MCGILL v. MCGOVERN et al

Filing 26

OPINION fld. Signed by Judge Susan D. Wigenton on 9/2/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN W. MCGILL,

Civil Action No. 11-6710 (SDW)

Plaintiff,

September 2, 2015

v.

OPINION

JAMES MCGOVERN, et al.,
Defendants.

WIGENTON, District Judge:
This matter comes before the Court on Plaintiff John McGill’s motion for leave to amend
his complaint to add Gary Lanigan as a Defendant. (ECF No. 24). For the reasons set forth
below, this Court will grant Plaintiff’s motion for leave to amend. Because Plaintiff is a prisoner
proceeding in forma pauperis seeking relief from a state official, however, this Court is required
to screen Plaintiff’s amended complaint and determine whether it is frivolous, malicious, fails to
state a claim for which relief can be granted, or seeks damages from a defendant who is immune.
See 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. For the reasons set forth below, this Court will
dismiss Plaintiff’s amended complaint as to Gary Lanigan, and will dismiss Plaintiff’s claims
against Defendant McGovern for failure to timely serve the complaint.

I. BACKGROUND
Plaintiff filed his initial complaint in this matter on or about November 14, 2011. (ECF
No. 1). This Court dismissed Plaintiff’s complaint without prejudice on May 22, 2012. (ECF
No. 5, 6). Following a motion to reopen, this Court eventually reopened this matter on April 22,
2013. (ECF No. 17). This Court dismissed the Department of Corrections with prejudice, but

1

permitted Plaintiff’s claims to proceed against Defendant James McGovern only at that time.
(ECF No. 17). Plaintiff attempted to serve McGovern only once, with the summons returned
unexecuted on August 27, 2013, as McGovern had retired and could not be located. (ECF No.
21). Plaintiff, to date, has made no further attempts to serve McGovern. On June 1, 2015, this
Court therefore ordered Plaintiff to either amend his complaint to name a new Defendant who
could be served or to serve Defendant McGovern within 45 days of the date of that order as the
time for service under Rule 4(m) had more than run. (ECF No. 23). Plaintiff was also informed
that his failure to amend his complaint or serve McGovern would result in the dismissal of his
complaint. (ECF No. 23). On July 25, 2015, some ten days after the 45 days had run, Plaintiff
submitted to this Court a motion to amend his complaint to add Gary Lanigan, the Commissioner
of the New Jersey Department of Corrections, as a Defendant. 1 (ECF No. 24). Nearly a month
later, on August 17, 2015, Plaintiff submitted another letter requesting summons be issued in an
attempt to serve McGovern at a new address. (ECF No. 25).
Alongside his motion, Plaintiff filed his purported amended complaint. The following
allegations which form the basis for Plaintiff’s claims are drawn from that amended complaint.
Plaintiff is an inmate serving a life sentence for murder, currently incarcerated at Northern State
Prison. (Document 2 attached to ECF No. 24 at 1-2). Upon his arrival at the prison, Plaintiff
was assigned a job as a paralegal in the prison’s law library. (Id. at 2). Plaintiff, allegedly with
permission from his non-prisoner supervisor, stored several of his personal files on the prison
library computers. (Id.).

1

Although this Court does not rely solely upon it, Plaintiff’s failure to timely reply to this
Court’s prior order alone merits the dismissal of his complaint.
2

