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exercising the Court's discretion to extend time for a plaintiff to proffer service based on the gravity of the plaintiff's allegations
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CIVIL ACTION NO. 02-CV-6669
October 24, 2003
MEMORANDUM ORDER
Plaintiff Dennis King ("Plaintiff") brought the instant action alleging constitutional violations and seeking relief under 42 U.S.C. § 1983. Plaintiff named numerous individuals and organizations as defendants, including former Philadelphia Police Commissioner John Timmoney, unknown Philadelphia police officers, the City of Philadelphia, the Montgomery County Sheriffs Department, the Montgomery County District Attorney's Office, unknown individual sheriffs office and prison personnel, the County of Montgomery, and the Commonwealth of Pennsylvania. On March 4, 2003, we ordered the dismissal of all claims against the Commonwealth of Pennsylvania. (Doc. No. 9.) On April 29, 2003, we denied the Motion of Defendant Montgomery County District Attorney's Office to Dismiss Plaintiffs Complaint. (Doc. No. 10.) Presently before the Court is the Motion of Defendants County of Montgomery, Montgomery County Sheriffs Department, and Montgomery County Correctional Facility ("Montgomery County Defendants") to Dismiss Plaintiffs Complaint ("Motion"). (Doc. No. 11.) For the reasons that follow, the Motion will be denied.
I. FACTS
Plaintiffs complaint alleges the following facts regarding the Montgomery County Defendants. Plaintiff was convicted of a felony within the Commonwealth of Pennsylvania, and completed serving his maximum sentence on February 25, 1998. (Compl. ¶ 15.) Plaintiff then commenced serving a consecutive period of probation, and obtained employment in two jobs. (Compl. ¶¶ 16, 20.) On August 10, 2000, Plaintiff completed his shift at Checker's Restaurant and started to walk toward his bus stop. At 10:45 p.m., a Philadelphia police officer stopped Plaintiff and inquired where he was going. Plaintiff cooperated with the officer and explained that he had just left work. Plaintiff was detained at the scene while the officer checked to see if there were any outstanding warrants for Plaintiff. "Upon inquiring with Montgomery County," the officer informed Plaintiff that there was an outstanding warrant for his arrest and Plaintiff was arrested. (Compl. ¶ 26.) After initially transporting Plaintiff to a local police district, the Philadelphia police transported Plaintiff to "a prison within Montgomery County." (Compl. ¶ 26.)
Plaintiff was incarcerated for seventy-five days without a hearing and without explanation. Despite numerous inquiries concerning his incarceration, Plaintiff "was never told anything specific by the Montgomery County Authorities" and claims to have felt "lost in the prison system." (Compl. ¶¶ 28, 29.) Plaintiffs complaint alleges that Montgomery County sheriffs and prison employees, "acting under the direction and control of . . . Montgomery County," violated his right to due process by detaining him without a hearing. The complaint also contends that "pursuant to official policy and custom . . . Montgomery County, knowingly, recklessly or with gross negligence failed to instruct, supervise, control or discipline on a continuing basis . . . sheriffs and/or prison employees in their duties to refrain from," inter alia, harassment, unlawful arrest, assault, and unlawful detainment. (Compl., Count V ¶ 3(a)-(i).) Plaintiff further alleges that "Montgomery County, directly or indirectly . . . approved or ratified the unlawful, deliberate, malicious, reckless and wanton conduct of Defendants . . . Montgomery County Sheriffs and Prison Employees." (Compl., Count V ¶ 6.)
Sometime after being incarcerated for more than a month, Plaintiff hired an attorney who filed a habeas corpus petition in the Montgomery County Court of Common Pleas. At the hearing on Plaintiffs habeas petition, the judge inquired as to "why the Plaintiff had been incarcerated at all and, more particularly, why he had been held for so long without a hearing." (Compl. ¶ 32.) The district attorney was unable to explain why this had occurred. The judge ordered that Plaintiff be released immediately and Plaintiff was released the following day.
