiff

has

conduct
not

on

shown

behalf
that

reasonably diligent efforts to effect timely service.

of
he

the
made

Plaintiff

has put forward no evidence of any attempt to serve Defendant in
the seven months between the Attorney General’s acceptance of
service

for

the

other

defendants

in

December

2015

and

the

court’s show cause order on July 14, 2016 (ECF No. 30).

As

Plaintiff notes, “[u]pon further investigation, Plaintiff was
able to locate and positively identify defendant Officer Amy
4

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.
8

Conner and serve her with a summons and complaint via private
processor.”

(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.

He

has also not shown that he made any attempt to serve Defendant
at North Branch prior to August 4, 2016-nearly eighteen months,
or

531

days,

after

the

filing

of

his

complaint.

Defendant

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
that time.

(Id.).

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.
that

Mendez

is

no

longer

good

law

and

the

Even assuming
court

has

the

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.

If a

plaintiff “‘made no effort’ to effect service by the deadline”
9

or “offers no explanation for his failure,” there is no such
“reasoned basis” for the court to exercise any discretion it may
have.

Moore, 2017 WL 1165952, at *8 (quoting Lehner v. CVS

Pharmacy, No. RWT 08cv1170, 2010 WL 610755, at *3 (D.Md. Feb.
17,

2010)).

Here,

Plaintiff

appears

to

have

made

only

one

attempt to effect service prior to the deadline and has offered
no

explanation.

Even

if

a

showing

of

good

cause

were

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
neglect.

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)
(per curiam).

“‘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
will

be

unable

to

establish

that

[her]

conduct

constituted

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)).
10

The 120-day time period for

effecting

service

expired

on

June

20,

2015.

In

granting

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.
did

not

request

a

third

extension

(ECF No. 21).
of

time

Plaintiff

until

the

court

directed him to show good cause why the complaint should not be
dismissed on July 14, 2016, and he has offered no explanation
for

his

failure

to

obtain

an

Plaintiff

has

not

shown

therefore

has

not

established

extension

that

he

acted

that

his

during
with

that

time.

diligence

conduct

and

constituted

excusable neglect.
Plaintiff has not shown good cause for an extension of time
or that his conduct constituted excusable neglect.
the

extension

of

time

to

serve

summons

will

Accordingly,

be

vacated

as

improvidently granted, and Plaintiff’s claim will be dismissed
pursuant to Rule 12(b)(5).
III. Conclusion
For

the

foregoing

reasons,

the

extension

of

time

for

service of process will be vacated and Defendant’s motion to
dismiss will be granted.

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

11