Opinion
C.A. No. 00-104 T
March 5, 2002
Charles A. Austin, Pro Se
Jay M. Elias, Rebecca N. Warr, Esq.
Report and Recommendation
Charles A. Austin, pro se, an inmate confined at the Adult Correctional Institution ("ACI"), Cranston, Rhode Island, has filed an Amended Complaint pursuant to 42 U.S.C. §§ 1983 and 1985, alleging a violation of the First and Eighth Amendments. Plaintiff names as defendants numerous officials and personnel at the ACI.
This matter is currently before the court on the motion of the R.I. Department of Corrections, the Adult Correctional Institution, Joseph Marrocco, Thomas Partridge, Jake Gadsen and Jeffrey Laurie (hereafter collectively referred to as the "defendants") to dismiss, pursuant to Rules 12(b)(2), (5) and (6) of the Federal Rules of Civil Procedure. Plaintiff has not objected. For the reasons that follow, I recommend that the defendants' motion be granted. A. Rules 12(b)(2) and (5) Motions.
Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6). In said motion, they incorporate a previously filed motion to dismiss pursuant to Rules 12(b)(2) and (5). Thus, the Court will consider all three grounds for dismissal.
of the thirteen defendants named in the amended complaint, only three remain: Erlinda B. Vorasingha, M.D., Laura Townsend, and William Chang, M.D.
On March 10, 2000, plaintiff Charles A. Austin filed a complaint with this Court. Thereafter, on April 17, 2000, plaintiff filed an amended complaint with the Court. Plaintiff however, never served the amended complaint on the defendants. The defendants then moved to dismiss. The district court denied the motion and gave the plaintiff additional time, until July 16, 2001, in which to serve the amended complaint. To the date of this writing, plaintiff still has not effected service of the amended complaint. Thus, the defendants have renewed their motion to dismiss, pursuant to Fed.R.Civ.P. 12(b)(2) and (5).
Rule 12(b)(2) of the Federal Rules of Civil Procedure provides for the dismissal of actions where there is a lack of personal jurisdiction. See Fed.R.Civ.P 12(b)(2). A federal court is without personal jurisdiction over a defendant unless the defendant has been served with process in accordance with Fed.R.Civ.P. 4. Brooks v. Richardson, 478 F. Supp. 793 (S.D.N.Y. 1979). Here, the plaintiff did not serve the defendants with a copy of the amended complaint. Thus, the plaintiff failed to adequately serve the defendants in accordance with Fed.R.Civ.P. 4. Accordingly, this court lacks personal jurisdiction over the defendants, and defendants' motion pursuant to Fed.R.Civ.P. 12(b)(2) should be granted. I so recommend.
Rule 12(b)(5) of the Federal Rules of Civil Procedure provides for a dismissal of actions where there is an insufficiency of service of process. See Fed.R.Civ.P. 12(b)(5). Rule 12(b)(5) challenges the mode of the delivery of the process, or the lack of delivery of the summons and the complaint. See Crane v. Battelle, 127 F.R.D. 174, 176 (S.D.Cal. 1989). Here, plaintiff failed to serve a copy of the amended complaint on the defendants. Since plaintiff has failed to serve the defendants with the amended complaint, a dismissal under Rule 12(b)(5) is appropriate. I so recommend.
B. Rule 12(b)(6) Motion.
A motion made pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the factual underpinnings of a complaint. Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of actions which fail to state a claim upon which relief can be granted.See Fed.R.Civ.P. 12(b)(6).
In ruling on a motion filed under Rule 12(b)(6), the court must "accept the well pleaded averments of the ***complaint as true, and construe these facts in the light most favorable to the [plaintiff]." Chongris v. Board of Appeals, 811 F.2d 36, 37 (1St Cir. 1987). A Rule 12(b)(6) motion will only be granted when, viewed in this manner, it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-6, 78 S.Ct. 99, 102 (1957). Thus, in ruling on a Rule 12(b)(6) motion, the pertinent inquiry is whether plaintiffs complaint sets forth sufficient factual allegations which, if proven, would support his claims of a deprivation of federal rights.
Here, plaintiffs amended complaint is quite lengthy: it is 15 pages long, with over sixty-five numbered paragraphs (there are well more than sixty five, as plaintiff has subparagraphs and left some paragraphs completely unnumbered); it invokes 42 U.S.C. §§ 1983 and 1985, and the First and Eighth Amendments.
Defendants' memorandum in support of their motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is quite the opposite. It cites no factual recitation, no points of authority, nor does it contain any legal reasoning.
Local Rule 12(a) provides, in pertinent part: "[t]he movant in every motion . . . (except a few certain excepted motions, not at issue here) shall serve and file with the motion a separate memorandum of law containing the authorities and reasoning supporting his position . . . ." Local Rule 12(a) (emphasis added). While the Court appreciates memoranda that are direct and to the point, the defendants' memorandum is devoid of any legal analysis whatsoever. Defendants cite no relevant controlling authority on § 1983, § 1985, the First Amendment or the Eighth Amendment. Thus, the defendants have failed to comply with Local Rule 12(a).
However, plaintiff has failed to file an opposition to motion to dismiss. See Local Rule 12(a). Accordingly, since the motion is unopposed, I recommend that defendants' motion to dismiss pursuant to Rule 12(b)(6) be granted.
Conclusion
Accordingly, for the reasons stated above, I recommend that defendants' motion to dismiss be granted pursuant to Fed.R.Civ.P. 12(b)(2), (5) and (6). Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart. Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).