Opinion
C/A No. 8:18-cv-1811-MGL-JDA
12-07-2018
Michael Alexander Collins, Plaintiff, v. Southern Health Partners, Dr. Garnett, Brandy Galloway, Nurse Angel, S. Donaldson, B. Dehayes, Nurse Cindy, Doctor Williams, Defendants.
REPORT AND RECOMMENDATION
Michael Alexander Collins ("Plaintiff"), proceeding pro se and in forma pauperis, commenced this civil action pursuant to 42 U.S.C. § 1983 against the above-named Defendants by filing a Complaint alleging violations of his civil rights while he was a pretrial detainee at the Aiken County Detention Center. [Doc. 1.] Plaintiff is an inmate in the custody of the South Carolina Department of Corrections and is currently incarcerated at the Kirkland Correctional Institution. [See Doc. 69.] This matter is before the Court on Defendant Nurse Cindy's motion to quash service and/or to dismiss for ineffective process and ineffective service of process. [Doc. 42.] In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02, D.S.C., this matter was referred to the assigned United States Magistrate Judge for pretrial handling. For the reasons below, it is recommended that the Court grant the motion to quash, deny the motion to dismiss, and order Defendant Nurse Cindy's attorney to either accept service on behalf of Defendant Nurse Cindy or provide the Court with the last known address where Defendant Nurse Cindy may be served.
The Defendants listed in the caption above represent the current parties in this litigation. Defendant Aiken County Detention Center was dismissed from this action on August 30, 2018. [Doc. 33.] Plaintiff has appealed that dismissal. [Doc. 38.] However, the case remains pending against the other Defendants. See Int'l Refugee Assistance Project v. Trump, No. TDC-17-0361, 2017 WL 1315538, at *1 (D.Md. Apr. 10, 2017) (explaining that, when there is an interlocutory appeal from a district court order, "the district court may . . . proceed with matters outside the 'interlocutory order' on appeal" ) (citing Columbus-Am. Discovery Grp. v. Atl. Mut. Ins. Co., 203 F.3d 291, 301-02 (4th Cir. 2000)); Dicks v. Thomas, No. 9:05-3091-HFF-GCK, 2006 WL 1875922, at *1 (D.S.C. July 5, 2006).
BACKGROUND
Plaintiff filed this action alleging Defendants violated his Eighth Amendment rights. [Doc. 1 at 7.] Specifically, the Complaint appears to assert claims for deliberate indifference to a serious medical need. [Id.] In sum, Plaintiff alleges that he has been enduring excruciating tooth pain that has resulted in an ongoing infection that Defendants have failed to properly treat and remedy. [Doc. 1-1 at 2-9.] Plaintiff seeks money damages, among other relief, as a result of Defendants' alleged deliberate indifference to his medical needs. [Id. at 9-10.]
In the Complaint, Plaintiff identified Defendant Nurse Cindy as a health care provider, employed by Defendant Southern Health Partners, who provided health care to Plaintiff in October 2017 while Plaintiff was an inmate at the Aiken County Detention Center. [Doc. 1 at 6; Doc. 1-7 at 7-8.] This Court entered an Order on August 15, 2018, to authorize the issuance and service of process for certain Defendants in this action, including Defendant Nurse Cindy. [Doc. 24.] On September 14, 2018, service of process for Defendant Nurse Cindy was returned as executed by the United States Marshal, indicating that Defendant Nurse Cindy was served by certified mail. [Doc. 36 at 5; Doc. 36-1 at 1.]
On September 17, 2018, Defendant Nurse Cindy, in a limited capacity through counsel, filed a motion to quash service and/or to dismiss for ineffective process and ineffective service of process. [Doc. 42.] As explained in the motion, the Summons and Complaint in this matter were served on Defendant Nurse Cindy via certified mail to Southern Health Partners, Inc., at 2030 Hamilton Place Blvd. in Chattanooga, Tennessee, on or about August 27, 2018. [Id. at 1.] However, while the Proof of Service indicates that "Kim Davis" signed for the mail, Southern Health Partners could find no record of an employee named "Cindy" at the Aiken County Detention Center during the time period at issue in this case. [Id.] The motion argues that Defendant Nurse Cindy was not physically served with the Summons and Complaint and that Kim Davis has not been established as an agent authorized to accept service for Defendant Nurse Cindy. [Id. at 2-3.] As such, the motion seeks to quash the Proof of Service and to dismiss Defendant Nurse Cindy pursuant to Rules 12(b)(4) and (5) of the Federal Rules of Civil Procedure. [Id. at 3.]
