Free Motion for Order to Show Cause - District Court of Delaware - Delaware

Case 1:07-cv-00031-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : C. A. No. 07-31 - GMS : FIRST CORRECTIONAL MEDICAL, : CORRECTIONAL MEDICAL SERVICES, : GOVERNOR RUTH ANN MINNER, : COMMISSIONER STANLEY W. TAYLOR, : BUREAU CHIEF PAUL W. HOWARD, : MS. GINA WOLKEN, : DR. ALIE, DR. NIAZ, DR. JOHN DOE, : DR. JANE DOE, CORRECTIONAL MEDICAL : SERVICES GRIEVANCE HEARING STAFF, : MS. ROSALIE VARGAS, : JOHN DOE, AND JANE DOE, : : Defendants. : DEFENDANT WOLKEN'S MOTION FOR RULE TO SHOW CAUSE AND/OR MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(5) COMES NOW, Gina Wolken (hereinafter the Defendant) by and through her undersigned attorney, to hereby move for a Rule To Show Cause as to why the case and/or alternatively, why she should not be dismissed from the case pursuant to Fed. R. Civ. P. 41 and/or Fed. R. Civ. P. 12(b)(5) and in support thereof states as follows: 1. Plaintiff filed this complaint alleging Eighth Amendment constitutional WILLIAM JOSEPH WEBB, JR.,

violations under 42 U.S.C. §1983 on January 16, 2007 (D.I. 2).

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2. the complaint.1 3.

Plaintiff named various individual Defendants including Gina Wolken in

Pursuant to the review and screen process set forth in 28 U.S.C. §1915 and

§1915A, the Court dismissed many of the Plaintiff's claims and many of the various Defendants on May 7, 2007 (D.I. 9). Plaintiff was permitted to proceed against Defendants First Correctional Medical, Correctional Medical Services, Governor Ruth Ann Miner, Dr. Muhammed Niaz, Dr. Sitta Gombeh-Alie, Gina Wolken, and other John and Jane Does (D.I. 9 at pg 5)) for the "medical needs" claims alleged in the complaint. 4. The Order dated May 7, 2007 (D.I. 9) directed Plaintiff to provide the US

Marshal with USM 285 forms for each of the remaining Defendants within 120 days of May 7, 2007. The Order states that failure to do so may result in the complaint being dismissed or the defendant(s) being dismissed pursuant to Fed. R. of Civ. P. 4(m). 5. 6. The 120 days expired on or about October 4, 2007. On or about May 14, 2007, Plaintiff submitted USM 285 forms for

Defendants (D.I. 10). On May 17, 2007, the Clerk of the Court sent Plaintiff a letter stating that "The Court has received all required USM 285 forms" (D.I. 11). There is no record in the docket

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On July 18, 2007 the undersigned firm included Gina Wolken in the Answer to the Complaint (DI 26) that was filed with the court. The undersigned later learned that Gina Wolken did not work for CMS at anytime after June 2002. The undersigned firm has been unable to contact Ms. Wolken (at her last known address) and has been continuing to represent her interest as it felt it had a professional obligation to protect her rights until such time as the status of her continue representation could be resolved.

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that the USM 285 was ever received back from Defendant Wolken, either executed and/or unexecuted.2 7. Defendant, Wolken contends that the USM 285's that was submitted by

Plaintiff was ineffective because it only contained the "employment" address of the individual Defendants he was trying to serve. As Wolken never worked for CMS after it took over as the provider of medical services in July 2007 any attempt to serve her at CMS, or through any representative or attorney CMS, is ineffectual to comply with the 120 day requirement of the May 7, 2007 Order. (See Affidavit attached hereto as Exhibit "B") 8. Additionally, and perhaps more importantly, any attempt to serve the

individual defendant at their place of employment is contrary to the service of process rules, which require personal service by leaving copies thereof at the individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e). See also, Super. Ct. Civ. R. 4(f)(1)(I) 9. Since Plaintiff did not provide the US Marshal with any additional

information about where to serve the Defendant Wolken and there is no signed Waiver of Service in the docket, personal service has not been achieved or completed to date with respect to Defendant Wolken. In Para v. Correctional Medical Service, et. al. 2002 Del. Super. LEXIS 248 (Del. Super. Oct. 3, 2002) (Exhibit "C" attached hereto) the Superior Court dismissed an

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Prior to filing this motion, the undersigned attorney reviewed the file at the US Marshal's office to investigate the status of the USM 285 for Defendant Wolken. This review revealed that there is a notation on the USM 285 stating "Rep Patrick Rock" (Exhibit "A"). However, there is no indication that Service of Process was accepted by Mr. Rock, as there does not appear to be a signed Waiver of Service in the file. Although an answer was filed on behalf of Defendant Wolken (D.I. 26) the issue of insufficiency of service of process and lack of jurisdiction was preserved.

