Brown v. Department of Health and Human Services et al

Filing 35

MEMORANDUM AND ORDER that the Motion to Dismiss (Filing 23 ) Plaintiff's only remaining 42 U.S.C. § 1983 claim against the Nebraska Department of Health and Human Services for prospective injunctive relief is GRANTED pursuant to Fed. R. C iv. P. 12(b)(6), and defendant Nebraska Department of Health and Human Services is dismissed from this case. The Motion to Dismiss (Filing 25 ) defendant Courtney Philips in her official capacity for improper service pursuant to Fed. R. Civ. P. 12(b)(4) and (5) is DENIED. Pursuant to Fed. R. Civ. P. 4(m), the time in which Plaintiff may serve defendant Courtney Philips in her official capacity with process is extended. For service of process on defendant Courtney Philips in her official capacity, the Clerk of the Court is directed to complete a summons form and a USM-285 form for defendant Courtney Philips using the address "Office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509," and forward th em together with a copy of the Complaint (Filing 1 ), the Supplemental Complaint (Filing [1-1]), the court's order on initial review (Filing 8 ), and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service shall se rve defendant Courtney Philips in her official capacity at the office of the Nebraska Attorney General, 2115 State Capitol, Lincoln, NE 68509. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev. Stat. § 25-510.02 (Reissue 2016). The United S tates Marshal shall serve all process in this case without prepayment of fees from Plaintiff. Plaintiff's motion (Filing 29 ) for an extension of time in which to respond to Defendants' discovery requests is GRANTED, and Plaintiff need n ot respond to any discovery requests issued prior to the court's progression order, which will be entered after all defendants have answered. Plaintiff's motion for protective order (Filing 33 ) is DENIED as moot. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party and as directed)(LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CORNELIUS BROWN,
Plaintiff,
v.
DEPARTMENT OF HEALTH AND
HUMAN SERVICES, COURTNEY
PHILIPS, Director, SHANNON
BLACK, Program Director, KYLE
MALONE, SOS Team Leader,
WILLIAM BECKER, Program
Therapist, CINDY DYKEMAN,
Program Manager, and LISA
LAURELL, Program Social Worker,
et al.,
Defendants.

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8:16CV377

MEMORANDUM
AND ORDER

After initial review of Plaintiff’s pro se complaints alleging that the defendants
treated her unfavorably because she is transgender, this court ordered that Plaintiff’s
42 U.S.C. § 1983 claims for denial of equal protection and due process and First
Amendment retaliation could proceed to service of process as to various defendants.
(Filing 8.) Two of the defendants have filed motions to dismiss (Filings 23, 25), and
Plaintiff has filed a motion for extension of time (Filing 29) and a motion for
protective order (Filing 33).
Motion to Dismiss DHHS (Filing 23)
The defendants first move to dismiss Plaintiff’s only remaining claim against
the Nebraska Department of Health and Human Services (“DHHS”), a state agency,
for prospective injunctive relief pursuant to Fed. R. Civ. P. 12(b)(6). This motion will