On October 29, 2009, while he was working in the library, a corrections officer noted that
Plaintiff had opened on the computer, among other files, a copy of a design for the cover of a
novel he was apparently writing. (Id. at 3). The officer asked Plaintiff to explain the picture, and
Plaintiff apparently explained the image to her. (Id.). Plaintiff thereafter printed materials,
apparently consisting of paperwork related to his job in the law library. (Id. at 3-4). The officer
oversaw this printing and believed Plaintiff was printing out his own private materials. (Id. at 4).
The officer concluded from her observations that Plaintiff had broken one of the prison’s rules
by using the computers and printers for his personal files, and therefore asked library personnel
to search the computer. (Id. at 4). Upon searching the computer, several of the files Plaintiff
was allegedly permitted to keep on the computer were discovered and seized. (Id.). The officer
thereafter authored a disciplinary report for violations of rule .709 – Failure to Comply with a
Written Rule or Regulation of the Correctional Facility, 2 and .009 – misuse, possession,
distribution, sale, or intent to distribute or sell, an electronic communication device. (Id.).
Plaintiff, not believing that any such rule existed, requested that he be provided with
copies of the rule by the disciplinary sergeant. (Id.). Plaintiff’s disciplinary hearing, scheduled
for November 10, 2009, was therefore postponed allegedly so that the rule that was violated
could be identified and so certain witnesses could be present to testify. (Id. at 5). Plaintiff also
requested he be permitted to present certain physical evidence at the hearing, but that offer was
allegedly refused by McGovern on November 10, 2009. (Id.). The disciplinary hearing was
“reconvened” on November 12, 2009, and Plaintiff was informed the rules he had violated were
on pages four, five, and seven in the disciplinary handbook for inmates of the prison. (Id.).

2

According to Plaintiff, a .709 violation is a violation of the prison’s own specific policies, as
opposed to violations of the standard administrative code violations applicable to all New Jersey
inmates. (Document 2 attached to ECF No. 24 at 6).
3

Those pages, which Plaintiff incorporates and attaches to his complaint, in addition to a
definition of contraband, contain the following pertinent information:
“Electronic communication device” means a device or related
equipment or peripheral that is capable of electronically receiving,
transmitting or storing a message, image or data. Examples of
such electronic devices include, but are not limited to, all types and
sizes of a computer, telephone, two-way radio, camera or
video/audio player/record, fax machine, pager or beeper, personal
data assistant, hand held e-mail system, or any other device
containing a means of internet access or receiving, transmitting, or
storing information electronically by means of audio, visual, or
recorded data.
....
“Zero Tolerance for Misuse or Possession of an Electronic
Communication Device Policy” means a zero tolerance for the
misuse, possession, distribution, sale, or intent to distribute or sell,
an electronic communication device that is not authorized for use
or retention. This policy establishes that inmates who are found
guilty of an electronic communication device related prohibited act
as set forth in N.J.A.C. 10A:4-4.1, 5.1 and 12 shall have their
contact visit privilege terminated and shall be ineligible for
consideration for any custody status lower than medium custody
after the contact visit privileges are reinstated in addition to being
subject to administrative action and program requirements in
accordance with N.J.A.C. 10A:4, Inmate Discipline.
(Document 3 attached to ECF No. 24 at 24).
Plaintiff objected to the disciplinary hearing on November 12, 2009, arguing that these
pages do not contain a rule which he could violate, but that objection was overruled and the
hearing continued. (Document 2 attached to ECF No. 24 at 6). During the hearing, the officer
who had filed the disciplinary report apparently admitted that she had never read what Plaintiff
had printed from the computers. (Id.). Plaintiff’s supervisor from the library also testified,
allegedly stating that he had given Plaintiff permission to keep his files on the computer’s hard
drive, and that he believed Plaintiff was acting within his paralegal duties at the time of the

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alleged infraction. (Id.). Following this testimony and the other evidence submitted at the
hearing, the hearing officer, McGovern, concluded that Plaintiff was guilty of the charged
violations. 3 (Id.). McGovern therefore ordered that Plaintiff’s files be confiscated and Plaintiff
be sanctioned accordingly. (Id. at 6-7).
Plaintiff appealed the matter to the Administrator of the prison, who upheld this ruling.
(Id. at 7). Plaintiff thereafter appealed to the New Jersey Appellate Division. (Id.). While that
appeal was pending, Plaintiff also filed a Tort Claims Act Notice and a property claim with the
prison seeking return of his manuscripts which were contained in the confiscated files, or
compensation for their loss. (Id.). During the appeal process, Plaintiff received further
documents from the Attorney General, which Plaintiff alleges contain certain discrepancies as to
the persons involved in the investigation of his disciplinary actions which would suggest that
Plaintiff’s guilty finding was based upon fraudulent conduct by McGovern. 4 (Id. at 8-9).
Plaintiff also alleges that in May of 2010, the sergeant McGovern stated had provided him with
the rule Plaintiff had violated denied any knowledge of the report in which McGovern made that
statement. (Id. at 8). The New Jersey Appellate Division ultimately affirmed Plaintiff’s guilty
finding, and the New Jersey Supreme Court denied certification. (Id. at 8-9). Plaintiff alleges
that, as a result of McGovern’s actions, he lost his job as a paralegal and has otherwise suffered
harm. (Id.at 9-10).

