GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 48

MEMORANDUM OPINION AND ORDER that Plaintiffs' 33 Motion for an extension of time to effect service of process is GRANTED in part and DENIED in part; that Plaintiff's 34 Motion for the issuance of new Summonses is GRANTED in part and DEN IED in part; that the Clerk shall issue new Summonses for Correctional Medical Service, Inc., Charles Warren, Jr. and Dr. Nuggen, M.D.; that Plaintiff's 36 Motion to compel discovery from Defendants Despina Terris and Saint Francis Medical Center is DENIED; that Defendant Despina Terris shall respond to Plaintiff's Third Set of Interrogatories within thirty (30) days from the entry of this Order. Signed by Magistrate Judge Douglas E. Arpert on 1/29/2015. (jjc)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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AUGUSTIN GARCIA

Plaintiff,
v.

CORRECTIONAL MEDICAL
SERVICE, INC., et al.,
Defendants.

Civil Action No. 13-1250 (PGS)(DEA)
MEMORANDUM OPINION
AND ORDER

ARPERT, Magistrate Judge
This matter comes before the Court on three Motions by Plaintiff: (1) a Motion for an
extension of time to effect service of process on the remaining unserved Defendants [Dkt. No.
33]; (2) a Motion for the issuance of new Summonses [Dkt. No. 34]; and (3) a Motion to compel
discovery from Defendants Despina Terris and Saint Francis Medical Center [Dkt. No. 36].
Defendant Despina Terris opposes Plaintiff’s Motion to compel discovery [Dkt. No. 43]. The
remaining two Motions are unopposed. For the reasons set forth below, Plaintiff’s Motion for an
extension of time to effectuate service of process [Dkt. No. 33] is GRANTED in part and
DENIED in part, Plaintiff’s Motion for the issuance of new Summonses [Dkt. No. 34] is
GRANTED in part and DENIED in part, and Plaintiff’s Motion to compel discovery from
Defendants Despina Terris and Saint Francis Medical Center [Dkt. No. 36] is DENIED.
Pro se Plaintiff Augustin Garcia’s Complaint was filed on January 30, 2014 and asserts
claims pursuant to 28 U.S.C. § 1983 against Defendants Correctional Medical Service (“CMS”),
Ralph Woodward, M.D., Abu Ahsan, M.D., Dr. Nuggen, M.D., Despina Terris, M.D., Saint
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Francis Medical Center (“SFMC”), Charles Warren, Jr., New Jersey State Prison (“NJSP”), Gary
Lanigan, New Jersey Department of Correction (“NJDOC”), New Jersey Department of Public
Safety and Correctional Services (“NJDPS”), and John and Jane Does Nos. 1-30.1 As relevant to
the present Motions, Plaintiff alleges that while incarcerated he was diagnosed with prostate
cancer. According to Plaintiff, during the subsequent treatment for his prostate cancer and
complications arising therefrom, Defendants were deliberately indifferent to his serious medical
needs in violation of his Eighth Amendment rights.
I. Motion for Extension of Time to Serve Defendants [Dkt. No. 33]
Pursuant to Federal Rule of Civil Procedure 4(m), “[i]f a defendant is not served within
120 days after the complaint is filed, the court . . . must dismiss the action without prejudice
against that defendant or order that service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the time for service for an appropriate
period.”
In deciding whether to grant a Motion to extend time for service:
“[f]irst, the district court should determine whether good cause
exists for an extension of time. If good cause is present, the district
court must extend time for service and the inquiry is ended. If,
however, good cause does not exist, the court may in its discretion
decide whether to dismiss the case without prejudice or extend
time for service.”
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). The Third Circuit
equates “good cause” under Rule 4(m) with “the concept of ‘excusable neglect’ of Federal Rule
of Civil Procedure 6(b)(2), which requires ‘a demonstration of good faith on the part of the party
seeking an enlargement and some reasonable basis for noncompliance within the time specified

Plaintiff’s Complaint was first received by the Court on February 25, 2013, along with Plaintiff’s application to
proceed in forma pauperis. See Dkt. No. 1. On January 30, 2014, the Court granted Plaintiff’s application to proceed
in forma pauperis and directed the Clerk to file Plaintiff’s Complaint. See Dkt. No. 4.
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in the rules.’” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995)
(quoting Petrucelli, 46 F.3d at 1312), cert. denied, 519 U.S. 815 (1996). The Court may consider
such factors as the “(1) reasonableness of plaintiff's efforts to serve; (2) prejudice to the
defendant by lack of timely service; and (3) whether plaintiff moved for an enlargement of time
to serve.“ Okagbue–Ojekwe v. Fed. Bureau of Prisons, 2010 WL 3947528, at *2 (D.N.J. Oct. 7,
2010) (quoting MCI Telecomm. Corp., 71 F.3d at 1097).
Plaintiff’s Complaint was filed on January 30, 2014. See Dkt. No. 4. Plaintiff filed the
present Motion on December 8, 2014, seeking a 90 extension to serve Defendants Charles
Warren, Jr., NJDPS, NJSP, CMS, Despina Terris, M.D., Dr. Nuggen, M.D., and Ralph
Woodward, M.D.2
The only basis provided by Plaintiff for his failure to serve Defendants is that “the prison
mail system it too unreliable thus the correspondence between the Marshals Services and I take
longer than it should.” Dkt. No. 33, Augustin Decl. at p. 2. Although the Court is mindful of the
challenges faced by Plaintiff in litigating his case pro se while incarcerated, Plaintiff’s pro se
status does not excuse his failure to comply with Rule 4. See Veal v. United States, 84 F. Appx.
253, 256 (3d Cir. 2004). Plaintiff’s time to serve Defendants expired on May 30, 2014, and
Plaintiff did not make the present request for an extension until December 8, 2014. While
Plaintiff may experience a delay in his communication with the U.S. Marshall’s Service, such a
delay does not justify the passage of several months between Plaintiff’s single failed attempt at
service for each of the Defendants and Plaintiff’s present request for an extension.