Plaintiff claims that as a direct result of this incarceration, he lost both of his jobs, has been unable to find new employment, and has been forced to seek public assistance.
II. NATURE AND STAGE OF PROCEEDINGS
Plaintiff originally filed an action in this Court under No. 01-CV-3796, based upon the same facts and circumstances alleged in the instant complaint and asserting the same claims. In that action, we dismissed all claims against the Philadelphia Police Department with prejudice, and dismissed claims against Defendant Timmoney without prejudice. King v. City of Philadelphia. No. 01-CV-3796, Doc. No. 8, Order filed Oct. 30, 2001. Also in that action, we dismissed Plaintiffs complaint as to the County of Montgomery, the Montgomery County Sheriff, the Montgomery County Correctional Facility, and the Montgomery County District Attorney's Office, granting their collective motion to dismiss as uncontested. King v. City of Philadelphia. No. 01-CV-3796, Doc. No. 15, order filed Dec. 31, 2001. On January 22, 2002, Plaintiff filed a motion to amend his original complaint. We did not have opportunity to rule on that motion before Plaintiff filed the instant complaint. The two actions were consolidated and Plaintiffs motion to amend his complaint in No. 01-CV-3796 was denied as moot. King v. City of Philadelphia. No. 01-CV-3796, Doc. No. 22, Order filed Sept. 30, 2002. On September 20, 2003, the Montgomery County District Attorney's Office filed a Motion to Dismiss Plaintiffs complaint. The motion was denied. (Doc. No. 10.)
Now, Defendants County of Montgomery, Montgomery County Sheriffs Department and Montgomery County Correctional Facility have filed a Motion to Dismiss Plaintiffs complaint with prejudice pursuant to Rule 12(b)(5) and 12(b)(6) of the Federal Rules of Civil Procedure. The Montgomery County Defendants argue that Plaintiff failed to serve them within the time allowed under Rule 4(m). They also argue that Plaintiff failed to identify a specific custom or policy of the Montgomery County Defendants that caused a violation of his constitutional rights, as required in § 1983 claims against municipalities.
Rule 4(m) provides:
If service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice of the plaintiff, shall dismiss the action without prejudice as to that defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend time for service for an appropriate period.
FED. R. Civ. P. 4(m).
III. LEGAL STANDARD
When considering a motion to dismiss a complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), this Court must "'take all the well pleaded allegations as true, construe the complaint in the light most favorable to the plaintiff,' and determine whether, under any reasonable reading of the pleadings, the plaintiff may be entitled to relief." Colburn v. Upper Darby Township, 838 F.2d 663, 665-66 (3d Cir. 1988) (quoting Estate of Bailey by Pare v. County of York, 768 F.2d 564, 565 (3d Cir. 1985)). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff.Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). Nevertheless, a court need not credit a plaintiffs "bald assertion" or "legal conclusions" when deciding a motion to dismiss. Morse v. Lower Merion Sch. Dist. 132 F.3d 902, 906 (3d Cir. 1997).
Rule 12(b)(6) provides that:
Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except the following defense may at the option of the pleader be made by motion: . . . (6) failure to state a claim upon which relief can be granted. . . .
FED. R. Civ. P. 12(b)(6).
When reviewing a motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5), we have "broad discretion to either dismiss the plaintiffs complaint for failure to effect service or to simply quash service of process." Umbenhauer v. Woog. 969 F.2d 25, 30 (3d Cir. 1992). However, dismissal of a complaint "is inappropriate when there exists a reasonable prospect that service may yet be obtained. In such instances, the district court should, at most, quash service, leaving the plaintiffs free to effect proper service." Id. Further, when plaintiffs fail to properly serve parties within 120 days of filing, Rule 4(m) requires district courts to "extend time if good cause is shown" and also allows district courts to "dismiss or extend time absent a showing of good cause." Petrucelli v. Bohringer. 46 F.3d 1298, 1306 (3d Cir. 1995).
Rule 12(b)(5) provides that:
Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except the following defense may at the option of the pleader be made by motion: . . . (5) insufficiency of service of process. . . .