3

It appears to this Court that the prison rule Plaintiff was found guilty of violating was the “Zero
Tolerance Policy” expressed in the quoted portion of the manual above, although Plaintiff
appears to take the position that this policy is not a prison rule.
4

Plaintiff’s chief “fraud” allegations appear to be that McGovern decided the case before one
officer’s investigation was completed, that the statement of the sergeant contradicts the report
used by McGovern, and the testimony of an officer at the hearing conflicted with her report, and
that McGovern fabricated rules which Plaintiff violated out of whole cloth. (Id. at 9-10).
5

Plaintiff’s amended complaint contains only the following allegations against proposed
Defendant Lanigan. Plaintiff alleges that “during the course of post hearing proceedings, Gary
Lanigan became the commissioner of the New Jersey Department of Corrections.” 5 (Id. at 10).
Plaintiff alleges that Lanigan therefore “obtained a supervisory position over the Department . . .
and its employees.” (Id.). Plaintiff therefore alleges that, as commissioner, Lanigan “was aware
of allegations about his underling’s misconduct” but failed to correct it after the fact and
therefore “allowed the fraud to continue[].” This allegation, however, does not appear to account
for the fact that the last of McGovern’s allegedly fraudulent behaviors occurred on November
12, 2009, with the delivery of his decision, months before Lanigan became commissioner.

II. PLAINTIFF’S MOTION TO AMEND
Plaintiff seeks to amend his complaint to add Gary Lanigan as a Defendant in this action.
Although Plaintiff makes this request for leave to amend pursuant to Federal Rule of Civil
Procedure 15(a)(2), Plaintiff has neither previously amended his complaint, nor has he perfected
service, and he is therefore instead subject to Rule 15(a)(1). Pursuant to that rule a party “may
amend its pleading once as a matter of course within . . . 21 days after serving it.” As Plaintiff
has yet to serve his complaint upon any Defendant, he is within the period during which he may
amend once as a matter of right. As Plaintiff has expressed his desire to amend his complaint to
add Lanigan as a Defendant and has submitted a proposed amended complaint, this Court will
grant Plaintiff’s motion to amend. 6

5

Publicly available documents indicate that Lanigan was confirmed as Commissioner of the
New Jersey Department of Corrections in March of 2010. See, e.g. Commissioner’s Biography,
available at http://www.state.nj.us/corrections/pages/about_us/Commissioner_bio.html.
6

Were Plaintiff’s request subject to leave of Court under Rule 15(a)(2) as Plaintiff suggests, this
Court would have denied leave to amend as Plaintiff’s amendment is futile for the reasons set
6

The more complicated question, however, is whether this amendment relates back to the
original filing of the complaint in November 2011. Pursuant to the Rule 15(c)(1), an
amendment to a pleading relates back to the date of the original
pleading when:
(A) the law that provides the applicable statute of limitations
allows relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out – or attempted to be set
out – in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by amendment:
(i) received such notice of the action that it will not be prejudiced
in defending on the merits; and
(ii) knew or should have known that the action would have been
brought against it, but for a mistake concerning the proper party’s
identity.”
Here, Plaintiff seeks to change the party against whom his claim is asserted by adding Gary
Lanigan as an additional Defendant against whom his claims are asserted. Thus, he must meet
the requirements of both Rule 15(c)(1)(B) and (C).
Even if one assumes Plaintiff meets the requirements of Rule 15(c)(1)(B), he cannot meet
the requirements of 15(c)(1)(C). To meet these requirements, a plaintiff must have provided
actual or imputed notice to the party to be added within 120 days of the filing of the action in
question. Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). Plaintiff has, as of

