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
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