FED. R. Civ. P. 12(b)(5).
IV. DISCUSSION
A. Municipal Liability
Addressing first the Montgomery County Defendants' argument that Plaintiff failed to state a claim for which relief can be granted, Plaintiffs claim falls under § 1983, which provides, in part:
Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured . . .42 U.S.C. § 1983.
In Monell v. Dep't. of Soc. Servs. of City of New York, the Supreme Court held that municipal governments are "persons" under § 1983. 436 U.S. 658, 690 (1978) ("Local governing bodies, therefore, can be sued directly under § 1983 for monetary, declaratory, or injunctive relief. . . ."). All of the Defendants in the instant Motion have been recognized as governmental entities that, if certain conditions are met, could be subjected to liability under § 1983. See Laverdure v. County of Montgomery. 324 F.3d 123, 125 (3d Cir. 2003) ("municipalities and other bodies of local government such as Montgomery County are liable under § 1983"); Gravson v. Mawiew State Hosp., 293 F.3d 103, 107 (3d Cir. 2002) (recognizing a jail as a municipality in a § 1983 claim); Bd. of County Comm'rs of Bryan County v. Brown. 520 U.S. 397, 404 (1997) (recognizing a sheriffs department as a municipality in a § 1983 claim).
In the area of municipal liability, the Supreme Court has refused to recognize the doctrine of respondeat superior for § 1983 claims.Monell. 436 U.S. at 694. Nevertheless, the Court has found circumstances in which a local government may be held liable for its acts. In order to distinguish between acts of the municipality and acts of municipal employees, plaintiffs must show that the employee's "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, [has] inflict[ed] the injury." Id
It is clear that a municipality is liable under § 1983 when it acts knowingly and directly to deprive an individual of his or her constitutional rights, but the majority of § 1983 claims are less clear in their causal connection between a defendant's acts and the plaintiffs injury. Brvan County. 520 U.S. at 405 (citingCanton v. City of Harris. 489 U.S. 378 (1989)). Courts emphasize causation so as to avoid holding municipalities liable solely for the acts of its employees. Monell. 436 U.S. at 694. In making this assessment, courts look for municipal action that was taken with deliberate indifference as to its known or obvious consequences.Bryan County. 520 U.S. at 405 (citing Canton. 489 U.S. 378). More specifically, to succeed on a claim of municipal liability under § 1983, a plaintiff must allege that a municipal policy or custom of deliberate indifference existed and was promulgated or acquiesced in by a particular high-level official having policy-making authority. Simmons v. City of Philadelphia. 947 F.2d 1042, 1060-62 (3d Cir. 1991). See also Simril v. Township of Warwick. No. CIV.A.00-5668, 2001 WL 910947, at *2 (E.D. Pa. Aug. 10, 2001) (finding that a plaintiff who has a viable § 1983 cause of action against a municipality must allege that he has suffered injury as a result of a policy or custom of the municipality). In general, deliberate indifference "describes a state of mind more blameworthy than negligence." Farmer v. Brennan. 511 U.S. 825, 835 (1994). Without providing an exacting definition, the Supreme Court has also described deliberate indifference as "lying somewhere between the poles of negligence at one end and purpose or knowledge at the other. . . ."Id. (describing deliberate indifference in a § 1983 claim for an Eighth Amendment violation).
A policy is made when a "decisionmaker possessing final authority to establish policy with respect to the action" issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati. 475 U.S. 469, 481 (1986). A custom is an act "that has not been formally approved by an appropriate decisionmaker," but that is "so widespread as to have the force of law." Bryan County. 520 U.S. at 404.