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Plaintiff attempted to serve Defendant Warren on April 21, 2014, and the Summons was returned unexecuted [Dkt.
No. 8], Defendant NJDPS on April 21, 2014, and the Summons was returned unexecuted [Dkt. No. 11], Defendant
NJSP on June 2, 2014, and the Summons was returned unexecuted [Dkt. No. 13], Defendant CMS on June 2, 2014,
and the Summons was returned unexecuted [Dkt. No. 14], Defendant Terris on June 2, 2014, and the Summons was
returned unexecuted [Dkt. No. 16], Defendant Nuggen on June 2, 2014, and the Summons was returned unexecuted
[Dkt. No. 17], and Defendant Woodward on June 16, 2014, and the Summons was returned unexecuted [Dkt. No.
18].

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It also appears from the documentation submitted by Plaintiff that he is experiencing
difficulty in obtaining the proper addresses for service. Dkt. No. 33, Exhibit A at p. 23-29. While
Rule 4(c)(3) requires that the Court effect service of the summons and complaint for a plaintiff
who is proceeding in forma pauperis, the plaintiff must provide sufficient information for the
Court to do so. See Maltezos v. Giannakouros, 522 Fed. Appx. 106, 108 (3d Cir. 2013) (citing
Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.1993)). Although the Court is mindful that
Plaintiff is proceeding pro se, he is still responsible for providing the necessary information to
effect service, and Plaintiff’s failure to obtain the proper addresses to serve the Defendants does
not constitute good cause.
Notwithstanding the lack of good cause, the Court, in its discretion, will grant Plaintiff an
extension of time to serve process. However, the Court will limit Plaintiff’s extension to 60 days,
rather than the 90 days requested by Plaintiff. Plaintiff’s Motion is unopposed and none of the
unserved Defendants have moved for the dismissal of Plaintiff’s Complaint based on his failure
to effect service of process. Accordingly, because the Court finds that Defendants will not be
prejudiced by an extension of Plaintiff’s time to serve, the Court exercises its discretion and
Plaintiff’s Motion for an extension of time to serve Defendants is GRANTED in part and
DENIED in part.
II. Motion for the Issuance of New Summonses [Dkt. No. 34]
Pursuant to Federal Rule of Civil Procedure 4(c)(3), the Court must order “that service be
made by a United States marshal . . . if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915.” Accordingly, upon granting Plaintiff’s application to proceed in forma
pauperis on January 30, 2014, the Court directed the Clerk to issue Summonses and instructed
the U.S. Marshal’s Service to serve the summonses and Complaint. See Dkt. No. 4. The

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Summonses issued for Defendants Charles Warren, Jr., NJDPS, NJSP, CMS, Despina Terris,
M.D., Dr. Nuggen, M.D., and Ralph Woodward, M.D. were returned unexecuted. On December
8, 2014, Plaintiff filed the present Motion seeking the issuance of new Summonses for
Defendants CMS, Warren, Nugent, NJDPS and NJSP.
On December 22, 2014, the Court granted the Motion to Dismiss filed by Defendants
NJSP, NJDPS and NJDOC, thereby removing NJSP and NJDPS as parties to this action. See
Dkt. No. 38. Accordingly, Plaintiff’s request for the issuance of new Summonses is DENIED as
to Defendants NJSP and NJDPS and GRANTED as to Defendants CMS, Warren and Nugent.
III. Motion to Compel Discovery [Dkt. No. 36]
Plaintiff seeks to compel responses to his Interrogatories from Defendants Despina Terris
and SFMC. Pursuant to Federal Rule of Civil Procedure 33, “[u]nless otherwise stipulated or
ordered by the court, a party may serve on any other party no more than 25 written
interrogatories, including all discrete subparts.” Fed. R. Civ. P. 33(a)(1).
According to Plaintiff, On February 21, 2014 and October 2, 2014, he served Defendants
Terris and SFMC with Interrogatories and requests for production of documents. Plaintiff claims
that through correspondence dated October 25, 2014, Defendant Terris requested that Plaintiff
limit his Interrogatories from 46 to 25. Plaintiff asserts that on October 30, 2014, Plaintiff mailed
his modified 25 Interrogatories to Defendants, which were labeled “Plaintiff’s Third Set of
Interrogatories” (the “Third Set of Interrogatories”).3 On December 22, 2014, after Plaintiff filed
the present Motion to compel, the Court granted SFMC’s Motion for Summary Judgment [Dkt.
No. 38]. Accordingly, SFMC is no longer a party to this action. The Court’s December 22, 2014
Order also granted Despina Terris’ Motion for Summary Judgment as it related to Plaintiff’s