forth below. See, e.g., In re Merck & Co., Inc. Securities, Derivative & ERISA Litigation, 493
F.3d 393, 400 (3d Cir. 2007) (futility is sufficient ground to deny leave to amend, futility is
present where a proposed amended complaint would fail to state a claim upon which relief could
be granted).
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this time, failed to serve the sole Defendant in this matter, James McGovern, and has presented
no evidence indicating that Lanigan has received actual notice of his claims. Plaintiff must
therefore show that notice can be imputed to Lanigan in order to warrant relation back. Plaintiff
argues that Lanigan can be said to have been provided notice of his suit through one of two
means: notice via a shared attorney with an original defendant, or through sharing an identity of
interest with an originally named defendant.
“The ‘shared attorney’ method of imputing Rule [15(c)] notice is based on the notion
that, when an originally named party and the party who is sought to be added are represented by
the same attorney, the attorney is likely to have communicated to the latter party that he may
very well be joined in the action.” Singletary v. Pennsylvania Dep’t of Corr., 266 F.3d 186, 196
(3d Cir. 2001). The relevant inquiry under this method of imputing notice is “whether notice of
the institution of this action can be imputed to [the Defendant to be added] within the relevant
120 day period . . . by virtue of representation [he] shared with a defendant originally named in
the lawsuit.” Garvin, 354 F.3d at 223 (quoting Singletary, 266 F.3d at 196). For such a method
of imputation to function, there must be “some communication or relationship” between the
allegedly shared attorney and the new defendant prior to the end of the 120 day period sufficient
to establish that notice was most likely provided. Id. at 225. It is insufficient to impute notice to
argue that the same attorney (such as the attorney general) would have represented both parties
had they been served, a plaintiff must show that, during the 120 day period, the lawyer for the
previously named defendant had communication or a relationship with the newly added
defendant sufficient to impute notice. Id. at 226-27. Here, neither defendant, old or newly
named, has been served, and no attorney has made an appearance on behalf of either. Plaintiff
has provided no evidence for the supposition that the two would share an attorney other than the

8

fact that both, if they so chose, would be entitled to a defense by the New Jersey Attorney
General’s office. That is insufficient to establish a shared attorney, and likewise insufficient to
impute notice under such a theory. 7 Id.
Plaintiff’s remaining theory for imputing notice is that McGovern and Lanigan share an
identity of interest. The identity of interest theory operates under the assumption that where “the
parties are so closely related in their business operations or other activities that the institution of
an action against one serves to provide notice of the litigation to the other,” notice should be
imputed where one of those parties is served. Singletary, 266 F.3d at 197. The central
requirement for imputing notice under such a theory, however, is that the original named
defendant, in this case McGovern, received notice before the running of the limitations and 4(m)
period. Thus, even if one could say that the interests of a retired former employee and an
executive officer of his former employer are sufficiently related, a finding this Court does not
make, the failure of Plaintiff to serve McGovern clearly indicates that notice cannot be imputed
from him to Lanigan. There is, in essence, no notice to impute. As Plaintiff has failed to show
that Lanigan received notice within the 120 day period required by rule 15(c)(1)(C), his new
claims do not relate back and would therefore be subject to the statute of limitations based upon
the date of filing of the amended complaint.

7

Plaintiff’s supposition that the Attorney General’s office received notice of two of this Court’s
prior orders is likewise unavailing. The Attorney General was not served with the complaint or
Plaintiff’s claims, only with copies of this Court’s orders which directed that funds be taken from
Plaintiff’s accounts and reinstated plaintiff’s complaint. The Attorney General represents neither
purported Defendant in this matter at present, and therefore notice to the Attorney General’s
office of two orders is insufficient to provide shared attorney notice to Lanigan. Garvin, 354
F.3d at 223-27.
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III. PLAINTIFF’S AMENDED COMPLAINT
A. Legal Standard for Sua Sponte Screening
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil actions
in which the plaintiff is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B). The PLRA
directs district courts to sua sponte dismiss any claim that is frivolous, is malicious, fails to state a
claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune
from such relief. This action is subject to sua sponte screening for dismissal under 28 U.S.C. §§
1915(e)(2)(B) and 1915A as Plaintiff is proceeding in forma pauperis and is a prisoner seeking
relief from a government official.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim, 8 the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. Fowler v. UPMS
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation omitted). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster, 764
F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se

8

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
10

pleadings are liberally construed, “pro se litigants still must allege sufficient facts in their
complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).

