Spencer v. State of New Mexico et al
MEMORANDUM OPINION AND ORDER denying 30 MOTION to Quash Service of Summons & to Dismiss Complaint by Chief Judge M. Christina Armijo. (vv)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID A. SPENCER,
No. 16cv841 MCA/KK
STATE OF NEW MEXICO, et al.,
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on Defendant(s) “Contracted Medical Staff of
the San Juan County Adult Detention Center’s” (“Medical Staff”) Motion and Supporting
Memorandum to Quash Service of the Summons Naming “Contracted Medical Staff of the San
Juan County Adult Detention Center,” and to Dismiss the Complaint, Doc. 30, filed May 8, 2017
(“Motion to Quash and Dismiss”). For the reasons stated below, the Court will DENY the
Medical Staff’s Motion to Quash and Dismiss as moot..
Plaintiff filed his Amended Complaint on September 14, 2016. A summons was issued
for the Medical Staff on April 10, 2017, and was left at the San Juan County Adult Detention
Center on April 15, 2017, by an unknown person. See Doc. 30 at 1. The Medical Staff seek to
quash service of the summons and to dismiss the Amended Complaint, because the summons was
not accompanied by a copy of the Amended Complaint and was served seven months after the
filing of the Amended Complaint.
Rule 4(c)(1) of the Federal Rules of Civil Procedure provides: “A summons must be served
with a copy of the complaint. The plaintiff is responsible for having the summons and complaint
served within the time allowed by Rule 4(m) and must furnish the necessary copies to the person
who makes service.” See 1 Moore’s Federal Practice § 4.50 (2014) (“Service of a summons
without a complaint renders service of process invalid”) (citing cases from 2d, 5th, 9th and 11th
Circuits). Plaintiff’s service of process on the Medical Staff was invalid because the summons
was not accompanied by a copy of the Amended Complaint.
Plaintiff is proceeding in forma pauperis pursuant to 28 U.S.C. § 1915. See Mem. Op.
and Order at 1-2, 7, Doc. 7, filed September 12, 2016. Section 1915 provides that the “officers of
the court shall issue and serve all process, and perform all duties in [proceedings in forma
pauperis]”). 28 U.S.C. § 1915(d). Rule 4 provides that:
At the plaintiff’s request, the court may order that service be made by a United
States marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915 or as a seaman under 28 U.S.C. § 1916.
Fed. R. Civ. P. 4(c)(3).
The Court did not order service of Summons and Complaint on
Defendants when it granted Plaintiff leave to proceed in forma pauperis and stated that “[t]he
Court will order service if Plaintiff timely files an amended complaint which states a claim and
includes the addresses of every defendant named in the amended complaint.” Doc. 7. If the
Court determines, after its review pursuant to 28 U.S.C. § 1915(e)(2), that the Amended
Complaint states a claim against the Medical Staff, the Court will order service of summons and
Amended Complaint on the Medical Staff.
The Court will deny the Medical Staff’s Motion to Quash and Dismiss as moot because the
Court has not yet ordered service of summons and Amended Complaint on the Medical Staff.
IT IS ORDERED that Defendant(s) “Contracted Medical Staff of the San Juan County
Adult Detention Center’s” Motion and Supporting Memorandum to Quash Service of the
Summons Naming “Contracted Medical Staff of the San Juan County Adult Detention Center,”
and to Dismiss the Complaint, Doc. 30, filed May 8, 2017, is DENIED as moot.
M. CHRISTINA ARMIJO
CHIEF UNITED STATES DISTRICT JUDGE
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