Plaintiff’s “Third Set of Interrogatories” were attached by Plaintiff to his Certification in opposition to SFMC’s
Motion for Summary Judgment as “Attachment D” [Dkt. No. 29].
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medical malpractice claim and denied the Motion as it related to Plaintiff’s Eighth Amendment
Claim.
On January 8, 2015, the Court received a letter from Defendant Terris requesting that the
Court limit Plaintiff’s Interrogatories from 46 to 25. Attached to Defendant’s letter are 46
Interrogatories, dated October 2, 2014, and labeled “Plaintiff’s Second Set of Interrogatories”.
The Court is unclear whether Despina Terris was ever served with the Third Set of
Interrogatories and notes that the Third Set of Interrogatories are addressed to counsel for SFMC.
See Dkt. No. 29, “Attachment D”. Although the modified Interrogatories were addressed to
counsel for SFMC, Plaintiff’s Motion to compel indicates that the Interrogatories were produced
and modified from 46 to 25 in response to correspondence with Despina Terris’ counsel. See
Dkt. No. 36 at p. 5. Accordingly, because Plaintiff has already limited his Interrogatories from 46
to 25, Defendant Terris’ request that the Court limit Plaintiff’s Interrogatories is moot. However,
because it is unclear to the Court whether Plaintiff served the Third Set of Interrogatories on
Despina Terris, the Court will not issue an Order compelling discovery under Federal Rule of
Civil Procedure 37. Instead, the Court directs Defendant Despina Terris to respond to Plaintiff’s
Third Set of Interrogatories pursuant to the requirements of Federal Rule of Civil Procedure 33.
Based on the foregoing, Plaintiff’s Motion to compel discovery from SFMC and Despina
Terris is DENIED and Defendant Despina Terris’ application to the Court to limit Plaintiff’s
Interrogatories from 46 to 25 is DENIED as moot. Plaintiff’s Motion to compel discovery from
SFMC is denied because St. Francis is no longer a party to this action and Plaintiff’s Motion to
compel discovery from Despina Terris is DENIED because it is unclear whether Defendant
Terris was ever served with the Third Set of Interrogatories. However, Defendant Terris is

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directed to respond to Plaintiff’s Third Set of Interrogatories within 30 days of the entry of this
Order in accordance with Federal Rule of Civil Procedure 33.
IV. Conclusion and Order
The Court having considered the papers submitted pursuant to Federal Rule of Civil
Procedure 78, and for the reasons set forth above;
IT IS on this 29th day of January, 2015,
ORDERED that Plaintiff’s Motion for an extension of time to effect service of process
[Dkt. No. 33] is GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff must serve the remaining unserved Defendants within sixty
(60) days of the entry of this Order; and it is further
ORDERED that Plaintiff’s Motion for the issuance of new Summonses [Dkt. No. 34] is
GRANTED in part and DENIED in part; and it is further
ORDERED that Plaintiff’s Motion for the issuance of new Summonses for Defendants
New Jersey State Prison and New Jersey Department of Public Safety and Correctional Services
is DENIED; and it is further
ORDERED that Plaintiff’s Motion for the issuance of new Summonses for Defendants
Correctional Medical Service, Inc., Charles Warren, Jr. and Dr. Nuggen, M.D. is GRANTED;
and it is further
ORDERED that the Clerk shall issue new Summonses for Correctional Medical Service,
Inc., Charles Warren, Jr. and Dr. Nuggen, M.D.; and it is further
ORDERED that Plaintiff’s Motion to compel discovery from Defendants Despina Terris
and Saint Francis Medical Center [Dkt. No. 36] is DENIED; and it is further

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ORDERED that Defendant Despina Terris shall respond to Plaintiff’s Third Set of
Interrogatories within thirty (30) days from the entry of this Order in accordance with Federal
Rule of Civil Procedure 33.4

/s/ Douglas E. Arpert
DOUGLAS E. ARPERT
United States Magistrate Judge

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Although it is unclear whether Plaintiff ever served Despina Terris with the Third Set of Interrogatories, in the
interests of judicial economy, Plaintiff is not required to serve or re-serve the Interrogatories. Defendant Despina
Terris is directed to answer the Third Set of Interrogatories attached by Plaintiff to his Certification in opposition to
SFMC’s Motion for Summary Judgment as “Attachment D” [Dkt. No. 29].

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