To the extent that Plaintiff is alleging municipal liability against the Montgomery County Defendants through the actions of their employees — specifically, the "unknown individual sheriffs and prison personnel" defendants — Plaintiff must allege that a "facially lawful municipal action has led an employee to violate a plaintiffs rights . . . [and] that the municipal action was taken with 'deliberate indifference' as to its . . . consequences." Brvan County. 520 U.S. at 407 (citations omitted). In Bryan County, the Supreme Court identified three situations where acts of a municipal employee could be deemed to be the result of a policy or custom of the municipality for whom the employee works. Id. at 417. First, the policy requirement is satisfied "when the appropriate officer or entity promulgates a generally applicable statement of policy and the subsequent act complained of is simply an implementation of that policy."Id. The second situation is "where no rule has been announced as 'policy' but federal law has been violated by an act of the policymaker itself." Id. at 417-18. The third possibility that satisfies the policy requirement is "where the policymaker has failed to act affirmatively at all, so long as the need to take some action to control the agents of the government is 'so obvious, and the inadequacy [of existing practice] so likely to result in the violation of constitutional rights, that the policymake[r] . . . can reasonably be said to have been deliberately indifferent to the need.'" Id. at 418 (quoting Canton v. Harris. 489 U.S. 378, 379 (1989)).
The Montgomery County Defendants seek to dismiss all claims against them, arguing that Plaintiff has failed to properly state a claim of municipal liability against them under § 1983. Defendants contend that Plaintiff has not identified "a single policy or custom of the Montgomery Defendants that caused the alleged deprivation of rights." We disagree. Plaintiffs complaint alleges that both the Montgomery County Defendants, in their official capacities, as well as individual employees of the Montgomery County Defendants, violated federal law by detaining Plaintiff in prison without a hearing. More specifically, Plaintiff claims that Defendants' policy or custom "deprived . . . [him] of his liberty without due process of law, deprived him of his right to counsel, deprived him of equal protection of the law, subjected him to an unlawful seizure of his person and cruelty in violation of the 4th, 5th, 8th, and 14th Amendments of the Constitution of the United States . . ." (Compl. ¶ 39.)
While neither Plaintiffs complaint nor his response clearly identifies a specific affirmative policy or custom of any of the Montgomery County Defendants that caused the alleged constitutional deprivation, it does assert that the Montgomery County Defendants' actions, in the aggregate, "pursuant to official policy and custom," resulted in a deprivation of Plaintiffs rights. For example, Plaintiff states: "Acting under color of State law and pursuant to official policy and custom, Defendants . . . knowingly, recklessly or with gross negligence failed to instruct, supervise, control or discipline on a continuing basis, Defendant police officers, sheriffs, and/or prison employees in their duties to refrain from . . ." (Compl., Count IV, ¶ 3.) Plaintiffs complaint also alleges that "pursuant to official policy and custom . . . Montgomery County, knowingly, recklessly or with gross negligence failed to instruct, supervise, control or discipline . . . sheriffs and/or prison employees in their duties to refrain from," inter alia, harassment, unlawful arrest, assault, and unlawful detainment. (Compl., Count V, ¶ 3.) Plaintiff also alleges that "Montgomery County, directly or indirectly . . . approved or ratified the unlawful, deliberate, malicious, reckless and wanton conduct of Defendants . . . Montgomery County Sheriffs and Prison Employees." (Compl., Count V, ¶ 6.)
While Plaintiffs allegations in his complaint as well as in his Answer to Defendant's Motion are very general, the Third Circuit has held that a § 1983 claim is properly pled if it "'sufficiently alleges deprivation of any right secured by the Constitution.'" Baxter v. Lancaster County. 214 F. Supp.2d 482, 486 (E.D. Pa. 2002) (citingNami v. Fauver. 82 F.3d 63, 65 (3d Cir. 1996)). In the instant case, Plaintiffs pleadings, at a minimum, demonstrate a facial violation of his due process rights.
The case of Johnson v. Crumlish. a case factually similar to the instant case, is instructive. 224 F. Supp. 22 (E.D. Pa. 1963) InJohnson, after a plaintiff was arrested on a bench warrant, he was incarcerated for eight days without being brought before a judge. The Johnson court held: "We can conceive of no more invidious form of totalitarian cruelty than the summary imprisonment of a citizen without a hearing. Due process of law requires that an accused at least receive a hearing before he is punished for his alleged contempt." Id. at 25. The Johnson court reasoned that even though the plaintiffs allegations lacked specificity, they did demonstrate that a violation of constitutional rights occurred sufficient to state a valid § 1983 claim. Id. at 24-25.
