Torres v. Beard et al

Filing 17

ORDER - AND NOW, this 20th day of September, 2012, it is ORDERED that:1. The motion (Doc. 6) to dismiss filed by the Commonwealth Defendants is granted in part and denied in part. 2. The motion is denied as to untimely service of process on the Comm onwealth Defendants and as to the claimagainst defendant Durant. 3. The motion is granted as to the CommonwealthDefendants Eleventh Amendment defense and state-law sovereign immunity defense. 4. All claims for damages against the following defendants , Jeffrey Beard, Michael Klopotoski, Vincent Kopec, Joseph Zakarauskus, Dennis Durant, Major Brittian, Lt. Bleich, Corrections Officer Semon, and Corrections Officer Ditrick, in their official capacities are dismissed. 5. All state-law claims against the following defendants, Jeffrey Beard, Michael Klopotoski, Vincent Kopec, Joseph Zakarauskus, Dennis Durant, Major Brittian, Lt. Bleich,Corrections Officer Semon, and Corrections Officer Ditrick are dismissed on the basis of state sovereign immunity. 6. Plaintiffs motion (Doc. 4) for an extension of time to effect service of process is dismissed as moot. 6 Signed by Honorable William W. Caldwell on 9/20/12 (am, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ISRAEL TORRES,
Plaintiff
v.
JEFFREY BEARD, et al.,
Defendants

:
:
:
: CIVIL NO. 1:11-CV-863
:
:
:

MEMORANDUM

I.

Introduction
Plaintiff, Israel Torres, a Pennsylvania prisoner, filed this counseled federal

civil-rights action arising from an alleged beating inflicted by his cell mate, Enrique
Sanabria, while both were incarcerated in the restricted housing unit at SCI-Dallas in
Dallas, Pennsylvania. Plaintiff avers that the defendant prison officials and officers (and
a prison psychiatrist as well) knew that Sanabria was dangerous to his cell mates but
placed Plaintiff in a cell with him anyway. As a result, “Sanabria assaulted Plaintiff
Torres, tied and gagged him and brutally beat him.” (Complaint ¶ 4). Plaintiff also
makes state-law claims.
We are considering a motion to dismiss filed by the “Commonwealth
Defendants,” the nine Department of Corrections officials and officers named as
defendants. The Commonwealth Defendants move to dismiss the complaint under Fed.
R. Civ. P. 12(b)(5) for untimely service as the complaint was not served on them within
120 days of its filing as required by Fed. R. Civ. P. 4(m). These defendants also invoke

the Eleventh Amendment as barring the action against them in their official capacities
and state-law sovereign immunity.

II.

Background
We take this background from the complaint and the evidentiary

submissions of the parties in connection with the Commonwealth Defendants’ motion.
Plaintiff alleges that the beating occurred on or about May 5, 2009, (Compl. ¶ 4) and filed
his complaint on May 5, 2011, exactly two years later. On May 16, 2011, Plaintiff’s
counsel’s secretary mailed to each of the ten defendants by first-class mail a copy of the
complaint, a cover letter, a notice of lawsuit, a request for waiver of service of summons,
and a form for waiver of service of summons. Plaintiff’s counsel received no response to
these mailings. Defendants represent they never received these mailings.
No return of service was filed with the court. About six months after the
complaint was filed, on October 19, 2011, the court issued an order requiring Plaintiff to
show good cause by October 31, 2011, why service had not been made within 120 days
of the filing of the complaint as required by Fed. R. Civ. P. 4(m). On October 31, 2011,
Plaintiff filed a “response,” stating in pertinent part, that “[t]hrough an oversight counsel
failed to realize that the waiver of service was not returned by defendants . . . .” (Doc. 4,
Response ¶ 6). The response requested an additional sixty days to effect service.
The court did not rule on the request. On December 20, 2011, Plaintiff
requested the issuance of summonses. On or about December 28, 2011, Plaintiff
served the Commonwealth Defendants. (Doc. 8, return of service). On January 17,
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2012, the Commonwealth Defendants filed their motion to dismiss.

III.

Discussion

A. The Court Will Exercise Its Discretionary Authority to Accept
the Untimely Service of Process on the Commonwealth Defendants
Fed. R. Civ. P. 4(m) requires service of the complaint within 120 days of
filing, and if service is not accomplished within that time frame, the court can either
dismiss the action or extend the time for service. If a plaintiff establishes good cause for
his failure to make timely service, the court must grant an extension of time for doing so.
As the Rule provides:
(m) Time Limit For Service. 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 on 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 time; provided that if the
plaintiff shows good cause for the failure, the court shall
extend the time for service for an appropriate period.
In ruling on a motion to extend the time for service, the Third Circuit has
decided that the court must employ a two-pronged inquiry. First, it must determine
whether good cause for the failure to effect timely service exists. "If good cause is
present, the district court must extend time for service and the inquiry is ended."
Petrucelli v. Bohringer & Ratzinger, GMBH, 46 F.3d 1298, 1305 (3d Cir. 1995). Second,
even if good cause does not exist, the court still has discretion to either dismiss the case
without prejudice or extend the time for service. Id.