B. Analysis
Plaintiff’s amended complaint essentially raises only one federal claim: that Defendants
denied him his Fourteenth Amendment Due Process rights through McGovern’s alleged frauds
during Plaintiff’s disciplinary hearings in violation of 42 U.S.C. § 1983. “To establish a claim
under 42 U.S.C. § 1983, a plaintiff must demonstrate a violation of a right protected by the
Constitution or laws of the United States that was committed by a person acting under the color
of state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000); see also Woodyard v. Cnty. of
Essex, 514 F. App’x 177, 180 (3d Cir. 2013) (the statute provides “private citizens with a means
to redress violations of federal law committed by state [actors]”). “The first step in evaluating a
section 1983 claim is to ‘identify the exact contours of the underlying right said to have been
violated’ and to determine ‘whether the plaintiff has alleged a deprivation of a constitutional
right at all.’” Nicini, 212 F.3d at 806 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841
n. 5 (1998)). Here, Plaintiff claims that Defendants violated his Due Process rights by
defrauding his disciplinary hearings.
In his amended complaint, Plaintiff seeks to add a § 1983 claim against Gary Lanigan
arising out of McGovern’s allegedly fraudulent disciplinary decisions. Aside from the relation
back issues discussed above, Plaintiff’s claims have two related flaws: Plaintiff has pled no
direct involvement in the decision by Lanigan (who was not appointed to the DOC until months
after McGovern’s allegedly wrongful actions), and Plaintiff’s only other claim against Lanigan

11

appears to arise under a respondeat superior theory of liability. “A defendant in a civil rights
action must have personal involvement in the alleged wrongs; liability cannot be predicated
solely on the operation of respondeat superior.” Solan v. Ranck, 326 F. App’x 97, 100 (quoting
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)); see also Iqbal, 556 U.S. at 676-77
(Government officials may not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior,” a civil rights plaintiff must plead that each
defendant “through the official’s own individual actions, has violated the constitution”); Tenon v.
Dreibelbis, 606 F. App’x 681, 688 (3d Cir. 2015) (§ 1983 claims may not be based on vicarious
liability, each defendant must have “personal involvement, including participation, or actual
knowledge and acquiescence, to be liable”). Here, Plaintiff pleads only that Lanigan became
McGovern’s superior when he was appointed and confirmed in March 2010, several months after
McGovern committed the alleged constitutional violations at issue. Lanigan thus could not have
been personally involved as he was not a part of the Department at the time of the alleged
violations. Plaintiff’s only other allegations of liability as to Lanigan is that he became
McGovern’s superior and is therefore liable for not correcting the alleged failing, essentially an
improper respondeat superior claim. As Plaintiff has failed to plead personal involvement
through any means other than respondeat superior as to Lanigan, Plaintiff has failed to plead a
cognizable claim for liability as to Lanigan, and his claims against Lanigan must therefore be
dismissed for failure to state a claim for which relief may be granted. 9 Iqbal, 556 U.S. at 676-77.

9

To the extent that Plaintiff also wished to raise common law fraud claims, he has also failed to
allege that Lanigan was in any way involved in McGovern’s alleged fraud, and has certainly not
pled that fraud as to Lanigan with the particularity required by Rule 9(b). See Frederico v. Home
Depot, 507 F.3d 188, 200 (3d Cir. 2007); District 1199P Health and Welfare Plan v. Janssen,
L.P., 784 F. Supp. 2d 508, 527 (D.N.J. 2011); see also Gennari v. Weichert Co. Realtors, 691
A.2d 350, 367-68 (N.J. 1997) (common law fraud in NJ requires showing of a material
misrepresentation of presently existing or past fact, knowledge or belief of the statements falsity,
12

Even placing personal involvement aside, because Plaintiff’s new claims do not relate
back for the reasons expressed above, Plaintiff’s § 1983 claims against Lanigan are time barred.
Actions brought pursuant to § 1983 in New Jersey are subject to a two year statute of limitations.
See Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir. 2013). “Under federal law, a cause of
action accrues, and the statute of limitations begins to run when the plaintiff knew or should have
known of the injury upon which its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009). Plaintiff alleges that he became aware of the alleged fraud in the spring of 2010. Plaintiff
did not file his amended complaint, raising his claims against Lanigan, until July 2015, more
than five years later. As such, Plaintiff’s claims against Lanigan are barred by the statute of
limitations and must be dismissed for that reason as well.