We are satisfied that where, as here, it is alleged a person is detained in prison on an outstanding bench warrant without explanation or opportunity for a hearing for seventy-five days, a constitutional violation has been properly plead. To be denied such a basic, inherent liberty cuts to the core of due process rights and must be given this Court's attention.
This is so notwithstanding the absence of specifically-identified policies or unannounced customs. Plaintiffs pleadings plainly allege that, at the very least, one party or individual turned a blind eye to Plaintiffs constitutional due process rights during the seventy-five days he was imprisoned without a hearing. Therefore, the issue is whether, during the course of discovery, Plaintiff can further identify the particular policy or custom that caused the Montgomery County defendants to either affirmatively violate or be 'deliberately indifferent' to the constitutional violation at issue. At this point, it is premature for us to definitively say that no such policy or custom exists.
B. Service of Process
Regarding the Montgomery County Defendants' claim that Plaintiffs service of the complaint was insufficient, we agree, but grant Plaintiff a discretionary extension of time to effect proper service. Plaintiff argues that by signing the return receipt, Defendants waived their right to object and service was therefore properly effectuated. However, in light of the clear guidelines and requirements in Rule 4(d), we cannot hold that Defendants' signature on a certified mail receipt constitutes sufficient waiver of process. Leung v. SHK Mgmt. Inc., No. 98-3337, 1999 U.S. Dist. LEXIS 16383, at *2-3 (E.D. Pa. Oct. 20, 1999) (holding that a party requesting a waiver must put the request in writing). Plaintiff further argues that Defendants agreed to a waiver for the complaint in the first filing of this case, and that waiver is still valid because this Court consolidated the two cases. (Mem. of Law in Supp. of Pl.'s Answer to Mot. of Defs. County of Montgomery, Montgomery County Sheriffs Department and Montgomery County Correctional Facility to Dismiss Pl.'s Compl., at unnumbered page 3.) We are not aware of any case, and Plaintiff has cited none, that allows for waiver of service in one case to apply to a second separately filed case, even where the court ultimately consolidates the two. In addition, Rule 4(d) requires plaintiffs to provide a copy of the complaint when requesting waiver of service. Chase v. Wackenhut Corr. Corp., 97-3337, 1997 WL 401588, at *1 (E.D. Pa. July 15, 1997) (ordering that the waiver of service request be accompanied by the amended complaint). While there are admittedly only minor differences between the first and second complaints, we cannot permit Plaintiff to substitute one complaint for another under Rule 4(d).
In Petrucelli v. Bohringer. the Third Circuit Court of Appeals held that Rule 4(m) requires "a court to extend time if good cause is shown" and allows a court "to dismiss or extend time absent a showing of good cause." 46 F.3d 1298, 1305 (3d Cir. 1995) (interpreting Rule 4(m)). Therefore, the first step in the analysis requires this Court to consider good cause. Petrucelli. 46 F.3d at 1306 (describing the two-part analysis that district courts must conduct before granting an extension of time). Plaintiff claims that service via certified mail is proper.
Plaintiff is simply mistaken in his beliefs. "Absent waiver, the Federal Rules require either personal service or, pursuant to Fed.R.Civ.P. 4(e)(1), service that complies with state law." Boley v. Kaymark. 123 F.3d 756, 757 (3d Cir. 1997). Under Pennsylvania law, service by mail is only permitted where the defendant(s) reside outside of Pennsylvania. PA. R. Civ. P. 404. As Defendants argue, mistake of law does not constitute good cause for an extension. "'[G]ood cause . . . seems to require at least as much as would be required to show excusable neglect . . . as to which simple inadvertence or mistake of counsel or ignorance of the rules usually does not suffice."Green v. Humphrey Elevator and Truck Co., 816 F.2d 877 (3d Cir. 1987) (citing Winters v. Teledyne Movible Offshore. Inc., 776 F.2d 1304, 1306 (5th Cir. 1985)). However, based on thePetrucelli court's holding, we now consider whether this situation calls for an extension.
