United States District Court, D. Maryland
DEBORAH K. CHASANOW UNITED STATES DISTRICT JUDGE
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”).(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.
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).
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).
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.
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).
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).
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.
Service of Process
Standard of Review
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 ...