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Jones v. Shearin

United States District Court, D. Maryland

July 6, 2017

THOMAS JONES
v.
WARDEN BOBBY P. SHEARIN, et al.

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE

         Presently pending and ready for resolution in this civil rights case is the motion to dismiss or, in the alternative, for summary judgment filed by Defendant Amy Conner (“Defendant”).[1](ECF No. 42). The issues have been briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, Defendant's motion will be granted.

         I. Background

         A. Factual Background[2]

         In early February 2012, Plaintiff Thomas Jones (“Plaintiff”), an inmate at North Branch Correctional Institution (“North Branch”) in Cumberland, Maryland, was reassigned from the D-wing housing unit #2 to the B-wing housing unit #2. (ECF No. 1 ¶¶ 3, 8-9). Defendant, a correctional officer, assigned Plaintiff to the top bunk of cell #19 in the B-wing. (Id. ¶ 11). Plaintiff requested the bottom bunk, explaining to Defendant that “being placed on the top bunk[] would place him in danger due to his serious medical condition. Plaintiff simply ask[ed] permission to take the bottom bunk to avoid being injured if he became ill from a seizure.” (Id. ¶ 12). Plaintiff also showed Defendant his I.D. card, which “clearly indicated ‘seizure patient.'” (Id. ¶ 13). Defendant examined the I.D. card, but again ordered Plaintiff to take the top bunk, advising him that he would be subject to “disciplinary adjustment” if he refused to comply. (Id. ¶¶ 13-14). Plaintiff took the top bunk. (Id. ¶ 15).

         On February 22, 2012, Plaintiff experienced a seizure while asleep and fell from the top bunk to the floor. (Id. ¶ 16). He sustained “several fractured bones in the areas of his hip and face.” (Id.). Plaintiff underwent three surgeries and may require further treatment as a result of this injury. (Id. ¶ 17). He alleges that, due to his fall, he has “suffered severe physical pain, disfigurement, and emotional pain[.]” (Id. ¶ 18).

         B. Procedural Background

         Plaintiff filed this suit against Defendant and Defendants Bobby P. Shearin, Frank B. Bishop, Jr., and Paul Pennington (collectively “Defendants”) on February 20, 2015. (ECF No. 1). Plaintiff asserts one claim under 42 U.S.C. § 1983 for deliberate indifference to medical needs in violation of the Eighth Amendment to the United States Constitution and seeks money damages. (Id. ¶¶ 20-26). Plaintiff alleges that “despite having full knowledge of Plaintiff's illness and/or disease, Defendants were deliberately indifferent and disregarded the potential danger by failing to take reasonable measures and not providing a cell that would allow Plaintiff to sleep on a bottom bunk.” (Id. ¶ 23).

         Plaintiff did not notify the court that service was effected upon Defendants within 120 days after the filing of the complaint, and he was ordered to show cause why the complaint should not be dismissed without prejudice pursuant to Fed.R.Civ.P. 4(m) and Local Rule 103.8.a. on July 8, 2015. (ECF No. 9). Plaintiff argued that good cause for the delay existed because Plaintiff's counsel had difficulty with the court's electronic filing system (ECF No. 10), and he was granted an extension until August 24 to effect service (ECF No. 11). Plaintiff served the State Treasurer on August 18, 2015. (ECF No. 18). Subsequently, Plaintiff was ordered to show why that “service” constituted service on Defendants. (ECF No. 19). Plaintiff's response was construed as a motion for an extension to serve Defendants, and Plaintiff was granted another sixty days to effect service. (ECF No. 21). The Maryland Office of the Attorney General accepted service on behalf of Defendants Shearin, Bishop, Jr., and Pennington in December 2015. (See ECF No. 22).

         On February 19, 2016, Defendants Shearin, Bishop, Jr., and Pennington moved to dismiss or, in the alternative, for summary judgment. (ECF No. 25). Their motion to dismiss was granted on July 14, 2016. (ECF No. 30). At that time, the court ordered Plaintiff to show cause as to why the complaint should not be dismissed as to Defendant Conner pursuant to Fed.R.Civ.P. 4(m) and Local Rule 103.8.a. (Id.). Plaintiff responded (ECF No. 31), and, on August 1, 2016, the court granted an extension of time to serve Defendant without prejudice to her right to move to vacate the extension as improvidently granted (ECF No. 32). Defendant was served at North Branch on August 4, 2016. (ECF No. 33).

         After receiving her own extensions of time, Defendant filed the instant motion to dismiss or, in the alternative, for summary judgment, on October 6, 2016. (ECF No. 42). Defendant requests that the extension of time to effect service be vacated and the claim dismissed. She also moves to dismiss for failure to state a claim or for summary judgment. Plaintiff filed a response in opposition (ECF No. 47), and Defendant did not reply.

         II. Service of Process

         A. Standard of Review

         Defendant requests that the extension granted to Plaintiff to effect service be vacated and the complaint be dismissed pursuant to Fed.R.Civ.P. 12(b)(5). In deciding whether to grant a Rule 12(b)(5) motion, a court may consider affidavits and materials outside the pleadings. See Davis v. Matroo, No. 5:13-CV-00233-BO, 2013 WL 5309662, at *2 (E.D. N.C. Sept. 19, 2013) (citing Dimet Proprietary, Ltd. v. Indus. Metal Protectives, Inc., 109 F.Supp. 472, 475 (D.Del. 1952)). When a defendant moves to dismiss for insufficient service, “the ...


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