The circumstances in the present case persuade this Court to exercise its discretion to allow Plaintiff an extension of time. ThePetrucelli court did not provide an exhaustive list of factors a court should consider in deciding whether to exercise its discretion, but that court did state that, "[r]elief may be justified, for example, if the applicable statute of limitations would bar the refiled action. . . ." Petrucelli. 46 F.3d at 1305. However, thePetrucelli court went on to hold that "a district court may not consider the fact that the statute of limitations has run until after it has conducted an examination of good cause." As stated, Plaintiff has failed to show good cause and this Court may now consider the fact that the statute of limitations has run on Plaintiffs claim. ThePetrucelli court explains that while the statute of limitations may enter into a Court's consideration, this fact should not be determinative. "We emphasize that the running of the statue of limitations does not require the district court to extend time for service of process." Id. at 1306. In accordance with this guidance, we consider the statute of limitations as one of several factors in granting Plaintiff an extension of time.
Claims under § 1983 apply the state statute of limitations for personal injury claims. North Star Steel Co. v. Thomas, 515 U.S. 29, 32 (1995) (citing Wilson v. Garcia, 471 U.S. 261 (1985) (holding that § 1983 claims are governed by state statute of limitations for personal injury)). In Pennsylvania, the applicable statute provides a two-year statute of limitations. 42 PA. CONS. STAT. ANN. § 5524(2) (2003). The events in question took place between August 10, 2000, and October 24, 2000. Applying the two-year statute of limitations, Plaintiff would have had until October 24, 2002, to file his complaint. At this point, Plaintiff would be barred from refiling if this Court were to dismiss the complaint without prejudice.
Additional factors that courts consider when determining whether to exercise its discretion include: (1) frivolousness; (2) motivation; (3) objective reasonableness; and (4) deterrence. Pickens v. Intercommunity Agency, Inc., No. CIV.A.96-8415, 1997 WL 727604, at *7 (E.D. Pa. Nov. 21, 1997) (citing Lieb v. Topstone Indus., Inc., 788 F.2d 151, 156 (3d Cir. 1986)). Defendants argue that Plaintiffs claims are frivolous because he fails to state a claim against the Montgomery County Defendants. As discussed above, we reject Defendants' argument that Plaintiff failed to state a claim.
Defendants address the second and third factors by arguing that, as municipal entities, they are easily located for hand delivery and that it is objectively unreasonable for Plaintiff to have thought that certified mail was a proper form of service. (Mem. of Law in Supp. of Mot. to Dismiss Filed by Defs., County of Montgomery, Montgomery County Sheriffs Department and Montgomery County Correctional Facility, at unnumbered page 6.) However, following the reasoning in Pickens, we address these factors in terms of Plaintiff s substantive claims, not in terms of his actions related to service. Pickens WL 727604, at *7 (analyzing plaintiffs motivation in bringing suit and her objective reasonableness for the claims). In light of the gravity of the alleged events in this case, we do not question Plaintiffs motivation or reasonableness in bringing this claim. Plaintiff pleads that he was denied his freedom for seventy-five days and no party involved in this case has yet provided the Court with a reason for Plaintiffs detention. Based on these facts as alleged by the Plaintiff, we find it necessary to exercise our discretion to extend the 120-day time limit in order to allow Plaintiff to properly serve Defendants. A conclusion to the contrary would result in a dismissal of Plaintiff s claim and ignore the importance of the allegations before this Court.
V. CONCLUSION
For the foregoing reasons, we find that Plaintiffs claim must proceed to discovery. Defendants' Motion to Dismiss is hereby denied and Plaintiff is ordered to properly serve Defendants within twenty days.
An appropriate order follows.