Levesque v. State of New Hampshire, et al

Filing 88

ORDER denying 37 Motion to Dismiss. The Clerk's Office is directed to complete summons forms and issue the summons and copies of the documents as outlined to the U.S. Marshal's Office as described in this Order. The U.S. Marshal's Office is directed to make service on Dr. John Eppolito as described in this Order. So Ordered by Judge Joseph N. Laplante. (jb)

Levesque v. State of New Hampshire, et al

Doc. 88

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Andre R. Levesque v. Rutland County Sheriff's Department et al. ORDER Before the Court is a Motion to Dismiss (doc. no. 37), filed by defendant Dr. John Eppolito. Dr. Eppolito argues that he Civil No. 09-cv-437-JL

should be dismissed from this action as a defendant because: (1) he has not been properly served; and (2) plaintiff did not expressly name him as a defendant in the complaint. reasons set forth herein, the motion is denied. For the

Background Plaintiff has filed numerous civil actions in this Court. All of the actions filed have undergone preliminary screening pursuant to 28 U.S.C. § 1915A and United States District Court for the District of New Hampshire Local Rule ("LR") 4.3(d)(2). All of Levesque's cognizable claims have been consolidated into the above-captioned action. Among the claims remaining in the

action are claims against Dr. John Eppolito, a physician at the

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New Hampshire State Prison ("NHSP"), alleging inadequate medical care for: (1) failing to adequately examine Levesque; and (2)

failing to adequately treat Levesque's skin condition, in violation of Levesque's Fourteenth Amendment right to receive adequate medical care while he was a pretrial detainee at the NHSP.

Discussion I. Service of Process Dr. Eppolito files this Motion to Dismiss (doc. no. 37). First, Dr. Eppolito argues that he should be dismissed from this matter as he has not been sufficiently served. In an Order

issued May 12, 2010, the Magistrate Judge directed the United States Marshal for the District of New Hampshire ("U.S. Marshal's Office") to serve Dr. Eppolito. Dr. Eppolito asserts that the

U.S. Marshal's Office served an employee of the New Hampshire State Prison. Dr. Eppolito is not a prison employee, but an

employee of MHM Services, Inc., a private entity that contracts with the state to provide medical services at the New Hampshire State Prison. Fed. R. Civ. P. 4(e) authorizes service upon an individual within a judicial district of the United States to be made by: (1) following state law for serving a summons; (2) delivering a 2

copy of the summons and complaint to the individual personally; (3) leaving a copy of the summons and complaint at the individual's place of abode with someone of suitable age; or (4) delivering a copy of the summons and complaint to someone authorized to receive service on the individual's behalf. R. Civ. P. 4(e). in this case. Fed.

None of these means of service were satisfied

Service is not sufficient if left at an

individual's place of employment with someone not authorized to accept service on the individual's behalf, as was the case here. The appropriate remedy for this error in service, however, is not to dismiss the action against Dr. Eppolito. Instead, the

Clerk's Office is directed to complete a summons form for Dr. Eppolito utilizing the following address1: Dr. John A. Eppolito Cottage Hospital Walk-In Clinic 90 Swiftwater Road Woodsville, New Hampshire Once the summons is completed, the Clerk's Office shall issue the summons against Dr. Eppolito and forward the summons and copies of the complaint in this matter (doc. nos. 1, 5, 7, 10 & 13), the

Should service not be possible at this address, Levesque may have to obtain Dr. Eppolito's home address during the discovery process, and request that service be made at that address. Of course, nothing in this Order prevents Dr. Eppolito from accepting service through his attorney or agent, or otherwise waiving formal service in accordance with Fed. R. Civ. P. 4 if he so chooses. 3

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Order and Report and Recommendation issued May 12, 2010 (doc. nos. 21 & 22), and the Orders issued May 17 and May 19, 2010 (doc. nos. 23 & 24) to the U.S. Marshal's Office to be served in accordance with Fed. R. Civ. P. 4(e). 4(c)(2). See Fed. R. Civ. P.