be granted. See Brown v. Missouri Dep’t of Corr., 353 F.3d 1038, 1041 (8th Cir.
2004) (Missouri Department of Corrections was not proper party under 42 U.S.C. §
1983); Graves v. Stone, 25 F. App’x 488, 490, 2002 WL 62995, at *1 (8th Cir. 2002)
(“the Eleventh Amendment bars any suit brought in federal court by an individual
against a state or its agencies, regardless of the nature of the relief sought”; rejecting
argument that Ex Parte Young exception allowing § 1983 suits for injunctive relief
against state officials sued in their official capacities makes a state agency a proper
defendant).
Motion to Dismiss Defendant Philips in Official Capacity (Filing 25)
After initial review of Plaintiff’s complaints, this court directed Plaintiff that
copies of a summons and complaint must be served on “the Nebraska Attorney
General’s Office or the chief executive officer for the State of Nebraska as to
defendant[] . . . Philips in her official capacity.” (Filing 8 at CM/ECF p. 16.) See Fed.
R. Civ. P. 4(j)(2) (service on state must be accomplished by “delivering a copy of the
summons and of the complaint to its chief executive officer” or “serving a copy of
each in the manner prescribed by that state’s law for serving a summons or like
process on such a defendant”); Neb. Rev. Stat. § 25-510.02 (Westlaw 2017)
(employees of state sued in their official capacity may be served “by leaving the
summons at the office of the Attorney General with the Attorney General, deputy
attorney general, or someone designated in writing by the Attorney General, or by
certified mail or designated delivery service addressed to the office of the Attorney
General.”)
The proof of service for Courtney Philips in her official capacity indicates that
the U.S. Marshals Service completed personal service upon her on December 6, 2016,
at “301 Centennial Mall South Lincoln, NE 68508,” which was the address provided
by Plaintiff on the USM-285 form, but is not the address of the Nebraska Attorney
General. (Filing 12 at CM/ECF pp. 5-6.) On December 22, 2016, Assistant Attorney
General Ryan Gilbride filed a motion for an enlargement of time in which to answer
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or otherwise plead on behalf of the defendants, including Courtney Phillips “in her
official and individual capacities.” (Filing 15.) However, on January 23, 2017,
Gilbride filed an answer on behalf of defendant Courtney Phillips in her individual
capacity only and also filed a motion to dismiss Philips in her official capacity based
on improper service of process pursuant to Fed. R. Civ. P. 12(b)(4) and (5). (Filings
21, 25.)
Defendant Philips in her official capacity now moves to dismiss Plaintiff’s
claims against her for improper service of process under Fed. R. Civ. P. 12(b)(4) and
(5) because Plaintiff served Philips in her official capacity at the wrong address.
(Filing 25.) Plaintiff has responded to Philips’ motion, stating that the Lincoln
Regional Center gave Plaintiff and other patients the address for the Nebraska
Department of Health and Human Services (301 Centennial Mall South, Lincoln, NE
68508) for “submitting complaints.” (Filing 32 at CM/ECF pp. 4, 10.)
Although a defect in service may result in the dismissal of the
improperly served person, a court has broad remedial power to correct
the service, especially where justice demands and prejudice would not
result to the improperly served parties. Haley v. Simmons, 529 F.2d 78,
79 (8th Cir. 1976). One of the remedial options is the quashing of service
but retention of the case so that service may be effected in accord with
the Rules. C & L Farms, Inc. v. Federal Crop Ins. Corp., 771 F.2d 407,
409 (8th Cir. 1985); Haley, 529 F.2d at 79. Moreover, a motion to
dismiss for insufficiency of service may be denied where there has been
substantial compliance with Rule 4, the mistake was innocent, and the
defendant was not prejudiced. See, e.g., Gray v. Allied Waste Servs. of
Washington, 2012 WL 2871422, *4 (D. Md. 2012) (“Because Plaintiff
is pro se and Defendant received actual notice, dismissal for ineffective
service of process is inappropriate at this stage.”); Myrtle v. Graham,
2011 WL 446397 (E.D. La. 2011) (dismissal should not result when
plaintiff made good faith attempt to comply with rules for service and
defendant did not demonstrate prejudice or lack of actual notice).

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Mendoza v. Osterberg, No. 8:13CV65, 2014 WL 3784122, at *3 (D. Neb. July 31,
2014).
Here, Philips has not demonstrated that she lacks notice of Plaintiff’s claims or
that the improper service has caused her prejudice. Further, it is evident that
Plaintiff—despite her pro se status—successfully served the other defendants,
suggesting that Plaintiff’s error in serving Philips in her official capacity was an
innocent mistake that was compounded by her institution providing Plaintiff with an
address that was perhaps appropriate for other purposes, but not for properly serving
process in this lawsuit.
Accordingly, for good cause shown, the court will deny Philips’ motion to
dismiss and will extend the time in which process may be served upon defendant
Courtney Philips in her official capacity. See Fed. R. Civ. P. 4(m) (“[I]f the plaintiff
shows good cause for the failure [to serve], the court must extend the time for service
for an appropriate period.”); Weller v. Cass Cty. Prosecutor’s Office, No.
05-0042-CV-W-FJG, 2005 WL 2090788, at *4 (W.D. Mo. Aug. 30, 2005) (giving
plaintiff additional time to complete service when plaintiff was proceeding pro se and
had “at least made an effort to complete service” upon defendant); Dahl v. Kanawha
Inv. Holding Co., 161 F.R.D. 673, 681 (N.D. Iowa 1995) (generally, when court finds
service insufficient but curable, it should quash service and give plaintiff opportunity
to re-serve defendant, but dismissal may be proper without opportunity to cure where
proper service would be futile); In re Hollis & Co., 86 B.R. 152, 154 (Bankr. E.D.
Ark. 1988) (denying defendant’s motion to dismiss party for improper service in part
because the “[m]otions for extensions of time to file preliminary motions [made it]
reasonable for Plaintiff to believe that service had been accomplished”; noting that
dismissal is not required when service is ineffective—rather, court has discretion to
dismiss or quash service but retain case).

