Terry v. County of Milwaukee et al

Filing 157

ORDER signed by Judge J.P. Stadtmueller on 8/7/2018 GRANTING in part 149 Defendant Armor Correctional Health Services' Motion to Dismiss the Armor Doe Defendants. Defendants Jane and John Doe, Unknown Employees of Armor Correctional Health Services, and Defendants Jane and John Doe, Unknown Armor Healthcare Supervisors, are DISMISSED from this action without prejudice. See Order. (cc: all counsel)(jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
REBECCA TERRY,
Plaintiff,
v.
COUNTY OF MILWAUKEE,
RICHARD R. SCHMIDT, OFFICER
BRIAN WENZEL, UNKNOWN
EMPLOYEES OF MILWAUKEE
COUNTY JAIL, UNKNOWN JAIL
SUPERVISORS, ARMOR
CORRECTIONAL HEALTH
SERVICES, CAROLYN EXUM,
MORGAN BEVENUE, MARGARET
HOOVER, UNKNOWN EMPLOYEES
OF ARMOR CORRECTIONAL
HEALTH SERVICES, and
UNKNOWN ARMOR
HEALTHCARE SUPERVISORS,

Case No. 17-CV-1112-JPS

ORDER

Defendants.

In her amended complaint, Plaintiff asserts constitutional claims
against Jane and John Doe employees of Armor Correctional Health
Services (“Armor”). (Docket #129 at 5). Armor filed a motion to dismiss
these Doe defendants on July 9, 2018 pursuant to Federal Rule of Civil
Procedure 12(b)(5), arguing that Plaintiff has had sufficient opportunity to
learn their identities during discovery and has not timely identified or
effected service upon them. (Docket #149). The deadline for responding to
Armor’s motion was July 30, 2018, see Civ. L. R. 7(b), but Plaintiff has filed
no response to date. Consequently, the Court treats the motion as

unopposed and will grant it on that basis. Id. 7(d) (“Failure to file a
memorandum in opposition to a motion is sufficient cause for the Court to
grant the motion.”). However, contrary to Armor’s request for a dismissal
with prejudice, the Court will dismiss these defendants without prejudice,
as the text of Federal Rule of Civil Procedure 4(m) requires it. See Fed. R.
Civ. P. 4(m) (“If a defendant is not served within 90 days after the complaint
is filed, the court—on motion or on its own after notice to the plaintiff—
must dismiss the action without prejudice against that defendant or order
that service be made within a specified time.”); Cardena v. City of Chi., 646
F.3d 1001, 1007 (7th Cir. 2011).
Accordingly,
IT IS ORDERED that Armor Correctional Health Services’ motion
to dismiss the Armor Doe defendants (Docket #149) be and the same is
hereby GRANTED in part; and
IT IS FURTHER ORDERED that Defendants Jane and John Doe,
Unknown Employees of Armor Correctional Health Services, and Jane and
John Doe, Unknown Armor Healthcare Supervisors (Docket #129 at 1, 5) be
and the same are hereby DISMISSED from this action without prejudice.
Dated at Milwaukee, Wisconsin, this 7th day of August, 2018.
BY THE COURT:

J.P. Stadtmueller
U.S. District Judge

Page 2 of 2