IV. PLAINTIFF’S FAILURE TO SERVE MCGOVERN
Despite the extended period of time Plaintiff has had since the reopening of his claim
against McGovern in April 2013, Plaintiff has failed to effect service upon Defendant
McGovern. Pursuant to Rule 4(m), if “service of the summons and complaint is not made upon a
defendant within 120 days after the filing of the complaint, the court, upon motion or its own
initiative after notice to the plaintiff, shall dismiss the action without prejudice as to that
defendant or direct that service be effected within a specified period of time; provided that if the

an intention the other person rely on it, and reasonable reliance thereon by the other person
resulting in damages). Even assuming a respondeat superior theory of liability would be
appropriate in the common law fraud context, Lanigan was not McGovern’s superior at the time
of the allegedly fraudulent statements, and therefore could not be liable for those statements. In
any event, because this Court is dismissing the only claim over which it has original jurisdiction
(Plaintiff’s § 1983 claim), and will dismiss McGovern from this action for the reasons stated
below, this Court declines to extend supplemental jurisdiction over any such common law fraud
claim against Lanigan. See 28 U.S.C. § 1367(c)(3).
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plaintiff shows good cause for the failure, the court shall extend the time for service for an
appropriate period.” Notice to the plaintiff is required prior to a sua sponte dismissal. George v.
Warden, 523 F. App’x 904, 907 (3d Cir. 2013). Here, Plaintiff failed to serve McGovern within
the 120 day period required by Rule 4(m). Plaintiff made only one attempt to serve McGovern,
nearly two years ago, and thereafter made no further attempt until after this Court’s order which
informed him that this action would be dismissed if Plaintiff failed to serve McGovern issued in
June 2015. As of now, Plaintiff has still not served McGovern, only making a request that he be
permitted to try to serve him in August 2015, well after the 45 days this Court permitted Plaintiff
in its June 2015 Order. Thus, this Court has provided plaintiff with adequate notice of its
intention to dismiss the matter against McGovern should Plaintiff fail to serve him within forty
five days of June 1, 2015, and Plaintiff failed to so serve McGovern. As such, dismissal of
McGovern without prejudice would be appropriate absent good cause for the delay.
Although Plaintiff attempts to argue that he has shown good cause for the delay, his
argument is essentially that he assumed that the Marshals would find McGovern based on their
reputation for being able to find anyone after the first attempt at service failed because
McGovern had retired. Plaintiff’s assumption, however, does not demonstrate good cause. In
the intervening two years, Plaintiff has not demonstrated that he diligently sought to locate and
attempt to serve McGovern prior to this Court’s 2015 order, instead suggesting that he took few,
if any steps along those lines in the past two years. Plaintiff appears to have sat on his rights for
two years, and only stirred when this Court informed him that his complaint was subject to
dismissal under Rule 4(m). Plaintiff has therefore failed to show good cause, and no further
extension is appropriate, especially in light of Plaintiff’s failure to respond to the June Order
within the time set by this Court. As good cause does not exist to further extend the time for

14

service, because Plaintiff has been provided notice of this Court’s intention to dismiss his claims
against McGovern should he fail to serve him within 45 days of the prior order, and as Plaintiff
failed to so serve McGovern, dismissal of Plaintiff’s claims against McGovern for failure to
timely serve is warranted at this time. This Court will therefore dismiss Plaintiff’s claims against
McGovern.

V. CONCLUSION
For the reasons set forth above, this Court will grant Plaintiff’s motion to amend, will
dismiss Plaintiff’s § 1983 claims against Defendant Lanigan as time barred and for failure to
state a claim for which relief may be granted, and will dismiss Plaintiff’s claims against
Defendant McGovern for failure to timely serve in accordance with Rule 4(m). An appropriate
order follows.
s/ Hon. Susan D. Wigenton,
United States District Judge

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