Dr. Eppolito is instructed to answer or otherwise plead See Fed. R. Civ. P. 12(a)(1)(A).

within twenty days of service.

II.

Failure to Expressly Name Dr. Eppolito as a Defendant Dr. Eppolito next argues that none of Levesque's pleadings

expressly identified Dr. Eppolito as a defendant, and that the Magistrate Judge issuing the Report and Recommendation identifying the claims raised in the action should not have identified Dr. Eppolito as a defendant where Levesque did not. Dr. Eppolito asserts that absent an express adoption of Dr. Eppolito as a defendant to this matter by Levesque, the action should not be construed to so include Dr. Eppolito. Generally, "the title of the action shall include the names of all the parties." Fed. R. Civ. P. 10(a). However, "in a pro

se case when the plaintiff names the wrong defendant in the caption or when the identity of the defendants is unclear from the caption, courts may look to the body of the complaint to determine who the intended and proper defendants are." Trackwell

v. U.S. Gov't, 472 F.3d 1242, 1243-44 (10th Cir. 2007); see also 4

Howe v. Polunsky Unit, 346 Fed. Appx. 981, 981 (5th Cir. 2009) ("A pro se prisoner's failure to name any legal entity as a defendant does not warrant dismissal of the complaint when it is clear from his complaint that there is a potential ground for relief."); Glick v. Walker, 272 Fed. Appx. 514, 520 (7th Cir. 2008) (declining to uphold dismissal of pro se prisoner complaint for failure to name proper defendant where allegations otherwise state a claim). In the narrative of his pleadings, Levesque explicitly named Dr. Eppolito as the individual who inadequately examined Levesque at the Secure Psychiatric Unit of the New Hampshire State Prison, failed to examine or even discuss Levesque's disabling skin condition, and failed to provide any care or treatment for that condition. Levesque also stated that he filed administrative

grievances expressly naming Dr. Eppolito and describing the alleged inadequacies in the care provided to him by Dr. Eppolito. The Magistrate Judge, after evaluating Levesque's factual allegations, construed the complaint to have intended to name Dr. Eppolito as a defendant, despite the apparently inadvertent omission of Dr. Eppolito's name from the caption of any of the initial pleadings. The Magistrate Judge was not wrong to do so.

See Trackwell, 472 F.3d at 1243-44.

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Dr. Eppolito further argues that Levesque may have made a conscious decision not to include Dr. Eppolito as a defendant in this matter, and for that reason, Levesque should be required to expressly adopt the Magistrate Judge's inclusion of Dr. Eppolito as a defendant. instructed that: The claims, as identifed herein, will be be considered to be the claims raised by Levesque . . . for all purposes. If Levesque disagrees with the identification of the claims herein, he must do so by properly objecting to this Report and Recommendation within fourteen days of its issuance, or by properly moving to amend his complaint. Report and Recommendation (doc. no. 21) at *40 n.19 (emphasis added). Accordingly, by failing to object to the inclusion of The Magistrate Judge's Report and Recommendation

claims against Dr. Eppolito, and by failing to amend his complaint to remove the claims construed against Dr. Eppolito, Levesque did express his intention to maintain those claims. Eppolito was properly named as a defendant to this action. Dr.

Conclusion For the foregoing reasons, the Motion to Dismiss filed by Dr. Eppolito (doc. no. 37) is DENIED. The Clerk's Office is

directed to complete summons forms and issue the summons and 6

copies of the documents outlined above to the U.S. Marshal's Office as described in this Order. The U.S. Marshal's Office is

directed to make service on Dr. John Eppolito as described in this Order.

SO ORDERED. ____________________________________ Joseph N. Laplante United States District Judge Date: cc: December 1, 2010

Andre Levesque, pro se Corey N. Belobrow, Esq. Martin P. Honigberg, Esq. Rose Marie Joly, Esq. Michael A. Pignatelli, Esq. Nancy J. Smith, Esq.

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