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Rule 4(m) does not define “good cause,” but the Third Circuit has equated
it with the “excusable neglect" standard under Fed. R. Civ. P. 6(b)(2). MCI
Telecommunications Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995).
Thus, good cause (following from excusable neglect) "require[s] a demonstration of good
faith on the part of the party seeking an enlargement and some reasonable basis for
noncompliance within the time specified in the rules." Id. “[T]he primary focus is on the
plaintiff’s reasons for not complying with the time limit in the first place.” Id.; Boley v.
Kaymark, 123 F.3d 756, 758 (3d Cir. 1997) (quoting MCI Telecommunications, 71 F.3d
at 1097)).
In moving to dismiss the complaint, the Commonwealth Defendants argue
that Plaintiff did not have good cause to serve them beyond the 120-day deadline
because Plaintiff admits his counsel’s “oversight” caused the untimely service and
inadvertence of counsel is not good cause.
We agree. In the instant case, when it became clear that the defendants
were not returning waivers of service, Plaintiff’s counsel should have taken the next step
and effected service. It is not enough to point to the mailing of the waiver-of-service
forms. Petrucelli, supra, 46 F.3d at 1307 (“A prudent attorney exercising reasonable
care and diligence would have inquired into the matter further when it was obvious that
the acknowledgment form was not forthcoming.”). It does not assist Plaintiff that his
counsel eventually effected service on or about December 29, 2011, when that service
was well beyond the 120-day deadline. Nor can Plaintiff rely on the October 19, 2011,

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request for a sixty-day extension of time when that request also fell outside the 120-day
period. See Beckerman v. Susquehanna Twp. Police & Admin., 254 F. App’x 149, 154
(3d Cir. 2007) (nonprecedential) (no good cause for extension based in part on failure of
Plaintiff to move for extension of time before the expiration of the 120-day period). In
short, Plaintiff’s counsel did nothing within the 120-day period to effect service. This
“oversight” precludes a finding of good cause. Petrucelli, supra, 46 F.3d at 1307 (good
cause will not be found based on “inadvertence of counsel,” “half-hearted efforts by
counsel,” or “reliance upon a third party or on a process server.” (internal quotation
marks and quoted case omitted). A plaintiff’s “disregard for . . . the ‘technical niceties’ of
service of process” does not constitute good cause. Ayres v. Jacobs & Crumplar, P.A.,
99 F.3d 565, 568 (3d Cir. 1996)). See also Momah v. Albert Einstein Med. Ctr., 158
F.R.D. 66, 69 (E.D. Pa. 1994) (failure to timely serve a complaint will not be excused
when the omission was due to the attorney’s lack of diligence in effectuating the
requirements of the rule).
Having concluded that the Plaintiff has not demonstrated good cause for
his failure to comply with Rule 4(m), the court now must determine whether we should
nonetheless exercise our discretion to accept the untimely service made in December
2011. In exercising our discretion, we “may consider actual notice of the legal action;
prejudice to the defendant; the statute of limitations on the underlying causes of action;
the conduct of the defendant; and whether the plaintiff is represented by counsel, in
addition to any other factor that may be relevant when deciding whether to grant an

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extension or dismiss the complaint.” Chiang v. United States Small Bus. Admin., 331 F.
App’x 113, 116 (3d Cir. 2009) (nonprecedential). One of those other factors is the Third
Circuit’s preference for deciding cases on their merits rather than on procedural
technicalities. Gonzalez v. Thomas Built Buses, Inc., 268 F.R.D. 521, 528 (M.D. Pa.
2010).
In arguing that we should not exercise our discretion to accept the untimely
service, the Commonwealth Defendants rely on the following: (1) Plaintiff is represented
by counsel; (2) Plaintiff waited 118 days after the expiration of the 120-day period to
serve the defendants; (3) Plaintiff failed to move for an extension of time before the
expiration of the 120-day period; (4) the defendants could have been easily served
where they worked; (5) the expiration of the statute of limitations is not a reason by itself
to allow untimely service; and (6) the defendants would be prejudiced if the case were
allowed to proceed since it would deprive them of the defense of the statute of
limitations.1