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inmates complaint for his failure to achieve service of process within the 120 days required by Super. Ct. Civ. R. 4(j). In Paras, the Plaintiff attempted to serve the individual defendants by leaving a copy with the receptionist at their place of employment. Since Plaintiff failed to serve the complaint either personally or by leaving a copy at the individual doctors dwelling house or usual place of abode with someone of suitable age, the Court dismissed Plaintiff's case for insufficiency of service of process upon the individual Defendants. 10. The purpose behind the USM 285 form is to minimize the delay and

expense associated with completing service of process in a civil matter in District Court. However, this streamlined process only works when the Plaintiff provides the US Marshal with good information as to the address of the Defendant he is trying to serve. The expedited process should not result in the Plaintiff being able to provide outdated and wrong information to the US Marshal, when effectuating service of process, simply to meet a 120 day deadline imposed by the court. 11. While the undersigned concedes that the service of process under USM

285 is to be a cooperative process, they contend that said cooperation does not require Plaintiff's to forego defenses based on procedural grounds, in the event, the Plaintiff fails to provide sufficient service information. Exhibit "A" indicates that Plaintiff provided the US Marshal with the corporate address for Defendant Wolken in or about May 2007 . The undersigned firm had not yet even entered an appearance in this case for any defendant at that time and Plaintiff should have made a better effort to find a better service address for this Defendant from the start. This failure to find a better service of process address for Defendant Wolken (or even to determine if she worked for CMS) is what caused Defendant Wolken not to be served in this case. Instead,

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Plaintiff has now used the "threat of suit" against the undersigned (dealt with in a Response filed simultaneously herewith) to achieve his obligations of service of process in this case. 12. While, pro se Plaintiffs' are provided some latitude in navigating court

procedure, the Defendant is still (as a Citizen of the United States) entitled to personal service of process either through properly addressed USM 285's or traditional personal service. If Plaintiffs are permitted to provide stale or wrong information in the USM 285 the entire service of process requirement is defeated, and there are no protections afforded to defendants wrongfully named and/or improperly served in civil litigation. In Rochon v. Dr. Mark Dawson, 828 F.2d 1107 (5th Cir. 1987), the Court affirmed the dismissal of an inmate's claim against an individual doctor due to insufficient service of process, as the Plaintiff attempted to serve the individual Doctor through his place of employment. The Court ruled that "[w]hile Rochon and other incarcerated plaintiffs proceeding in forma pauperis may rely on service by the U.S. Marshals, a plaintiff may not remain silent and do nothing to effectuate such service. At a minimum, a plaintiff should request service upon the appropriate defendant and attempt to remedy any apparent service defects of which a plaintiff has knowledge". Id. @ 1110. 13. Defendant acknowledges this Court's ruling in Johnson v. Medical

Department, et. al 2004 U.S. Dist. LEXIS 10379 (D. Del. March 31, 2004) (Exhibit "D" attached hereto) wherein the Court ruled that the inmate's good faith effort to comply with Fed. R. Civ. P. 4, albeit, ultimately insufficient service of process, did not warrant a dismissal of the corporate Defendant in that case, because the indication of "medical dept" on the 285 was enough to apprise the US Marshal's office that he was trying to serve the corporate defendant CMS. Id. at *7. However, in this instant case, it is the named individual who is making this motion, more than 1 year after the case was filed. Ultimately, in Johnson the individual

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defendants were dismissed from the case in response to motions to dismiss for insufficient service or process. 14. In Dickens v. Dover City Police Department, et al., 2007 U.S. Dist. LEXIS

48188 *11 (D. Del. 2007) (Exhibit "E" attached hereto) the Court dismissed the complaint against the individual police officers because the Plaintiff failed to show good cause for his failure to serve them within the 120 day time period. 15. Since the docket is void of any reference to having received a signed USM

285 back from Defendant Wolken (either executed or unexecuted), Plaintiff was on notice that service has been lacking in this matter. He has not taken any action to correct the insufficient service of process (other than to threaten suit against the undersigned) and therefore, the complaint as to Defendant Wolken should be dismissed. 16. The Court is already over-burdened with pending litigation. The failure to

complete the service of process in this case, is preventing the pleadings from being closed and the case from being put on a Scheduling Order track with properly served parties to this litigation. 17. Additionally, this motion is being filed simultaneously with the

undersigned's response to the April 17, 2008 "demanding addresses or else" letter (DI 103) so that the issue of service of process on this Defendant can be ultimately decided by the Court. It is the intent of this motion to finally resolve all issues regarding service of process so that the matter can move forward without continued threats of ancillary civil litigation by Plaintiff in order for him to get his way in this litigation.