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Motion for Extension of Time to Respond to Interrogatories (Filing 29)
Plaintiff moves for an unspecified amount of additional time to respond to
Defendants’ first set of interrogatories which were allegedly sent to Plaintiff along
with the motions to dismiss discussed above. (Filing 29.) Defendants’ counsel has
filed an affidavit confirming that he propounded Defendants’ first set of
interrogatories and requests for production of documents upon Plaintiff on January 23,
2017, and that Defendants agreed to extend the time for Plaintiff to respond to the
discovery requests until March 23, 2017. (Filing 34-1, Aff. Ryan Gilbride.)
General Order No. 2016-02 of this court provides that “the court will issue a
progression order, addressing discovery and other issues, approximately thirty days
after the last defendant has answered. No discovery in prose civil cases assigned to a
district judge may take place until a progression order is entered unless the court[]
orders otherwise. Requests to engage in discovery before the court enters the
progression order must be made by motion.” (Emphasis added.)
Because the defendants should not have served any discovery requests until the
progression order was entered, Plaintiff’s motion (Filing 29) for an extension of time
in which to respond to those requests will be granted, and Plaintiff need not respond
to any discovery requests issued prior to the court’s progression order, which has yet
to be entered.
Motion for Protective Order (Filing 33)
Finally, Plaintiff has filed a motion for protective order “to answering
interrogatory questions received January 23, 2017.” (Filing 33.) Because this request
duplicates Plaintiff’s motion for an extension of time, considered above, this motion
will be denied as moot.

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IT IS ORDERED:
1.
The Motion to Dismiss (Filing 23) Plaintiff’s only remaining 42 U.S.C.
§ 1983 claim against the Nebraska Department of Health and Human Services for
prospective injunctive relief is GRANTED pursuant to Fed. R. Civ. P. 12(b)(6), and
defendant Nebraska Department of Health and Human Services is dismissed from this
case.
2.
The Motion to Dismiss (Filing 25) defendant Courtney Philips in her
official capacity for improper service pursuant to Fed. R. Civ. P. 12(b)(4) and (5) is
DENIED.
3.
Pursuant to Fed. R. Civ. P. 4(m), the time in which Plaintiff may serve
defendant Courtney Philips in her official capacity with process is extended. For
service of process on defendant Courtney Philips in her official capacity, the Clerk of
the Court is directed to complete a summons form and a USM-285 form for defendant
Courtney Philips using the address “Office of the Nebraska Attorney General, 2115
State Capitol, Lincoln, NE 68509,” and forward them together with a copy of the
Complaint (Filing 1), the Supplemental Complaint (Filing 1-1), the court’s order on
initial review (Filing 8), and a copy of this Memorandum and Order to the Marshals
Service. The Marshals Service shall serve defendant Courtney Philips in her
official capacity at the office of the Nebraska Attorney General, 2115 State
Capitol, Lincoln, NE 68509. See Federal Rule of Civil Procedure 4(j)(2); Neb. Rev.
Stat. § 25-510.02 (Reissue 2016).1

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Pro se litigants proceeding in forma pauperis are entitled to rely on service by the United
States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir. 2013). Pursuant
to 28 U.S.C. § 1915(d), in an in forma pauperis case, “[t]he officers of the court shall issue and
serve all process, and perform all duties in such cases.” See Moore v. Jackson, 123 F.3d 1082,
1085 (8th Cir. 1997) (language in § 1915(d) is compulsory).
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4.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
5.
Plaintiff’s motion (Filing 29) for an extension of time in which to
respond to Defendants’ discovery requests is GRANTED, and Plaintiff need not
respond to any discovery requests issued prior to the court’s progression order, which
will be entered after all defendants have answered.
6.

Plaintiff’s motion for protective order (Filing 33) is DENIED as moot.

DATED this 27th day of April, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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