Opinion
Civil Action 20-1588
10-14-2021
RASHIKA PORTER, Plaintiff, v. ALLEGHENY COUNTY, et al., Defendants.
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that Defendants Nancy Park, Donald Stechschulte, Jonathan Davis and Maria Chrzastowska be dismissed without prejudice for Plaintiff's failure to serve them within 90 days after the Second Amended Complaint was filed.
II. Report
A. Relevant Background
Plaintiff Rashika Porter, who was a prisoner at the Allegheny County Jail (“ACJ”), brings this counseled civil rights action under 42 U.S.C. § 1983. He claims that he was denied medical treatment and that ACJ officials failed to protect him from contracting the COVID-19 virus, failed to provide him with a gluten-free diet as required by his medical condition, and retaliated against him. In the Second Amended Complaint that was filed in May 2021, he added eight new defendants. However, four of these defendants have not been served and more than 90 days have elapsed since that time. While Plaintiff was then ordered to show cause why these defendants should not be dismissed, he has not responded to this order.
B. Procedural History
Plaintiff filed this case on October 21, 2020, naming only Allegheny County, Corrections Officer Jay Lafever, and nine John Doe defendants. The claims were related to his medical care, denial of a gluten-free diet and retaliatory punishment (ECF No. 1). In March 2021, he filed an Amended Complaint that included additional factual detail but did not assert any new claims or name any additional defendants (ECF No. 23). The named defendants filed answers to the first two complaints.
On May 10, 2021, with the permission of the named defendants, Plaintiff filed a Second Amended Complaint (“SAC”) that added eight new defendants and two additional causes of action (ECF No. 27). Specifically, he added ACJ Warden Orlando L. Harper, Chief Deputy Warden of Healthcare Services Laura Williams, Corrections Officers Hunter Sarver, Louis Del Prete and Jonathan Davis, as well as Medical Director Dr. Donald Stechschulte, Dr. Nancy Park, physician's assistant Maria Chrzastowska, and a nurse identified only as “Michael LNU.” However, given the sole reference to Davis in the SAC, it is unclear whether Plaintiff intended to name him as a defendant. The SAC alleges only that Plaintiff filed a grievance about Dr. Stechschulte's refusal to wear a mask and that a grievance officer “deemed Mr. Porter's grievance regarding Mr. Davis' [sic] July 9, 2020 Dr. Stechschulte's refusal to wear a mask to be ‘invalid.'” (SAC ¶ 127.)
On July 8, 2021, a motion to dismiss was filed by the County, Lafever, Harper, Williams, Sarver and Del Prete (together, the “County Defendants”) (ECF No. 32). The motion was not filed on behalf of Davis, Stechschulte, Park or Chrzastowska. The County Defendants suggested that Stechschulte, Park and Chrzastowska are medical personnel who are employees of Allegheny Health Network. (ECF No. 33 at 2-3.) No appearance has been entered on behalf of Davis.
During a status conference on September 3, 2021, Plaintiff's counsel was asked about whether Davis, Stechschulte, Park, or Chrzastowska had been served. He responded that they had not. On September 30, 2021, an order was entered directing Plaintiff to show cause on or before October 8, 2021 why these individuals should not be dismissed for failure to be served within 90 days. To date, Plaintiff has not responded to this order.
C. Analysis
The Federal Rules of Civil Procedure provide that:
If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.
Fed. R. Civ. P. 4(m). The court must engage in a two-step process in determining whether to dismiss the non-served defendants or grant Plaintiff additional time to effect service. “First, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). Good cause requires good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance with the time specified in the rules. MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). In that case, the Court of Appeals approved of the following three factors to consider: “(1) reasonableness of plaintiff's efforts to serve; (2) prejudice to the defendant by lack of timely service; and (3) whether plaintiff moved for an enlargement of time to serve.” Id. (citation omitted). “[T]he primary focus is on the plaintiff's reasons for not complying with the time limit in the first place.”
The Court of Appeals has indicated that, even if good cause is not shown, other factors may be considered in determining whether an extension of time for service should be granted, including whether the plaintiff is represented by counsel. See Chiang v. U.S. Small Bus. Admin., 331 Fed.Appx. 113, 116 (3d Cir. 2009)
Plaintiff filed the Second Amended Complaint on May 10, 2021, adding Defendants Park, Stechschulte, Davis and Chrzastowska. Ninety days after that was August 8, 2021, but they were not served by that date, nor have they been served since that date. The Court has provided notice to Plaintiff, and he has not responded, much less showed good cause for this failure to serve these defendants. No efforts to serve them have been identified nor did Plaintiff move for an extension of time, even after he was notified that dismissal of these defendants was a possibility. Having concluded that good cause does not exist, the Court has the discretion to either dismiss these defendants or extend time for service. Because Plaintiff is not pro se but is represented by counsel, the Court concludes that these defendants should be dismissed from the case without prejudice for failure to be timely served.
Because August 8, 2021 fell on a Sunday, Plaintiff had until Monday, August 9 to make service. Fed.R.Civ.P. 6(a)(1)(C).
Therefore, it is respectfully recommended that Defendants Park, Stechschulte, Davis and Chrzastowska be dismissed without prejudice.
Litigants who seek to challenge this Report and Recommendation must seek review by the district judge by filing objections by October 28, 2021. Failure to file timely objections will waive the right of appeal.