BANEGAS v. HAMPTON et al

Filing 19

MEMORANDUM. SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 4/27/09. 4/27/09 ENTERED AND COPIES E-MAILED. (jpd)

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA MARIO BANEGAS, Plaintiff v. JOHN HAMPTON et al., Defendants : : : : : : : CIVIL ACTION

NO. 08-5348

MEMORANDUM STENGEL, J. April 27, 2009

M a rio Banegas has moved to serve defendant John Hampton by alternate means p u rs u a n t to Pennsylvania Rule of Civil Procedure 430. Because his attempt to serve H a m p to n at the last known address was unsuccessful, Banegas seeks leave to serve by p u b lic a tio n . For the reasons that follow, I will deny the motion.

I . Background M a rio Banegas, an inmate incarcerated at the Chester County Prison located in W e st Chester, Pennsylvania, was physically beaten in his cell by an inmate who was a llo w e d in by two of the prison's corrections officers. These officers made no attempt to sto p the assailant or otherwise aid Mr. Banegas and were charged with crimes for their a c tio n s . M r. Banegas was housed in the Restricted Housing Unit at Chester County Prison. (Compl.¶ 25.) John Hampton and Charles Goodman were corrections officers at the p ris o n . (Id. ¶¶ 7­8.) Mr. Stephon Gilchrist is an inmate who was housed at the Chester

C o u n try Prison during the relevant time; he has since been relocated to another facility. (Id. ¶ 9.) Banegas and Gilchrist were both in the Restricted Housing Unit but housed in s e p a ra te cells. (Id. ¶¶ 25, 28.) A t some prior time, Mr. Banegas had made statements criticizing Islam to Mr. G ilch rist who is a Muslim. (Id. ¶ 29.) Officers Hampton and Goodman knew that Mr. B a n e g a s had made such statements and conspired with Gilchrist to attack Banegas. (Id. ¶ 3 0 .) O n March 18, 2007, Hampton, Goodman, and Gilchrist put their plan into action. The officers asked a colleague to open the door to Mr. Banegas' cell. (Id. ¶ 30.) The o f f ic e rs then allowed Gilchrist to enter and attack Banegas. (Id. ¶ 31.) They made no a tte m p t to restrain Gilchrist or otherwise protect Banegas. (Id.) Banegas lost c o n sc io u sn e ss and suffered a broken rib. (Id. ¶ 35.) He incurred approximately $3500 in m e d ic a l costs. (Id. ¶ 38.) O n June 8, 2007, Officers Hampton and Goodman were criminally charged for th e i r role in the attack and for making unsworn falsifications to investigating authorities.1 (Id. ¶¶ 40­41.) On November 26, 2007, both officers pleaded guilty. (Id. ¶¶ 42­43.) Both are currently serving five year probation terms as part of their guilty pleas. (See P l.'s Mot. for Extension of Time to Serve ¶ 10 (Document #11).) Through his agent, Mr. Banegas unsuccessfully attempted to serve Mr. Hampton The officers allegedly lied to investigators and stated that Mr. Banegas' injuries were self-inflicted. (Compl. ¶ 40.) -21

o n January 7, 2009, at the address of 5726 Spruce Street, Philadelphia, Pennsylvania. (Pl.'s Mot. for Alternate Means of Service ¶ 1 (Document #12).) The service agent was told that Hampton had moved away and that his current address is unknown. (Id. ¶ 2.) No other service attempt appears to have been made. O n March 11, 2009, Mr. Banegas filed a motion requesting a court order directing th e Chester County Adult Probation and Parole Department to provide any information it h a d on Mr. Hampton's whereabouts. (See Pl.'s Mot. for Extension of Time to Serve ¶ 1 3 .) Shortly thereafter, Mr. Guy Donatelli, Esquire, counsel for defendants Warden E d w ard McFadden, the Chester County Prison Board, and the County of Chester, c o n ta c te d the Probation and Parole Department and provided plaintiff's counsel with the a d d re ss on record with the department. (Pl.'s Mot. for Alternate Means of Service ¶¶ 4 ­ 5 .) This address turned out to be the same as the one used by the service agent on J a n u a ry 7, 2009. (Id. ¶ 6.) M r. Banegas moves to serve Mr. Hampton by publication, pursuant to Federal R u le of Civil Procedure 4(e)(1) and Pennsylvania Rule of Civil Procedure 430. He a lle g e s that Mr. Hampton is evading service by "instructing other residents where he lives to deny that he lives at [that ] address," and that "further inquiry into Defendant H a m p to n 's whereabouts will be futile because he is believed to be hiding out at the a d d re ss provided by [Mr. Donatelli.]" (Id. ¶¶ 7, 10.) He proposes to make service by o n e -tim e publication in the official legal journal of the Philadelphia Court of Common

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P le a s and in a newspaper of general circulation in the Philadelphia. (Id. ¶ 12.)