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WHEREFORE, Defendant Gina Wolken respectfully requests the Court to issue a Rule to Show Cause to the Plaintiff as to why the case and/or the affected Defendants should not be dismissed from the case at this time. Alternatively, Defendant respectfully request that the Court grant and order dismissing Defendant Wolken from the case for lack of service of process pursuant to Fed. R. Civ. P. 12(b)(5). MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. Date: 5/2/08 /s/ Eileen M. Ford, Esquire Eileen M. Ford, Esquire (ID #2870) Megan T. Mantzavinos, Esquire (ID #3802) 913 N. Market Street, 8th Floor Wilmington DE 19801 (302) 658-6538 Attorneys for Defendant Wolken

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., : : Plaintiff, : : v. : : FIRST CORRECTIONAL MEDICAL, : CORRECTIONAL MEDICAL SERVICES, : GOVERNOR RUTH ANN MINNER, : COMMISSIONER STANLEY W. : TAYLOR, BUREAU CHIEF PAUL W. : HOWARD, MS. GINA WOLKEN, : DR. ALIE, DR. NIAZ, DR. JOHN DOE, : DR. JANE DOE, CORRECTIONAL : MEDICAL SERVICES GRIEVANCE : HEARING STAFF, MS. ROSALIE : VARGAS, JOHN DOE, AND JANE DOE, : : Defendants. :

C. A. No. 07-31 ­ GMS TRIAL BY JURY OF TWELVE DEMANDED

NOTICE OF MOTION PLEASE TAKE NOTICE that the attached Motion for Rule to Show Cause and/or Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5) will be presented and heard at the convenience of the court.

Marks, O'Neill, O'Brien & Courtney, P.C. By: _ /s/ Eileen M. Ford_______ Eileen M. Ford, Esquire/ID No. 2870 Megan T. Mantzavinos, Esquire/ID No. 3802 913 North Market Street, #800 Wilmington, DE 19801 (302) 658-6538 Attorneys for Defendant Wolken

Date: 5/2/08

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., : : Plaintiff, : : v. : C. A. No. 07-31 - GMS : FIRST CORRECTIONAL MEDICAL, : CORRECTIONAL MEDICAL SERVICES, : GOVERNOR RUTH ANN MINNER, : COMMISSIONER STANLEY W. TAYLOR, : BUREAU CHIEF PAUL W. HOWARD, : MS. GINA WOLKEN, : DR. ALIE, DR. NIAZ, DR. JOHN DOE, : DR. JANE DOE, CORRECTIONAL MEDICAL : SERVICES GRIEVANCE HEARING STAFF, : MS. ROSALIE VARGAS, : JOHN DOE, AND JANE DOE, : : Defendants. : PROPOSED ORDER UPON CONSIDERATION of Defendant Wolken's Motion for Rule to Show Cause and/or Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(5) and any responses thereto, IT IS HEREBY ORDERED this ____ day of _______________, 2008 that said motion is GRANTED and Gina Wolken is hereby dismissed from the case, with prejudice, for insufficiency of service of process.

Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, CORRECTIONAL MEDICAL SERVICES, GOVERNOR RUTH ANN MINNER, COMMISSIONER STANLEY W. TAYLOR, BUREAU CHIEF PAUL W. HOWARD, MS. GINA WOLKEN, DR. ALIE, DR. NIAZ, DR. JOHN DOE, DR. JANE DOE, CORRECTIONAL MEDICAL SERVICES GRIEVANCE HEARING STAFF, MS. ROSALIE VARGAS, JOHN DOE, AND JANE DOE, Defendants. : : : : : : : : : : : : : : : : : : :

C. A. No. 07-31 - GMS

CERTIFICATE OF SERVICE I, Eileen M. Ford, Esquire, hereby certify that on May 2, 2008, I electronically filed the a Motion for Rule to Show Cause and/or Motion to Dismiss Pursuant to FRCP 12(b)(5) with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following: Catherine Damavandi, Esquire. I have served via first class mail two copies of foregoing to the Pro Se Plaintiff: William Joseph Webb, Jr., pro se SBI # 256056 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977 /s/ Eileen M. Ford__________ Megan T. Mantzavinos, Esquire (ID No. 3802) Eileen M. Ford, Esquire (ID No. 2870) Marks, O'Neill, O'Brien & Courtney, P.C. 913 Market Street, #800 Wilmington, DE 19801 (302) 658-6538 Attorneys for Defendants Wolken

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