Thereafter, on October 8, 2018, Defendant Nurse Cindy supplemented her motion. [Doc. 53.] According to the supplemental filing, Southern Health Partners "has now located information of a travel nurse from Tennessee who is believed to have served as a substitute at the Aiken County Detention Center for approximately four days during the time period at issue - July 30, 2017 to August 2, 2017." [Id. at 1.] However, "[Defendant] Nurse Cindy maintains her position regarding service as set forth in the original motion" and again requests that the Service of Process be quashed and the action be dismissed as to Defendant Nurse Cindy. [Id.]
DISCUSSION
Motion to Quash
Rule 4(e) governs the service of process upon individuals in the United States and provides that service may be accomplished pursuant to the law of the state in which the district court sits or where service is made or by delivering a copy of the summons and complaint to the defendant personally, by leaving a copy of each to a person of suitable age and discretion then residing at the defendant's dwelling or usual place of abode, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e). "Under Rule 4(e), the actual acceptance of service by an employer does not necessarily indicate that service was properly effectuated on the individual defendant." Reinhold v. Tisdale, No. 8:06-cv-3311-MBS-BHH, 2007 WL 2156661, at *1-2 (D.S.C. Apr. 30, 2007), Report and Recommendation adopted by 2007 WL 2173368 (D.S.C. July 26, 2007) (explaining that, even where a defendant police officer had authorized his captain to accept legal documents on behalf of the defendant when the defendant was an employee under the captain's command, there was no evidence that the defendant intended to confer authority upon the captain to continue to act as his agent while the defendant was on leave and not under the captain's command); see also Wright and Miller, Federal Practice and Procedure Civil 3d § 1097 (2002) ("[T]he federal courts have held that claims by an agent of having authority to receive process or the fact that an agent actually accepts process is not enough to bind the defendant to the court's jurisdiction; there must be evidence that the defendant intended to confer the authority upon the agent . . .").
Here, it is not clear whether "Kim Davis" was authorized as an agent to accept service on behalf of Defendant Nurse Cindy. Importantly, the Summons and Complaint were sent via certified mail with restricted delivery to "Nurse Cindy." [Doc. 36-1 at 1.] Further, there is nothing in the record showing that Defendant Nurse Cindy has actual notice of this action. Thus, it appears that service of process in this case was inadequate, and the Proof of Service therefore should be quashed.
Motion to Dismiss under Rule 12(b)(4) and (5)
Defendant Nurse Cindy further asserts that she should be dismissed from the case because of insufficient process and insufficient service of process. Under Rule 12(b)(4) and (5), a defendant may move to dismiss a complaint where service of process failed to comply with the requirements of Rule 4 of the Federal Rules of Civil Procedure. Whether to dismiss a case under Rule 12(b)(4) or (5) is within the discretion of the Court. Reinhold, 2007 WL 2156661, at *3 (citing Dimensional Commc'ns, Inc. v. OZ Optics, Ltd., 218 F. Supp. 2d 653, 655 (D.N.J. 2002)). "Ordinarily, dismissal is proper when there is prejudice to the defendant or where proper service is unlikely to be accomplished." Id. (citing Curcuruto v. Cheshire, 864 F.Supp. 1410, 1411 (S.D. Ga. 1994)). Noncompliance with Rule 4, however, does not mandate dismissal where the necessary parties have received actual notice of a suit and where they have not been prejudiced by the technical defect in service. See Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963). "When there is no prejudice and service can be accomplished, courts generally will quash the insufficient service and allow a plaintiff to perfect service." Reinhold, 2007 WL 2156661, at *3 (citing Umbenhauer v. Woog, 969 F.2d 25, 30-31 (3d Cir. 1992); Pell v. Azar Nut Co., 711 F.2d 949, 950 n. 2 (10th Cir. 1983)).
As stated, service of process in this case was inadequate. Moreover, the time limit for service in this case has expired. See F. R. Civ. P. 4(m).