I I . Legal standard D u e process requires that service of process be reasonably calculated, under all c irc u m s ta n c es , to apprise interested parties of the pendency of the action and afford them a n opportunity to present their objections. Calabro v. Leiner, 464 F. Supp. 2d 470, 471 (E .D . Pa. 2006) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 7 0 S. Ct. 652, 94 L. Ed. 865 (1950)). According to Federal Rule of Civil Procedure 4(e), se rv ice may be effected pursuant to the law of the state in which the district court is lo c a te d . Pennsylvania Rule of Civil Procedure 430(a) provides that if service cannot be m a d e under the applicable rules, "the plaintiff may move the court for a special order d ire c tin g the method of service." The rule requires that any such motion be accompanied b y an affidavit "stating the nature and extent of the investigation which has been made to d e te rm in e the whereabouts of the defendant and the reasons why service cannot be m a d e ." PA. R. CIV. P. 430(a); see also Johnson v. Jackson, 2004 U.S. Dist. LEXIS 463, 2 0 0 4 WL 73729, at *1 (E.D. Pa. Jan. 6, 2004). In order to demonstrate that the remedy is appropriate, the plaintiff must satisfy th re e conditions: (1) the plaintiff must make a good faith effort to locate the defendant; (2 ) the plaintiff must show that he has made practical efforts to serve the defendant under th e circumstances; and (3) the plaintiff's proposed alternate means of service "must be

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r e a so n a b l y calculated to provide the defendant with notice of the proceedings against h im ." Premium Payment Plan v. Shannon Cab Co., 2007 WL 2319776, at *2 (E.D. Pa. A u g . 13, 2007) (citing Calabro, 464 F. Supp. 2d at 472) (internal quotations omitted); see a ls o Flannigan v. Borough of Ambridge, 2007 U.S. Dist. LEXIS 7312, 2007 WL 404010, at *2 (W.D. Pa. Feb. 1, 2007).

I I I . Discussion I will deny the request to serve by alternate means because Mr. Banegas fails to m e e t the second condition for granting leave.2 He has not satisfied his burden of d e m o n s tra tin g that he has made reasonable efforts to serve Mr. Hampton. "Half-hearted a tte m p ts at service will not do." Calabro, 464 F. Supp. 2d at 473. Depending on the c irc u m s ta n c es , the plaintiff may be required to attempt to make service at different times o f day or on different days of the week. Id. at 472. Courts in this district have found a p la in tif f 's efforts to be sufficient when he or she has made six attempts at service, United S ta te s v. Muhammed, 2009 WL 605996, at *2 (E.D. Pa. Mar. 9, 2009) (Bartle, J.), or " re p e ate d attempts . . . including a stake out," Premium Payment Plan, 2007 WL 2 3 1 9 7 7 6 , at *1­2. On the other hand, courts have found efforts to be insufficient where

As to the first step, Mr. Banegas has made a good faith effort to locate Mr. Hampton by making online searches of his address in connection with Hampton's criminal case, (see Pl.'s Mot. for Extension of Time to Serve ¶ 11), and conferring with Mr. Donatelli to get the pertinent information on file with the Probation and Parole Department (see Pl.'s Mot. for Alternate Means of Service ¶¶ 4­6). -5-

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th re e attempts were made with two falling on the same day of the week and two occurring at the same time of day, Calabro, 464 F. Supp. 2d at 473, or when two attempts were m a d e on consecutive days of the week with the first being made to a vacant office, B a rb o s a v. Dana Capital Group, Inc., 2009 WL 902339, at *6 (E.D. Pa. Mar. 31, 2009) (G ard n er, J.). I am not convinced that Banegas has made a sufficiently reasonable effort to serve Hampton. The number of times a plaintiff attempts to make service is not n e c e ss a rily determinative of whether the efforts were reasonable and practical, but it is c e rta in ly probative. To claim that the single service attempt under these circumstances s a tis f ie s the practical efforts standard requires a substantial reinterpretation of the s ta n d a rd itself. Indeed, rather than giving up, Banegas is now positioned to renew his efforts to se rv e the summons and complaint upon Hampton. Banegas has made only one attempt, a n d was not sure whether it was correct at the time. He has now confirmed that it is H a m p to n 's likely residence. Accordingly, I do not find that he has satisfied the second c o n d itio n . B a n e g a s contends that further service attempts would be futile because Hampton is a ttem p tin g to evade service. (Pl.'s Mot. for Alternate Means of Service ¶¶ 7, 10.) This is in serious tension with his statement that "[Hampton] is believed to be hiding out" at the a d d re ss in Banegas' possession. (Id. ¶ 10.) If Hampton is there, then Banegas should m a k e additional attempts to serve. See, e.g., Premium Payment Plan, 2007 WL 2319776,

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a t *1 (finding that reasonable efforts had been made when the plaintiff had made "several a tte m p ts " to serve a corporation through an officer authorized to receive service, the in d iv id u a ls within the officer's residence refused to come to the door, and the plaintiff (or th e service agent) unsuccessfully staked-out the officer's residence). If these further a tte m p ts prove to be unsuccessful, then Banegas' claim that Hampton is evading service g a in s additional credibility, and the facts would be tilted in favor of allowing service by a ltern a te means. On the basis of only one attempt at an address believed to be correct, B a n e g as ' argument that further attempts would be futile is unpersuasive. In short, the p e n d in g motion is premature. B e c au s e Mr. Banegas has failed to demonstrate that he has satisfied the second c o n d itio n of Rule 430, I do not consider whether his proposed method of service is " r e a so n a b l y calculated to provide [the defendant] with notice of the proceedings against [ h im .]" Morgan Truck Body, 2008 WL 746827, at *7.

I V . Conclusion F o r the foregoing reasons, I will deny without prejudice the motion for leave to s e rv e by alternate means. An appropriate Order follows.

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