1

If we were to agree with the Commonwealth Defendants that no extension should be
granted for service, we would have to dismiss the complaint without prejudice. That creates a
statute-of-limitations problem for Plaintiff. We need not decide the exact filing deadline (for
example, statutory tolling might apply, see Howard v. Mendez, 304 F. Supp. 2d 632, 638
(M.D. Pa. 2004) (Caldwell, J.)), but in Pennsylvania a two-year statute of limitations applies to
civil-rights actions, Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009), and Plaintiff filed his
complaint exactly two years after the alleged assault. “A ‘statute of limitations is not tolled by
the filing of a complaint subsequently dismissed without prejudice,’ as ‘the original complaint is
treated as if it never existed.’” Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005) (quoting
Cardio–Medical Assocs. v. Crozer–Chester Med. Ctr., 721 F.2d 68, 77 (3d Cir. 1983)).
Dismissal without prejudice thus means that a new complaint could be met with a successful
limitations defense.

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In opposition, Plaintiff argues, in relevant part, that the defendants have not
been prejudiced by the delay in service and that Plaintiff would be harmed because the
statute of limitations would bar any future suit. In support of the latter point, Plaintiff cites
in part an advisory committee note to Rule 4(m) stating that an extension may be justified
in the absence of good cause if the statute of limitations would bar a new action. See
Boley, supra, 123 F.3d at 758 (quoting the committee note).
The first four reasons advanced by the defendants only establish that
Plaintiff did not have good cause for the untimely service. We have already agreed with
that point. However, as the Third Circuit has noted, even if good cause is not
established, Rule 4(m) nonetheless give us discretion to allow untimely service. Boley,
123 F.3d at 758, 759-60 (remanding to the district court for a proper exercise of
discretion after noting that the lower court’s reasons for not allowing an extension for
service merely recapitulated its reasons for finding lack of good cause).
In regard to the statute of limitations, we find that this factor favors Plaintiff,
not the defendants. As Plaintiff’s citation to the Rule 4(m) committee note shows, we
may rely on the expiration of the statute of limitations to condone untimely service.
Boley, 123 F.3d at 758-59.2 The defendants argue they would be prejudiced if we

2

We need not rely on this factor alone, but we note that the defendants’ assertion that
the limitations issue cannot by itself justify an extension is not supported by the case they cite,
Gayden v. HQ Fort Dix, No. 04-5299, 2006 WL 2318917, at *3 (D. N.J. Aug. 9, 2006). Citing
Petrucelli, supra, 46 F.3d at 1307 n.11, and MCI Telecommunications Corp., supra, 71 F.3d at
1097-98, Gayden said that the expiration of the statute of limitations and lack of prejudice to
the defendants did not justify a finding of good cause to extend the service deadline. At this
point, we are dealing with our discretionary authority to extend the time for service.

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allowed the case to proceed because it would deprive them of the defense of the statute
of limitations. There are two problems with this argument. First, prejudice to the
defendant must be more than an inability to invoke the statute of limitations; it must
“damage a defendant’s ability to defend on the merits.” Id. at 759.3 Second, interpreting
Rule 4(m), “under which the court may extend the time for service to avoid the bar of
limitations, to authorize the court to refuse to extend it so the defendant may gain the
benefit of that bar appears to us to be inconsistent with its purpose.” Id. at 758
(emphasis in original).4
We will therefore exercise our discretionary authority under Rule 4(m) to
accept the untimely service on the Commonwealth Defendants. We base this on the
following factors: (1) the applicable statute of limitations may bar a new action; (2) lack of

3

In their reply brief, the defendants argue that after two years plus 120 days it is
reasonable for a potential defendant “to presume that no claim was filed and begin acting
accordingly in terms of document and evidence retention.” (Doc. 12, ECF p. 8). We will not
consider this argument because it was made for the first time in the reply brief, it does not say
that the defendants actually started disposing of records, and it is not supported by any
evidentiary material.
4

Defendants also rely on our decision in Beckerman v. Susquehanna Twp., No. 05349, 2005 WL 3488409, at *3 (M.D. Pa. Dec. 21, 2005), affirmed in Beckerman, supra, 254 F.
App’x 149 (3d Cir. 2007) (nonprecedential), where we exercised our discretion to dismiss an
amended complaint that had been served only two days after the 120-day period had expired
and where a new suit might be barred by the statute of limitations. Beckerman is
distinguishable because the plaintiff there did not brief whether our discretionary authority
under Rule 4(m) allowed us to extend the time for service. In fact, neither party did. 2005 WL
3488409, at *3 (“Next, we must determine whether we should exercise our discretion to
extend the time for service. Neither party has addressed this aspect of the Rule 4(m)
analysis.”). Further, the plaintiff had “made no real attempt to persuade us that we should
grant him an extension of time.” Id.

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prejudice to the defendants; and (3) the Third Circuit’s preference that cases be tried on
the merits.
Since the action will continue, we turn to the other arguments raised in the
defendants’ motion.