Here, because Plaintiff has been granted in forma pauperis ("IFP") status pursuant to 28 U.S.C. § 1915, service requirements fall under the holding of Greene v. Holloway, 210 F.3d 361 (4th Cir. 2000). In Greene, the Fourth Circuit Court of Appeals cited with approval the case of Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995), which held that
[a] prisoner need furnish the Marshals Service only with information necessary to identify the defendants . . . . [O]nce the former prison employee is identified, the Marshals Service should be able to ascertain the individual's current address and, on the basis of that information, complete service. The prisoner may rely on the Marshals Service to serve process, and the Marshals Service's failure to complete service is automatically "good cause" to extend time for service under Rule 4(m) . . . . Sellers [v. United States, 902 F.2d 598 (7th Cir.1990)] is grounded in the belief that use of marshals to effect service alleviates two concerns that pervade prisoner litigation, state or federal: 1) the security risks inherent in providing the addresses of prison employees to prisoners; and 2) the reality that prisoners often get the "runaround" when they attempt to obtain information through governmental channels and needless attendant delays in litigating a case result.Id. at 713 (internal citations omitted). "As such, under Greene, the United States Marshals Service, if provided 'sufficient information to identify the defendant,' must expend a reasonable investigative effort to locate the defendant at his new address." Fulks v. Metts, No. 2:06-cv-0980-PMD-RSC, 2007 WL 2104845, at *10 (D.S.C. July 17, 2007) (quoting Greene, 210 F.3d at 361); see also Karlsson v. Rabinowitz, 318 F.2d 666, 668-69 (4th Cir. 1963). As noted in other decisions in this District, a Marshal's attempted delivery of service to a named defendant's place of former employment is insufficient to discharge his duty to "expend a reasonable investigative effort to locate a [d]efendant once he is properly identified." Lucas v. Eagleton, No. 0:05-cv-2007-TLW-BM, 2006 WL 1663810, at *2 (D.S.C. June 8, 2006) (holding that a Marshal had a duty to make a reasonable attempt to serve two defendants once determining that they were no longer employed by the South Carolin Department of Corrections). In Lucas, the Court reasoned that it was understandable that the defendants, who were "apparently no longer employed by the Department of Corrections," did not wish to provide their personal addresses to the plaintiff. Id. at *3. However, the Court held that "in light of the holdings of Graham and Greene, and the fact that Plaintiff has been granted IFP status in this case, these Defendants' motion to dismiss on the ground stated should be denied, with further service to be attempted by the United States Marshal." Id. at *3; see also Fulks, 2007 WL 2104845, at *10-11.
Under the facts and procedural history of this case, the Court finds that the Marshal should make further attempts to personally serve Defendant Nurse Cindy. Defendant Nurse Cindy has not alleged any prejudice that would result from granting Plaintiff an extension of time to serve her or why service cannot be completed. Plaintiff has been granted IFP status in this case and has attempted to properly identify Defendant Nurse Cindy, providing her first name, employer's name, and employer's address, in an attempt to effect service. The Court authorized service, and the Marshal attempted service, returning the summons marked executed. Further, Defendant Nurse Cindy explained in her motion that, initially, Southern Health Partners could find no record of an employee nurse named "Cindy" at the Aiken County Detention Center during the time period at issue [Doc. 42 at 1], but later noted in a supplemental filing that Southern Health Partners "located information of a travel nurse from Tennessee who is believed to have served as a substitute at the Aiken County Detention Center" during the relevant time period [Doc. 53 at 1]. Therefore, it appears that Plaintiff may be able to perfect service by serving the proper Nurse Cindy with the Summons and Complaint. Accordingly, the Court should grant Plaintiff an extension of time within which to serve Defendant Nurse Cindy and should authorize further attempts to serve Defendant Nurse Cindy by the United States Marshal.
The Court notes that Nurse Cindy has joined a motion for summary judgment filed by other Defendants in this action without waiving her motion to quash service and dismiss for insufficient service of process. [See Doc. 71 at 1, n.1.]
The Court notes that Amy Harmon Geddes, Esquire, represents the other Defendants named in this action. Accordingly, within the time period for filing objections to this Report and Recommendation, i.e. fourteen (14) days, Attorney Geddes is directed (a) to consult with Southern Health Partners, Nurse Cindy, and/or the Aiken County Detention Center and (b) to notify this Court in writing as to whether she will either: (1) accept service of process of the summons and complaint on Defendant Nurse Cindy's behalf or (2) notify the Court in writing filed under seal of the current or last known address for Defendant Nurse Cindy, which she should be able to learn from Southern Health Partners.
RECOMMENDATION
Based on the foregoing, it is recommended that Defendant Nurse Cindy's motion to quash service be GRANTED and that Defendant Nurse Cindy's motion to dismiss be DENIED.
Attorney Geddes should be directed to advise the Court in writing within the time period for filing objections to this Report and Recommendation as to whether she is authorized to accept service on behalf of Defendant Nurse Cindy. If the District Court adopts this report, and Attorney Geddes advises the Court that she is not authorized to accept service, a separate order will be issued directing service on Defendant. Plaintiff's attention is directed to the important notice on the next page.
IT IS SO RECOMMENDED.
s/ Jacquelyn D. Austin
United States Magistrate Judge December 7, 2018
Greenville, South Carolina
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
300 East Washington Street, Room 239
Greenville, South Carolina 29601
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).