B. The Eleventh Amendment Bars Damages Claims Against
the Commonwealth Defendants in Their Official Capacities
The Commonwealth Defendants argue that the Eleventh Amendment bars
the damages claims against the Commonwealth Defendants in their official capacities.
Plaintiff concedes that this is correct
We agree. The Eleventh Amendment bars suits for monetary damages
against a state and its agencies in federal court. See Pennhurst v. Halderman, 465 U.S.
89, 99-100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); A.W. v. Jersey City Public
Schools, 341 F.3d 234, 238 (3d Cir. 2003). Suits against state officials acting in their
official capacities are really suits against the employing government agency, and as
such, are also barred by the Eleventh Amendment. See Hafer v. Melo, 502 U.S. 21, 2527, 112 S.Ct. 358, 361-62, 116 L.Ed.2d 301 (1991); Will v. Mich. Dep’t of State Police,
491 U.S. 58, 70-71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). The Commonwealth
of Pennsylvania has expressly withheld consent and has not waived its Eleventh
Amendment immunity. See 42 Pa. Cons. Stat. Ann. § 8521-8522. We will therefore
dismiss the damages claims against the Commonwealth Defendants in their official
capacities.

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C. Plaintiff’s State-Law Claims Are Barred by Sovereign Immunity
The Commonwealth Defendants move to dismiss the state-law claims
against them on the basis of sovereign immunity. Plaintiff argues there is an exception
to sovereign immunity for conduct of government employees acting within the scope of
their employment that constitutes crimes, fraud or intentional torts. The defendants reply
that Plaintiff incorrectly relies on law applying to local government employees, see, e.g.,
Sanford v. Stiles, 456 F.3d 298, 314-15 (3d Cir. 2006), and that employees of the state
do not lose their immunity even for intentional torts. We agree with the defendants.
State law immunizes these Department of Corrections officials and officers as
Commonwealth parties even from intentional torts. See Williams v. Stickman, 917 A.2d
915, 917 (Pa. Commw. Ct. 2007) (quoting La Frankie v. Miklich, 152 Pa. Commw. Ct.
163, 170, 618 A.2d 1145, 1149 (1992) (en banc)).

D. Defendant Durant Will Not Be Dismissed at This Time
Plaintiff alleges in his complaint that defendant Dennis Durant was at the
relevant time a major of the correctional officers at SCI-Dallas and was responsible for
the training, supervision and conduct of three other correctional-officer defendants.
(Compl. ¶ 15). Plaintiff attempted service on Durant by serving the summons and
complaint on the assistant superintendent at Dallas. (Doc. 8, ECF 8).
The defendants move to dismiss the complaint as against Durant by
submitting the penalty-of-perjury declaration of a human resources analyst affirming in

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part that his review of Department records indicates that Dennis Durant was not working
at Dallas in 2009, the year of the alleged assault, and that he left the Department’s
employ in December 2007. Defendants thus argue that: (1) the claim lacks merit as
against Durant; and (2) service was improper on him as he SCI-Dallas was not his place
of business.
The defendants are relying on matters outside the pleadings, so we agree
with Plaintiff that attempts to remove Durant from the case at this time are premature. A
fuller record will allow a better adjudication of the defendants’ claim that Durant was
never properly served and should not, in any event, be in the case as he was not working
at SCI-Dallas during the relevant time.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: September 20, 2012

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ISRAEL TORRES,
Plaintiff
v.
JEFFREY BEARD, et al.,
Defendants

:
:
:
: CIVIL NO. 1:11-CV-863
:
:
:

ORDER

AND NOW, this 20th day of September, 2012, it is ORDERED that:
1. The motion (Doc. 6) to dismiss filed by the
“Commonwealth Defendants” is granted in part and denied in
part.
2. The motion is denied as to untimely service of process
on the Commonwealth Defendants and as to the claim
against defendant Durant.
3. The motion is granted as to the Commonwealth
Defendants’ Eleventh Amendment defense and state-law
sovereign immunity defense.
4. All claims for damages against the following defendants,
Jeffrey Beard, Michael Klopotoski, Vincent Kopec, Joseph
Zakarauskus, Dennis Durant, Major Brittian, Lt. Bleich,
Corrections Officer Semon, and Corrections Officer Ditrick, in
their official capacities are dismissed.
5. All state-law claims against the following defendants,
Jeffrey Beard, Michael Klopotoski, Vincent Kopec, Joseph
Zakarauskus, Dennis Durant, Major Brittian, Lt. Bleich,
Corrections Officer Semon, and Corrections Officer Ditrick are
dismissed on the basis of state sovereign immunity.

6. Plaintiff’s motion (Doc. 4) for an extension of time to
effect service of process is dismissed as moot.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge