Free Motion to Dismiss Party - District Court of Colorado - Colorado

Case 1:03-cv-02319-WDM-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No.: 03-CV-02319-WDM-MJW OLOYEA D. WALLIN, Plaintiff, vs. CMI, KIM DEMPEWOLF, RYAN BRADLEY, MARYE DEMING, MONIQUE M. MARTEL, and JASON COOLIDGE, Defendants. ______________________________________________________________________________ MOTION TO DISMISS DEFENDANT RYAN BRADLEY ______________________________________________________________________________ COME NOW the Defendant, Ryan Bradley, by and through his counsel, Pryor Johnson Carney Karr Nixon, P.C., and hereby respectfully submits this Motion to Dismiss Defendant Ryan Bradley. In support thereof, Defendant states as follows: I. BACKGROUND On November 20, 2003, Plaintiff filed his initial Prisoner's Complaint against CMI, Kim Dempewolf, Ryan Bradley, Mary, Sandra, Aaron, Jason, Charles, and Ms. Jane Doe. (Plaintiff's Complaint at 1-12). Plaintiff alleges that he was forced to take Antabuse, a medication administered to deter the consumption of alcohol, while a resident at Centennial Community Transition Center (CCTC). Id. at 8 6. Plaintiff further alleges that the ingestion of Antabuse caused him physical harm. Id. at 8 3. On June 8, 2005, the Court dismissed Plaintiff's first three claims for relief, leaving only a claim for violation of the Eighth Amendment's prohibition

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against cruel and unusual punishment and three pendant state tort claims. (Order on Recommendation of Magistrate Judge at 6.) On March 1, 2006, Defendants CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge filed their Motion for Summary Judgment on Plaintiff's remaining claims. (Defendants' Motion for Summary Judgment at 1-3.) At 9:48 a.m. on February 1, 2007, Magistrate Judge Watanabe issued his recommendation for dismissal of Plaintiff's Eight Amendment claim against CMI, Kim Dempewolf, Marye Deming, Jason Coolidge, and the unserved Ryan Bradley. (Recommendation for Dismissal at 16-17.) Further, Magistrate Judge Watanabe recommended that the Court dismiss Plaintiff's state law claims, declining to exercise supplemental jurisdiction. Id. At the time Magistrate Judge Watanabe filed his recommendation for dismissal, both the Court and the parties were under the impression that Ryan Bradley remained unserved. (Recommendation for Dismissal at 2 & 17.) However, at 2:41 p.m. on February 1, 2007, the United States Marshall filed notice that he had accomplished service of Ryan Bradley on January 31, 2007. (Summons Returned Executed by USM, Feb. 1, 2007.) Defendant now moves the Court to dismiss Plaintiff's claims against Ryan Bradley on the grounds that (a) service upon Mr. Bradley was untimely and (b) the Court has already determined that Plaintiff's claims fail to survive Defendants' Motion for Summary Judgment. Accordingly, Defendant respectfully requests the Court maintain its Recommendation for Dismissal and all related deadlines. II. ARGUMENT AND AUTHORITY A. Mr. Bradley Must be Dismissed Due to Untimely Service.

The Federal Rules of Civil Procedure require service of the summons and complaint to be made upon a defendant within 120 days after the filing of the complaint. Fed. R. Civ. P. 4(m). 2

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The 120-day period is calculated from the date of the original complaint, not from the date of an amended complaint. Espinoza v. United States of America, 52 F.3d 838, 840 (10th Cir. 1995). When a plaintiff is authorized to proceed in forma pauperis, the court may direct service by a United States Marshall, deputy Marshall, or other specially appointed person. Fed. R. Civ. P. 4(c)(2). If Plaintiff can show good cause to excuse a delay in service of process, the court must grant the plaintiff an extension for an appropriate period. Fed. R. Civ. P. 4(m); Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997). Plaintiff bears burden to show that good cause exists. Habib v. General Motors Corp., 15 F.3d 72, 73 (6th Cir. 1994). Pro se status does not obviate the requirement that plaintiff follow the requirements of Fed. R. Civ. P. 4." Espinoza, 52 F.3d at 841. However, pro se litigants for whom United States Marshall service has been directed will generally be granted a good cause extension of the 120-period where a delay is attributable to the Marshall's Service. Graham v. Satkoski, 51 F.3d 710 (7th Cir. 1995). Even if a plaintiff fails to show good cause, the court may issue a permissive extension for a specified period of time. Fed. R. Civ. P. 4(m); Espinoza, 52 F.3d at 940. If service fails, the court may, upon motion or its own initiative, dismiss a plaintiff's claims against a defendant for insufficiency of process. Fed. R. Civ. P. 12(b)(4). Even if defendant has been made aware that a lawsuit has been filed against him, simply demonstrating that the defendant has received actual notice of the lawsuit is not enough - Rule 4's formal requirements for proper service must also be satisfied. See e.g. Prewitt Enters. v. Organization of Petroleum Exporting Countries, 353 F.3d 916, 924 n.14 (11th Cir. 2003) (noting that although "receipt of actual notice is an important factor in considering whether service of process is

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adequate . . . actual notice alone . . .[is] not enough to allow the court personal jurisdiction over the defendant"). On November 20, 2003, Plaintiff filed his Complaint against numerous defendants including Ryan Bradley. (Plaintiff's Complaint at 1-12.) Pursuant to Rule 4(c)(2)'s 120-day requirement, service was due upon Mr. Bradley by March 20, 2004. See Fed. R. Civ. P. 4(c)(2). On October 27, 2004, Judge Miller issued an Order granting service by United States Marshall. (Order at 1-2.) On December 1, 2004, Plaintiff filed a Status Report Regarding Service of Process in which he alleged that service failed upon Ryan Bradley because he was no longer employed at CMI. (Plaintiff's Status Report at 1 2.) On June 3, 2005, the Court issued an Order to Show Cause on of Lack Service on Defendant Bradley. (Order to Show Cause on Lack of Service at 1.) On June 6, 2005, Defendants submitted under seal to the Court the last known addresses of the unserved Defendants. (Defendant's Submission Under Seal at 1-2.) The Court initially set a Show Cause Hearing for July 26, 2005. (Order to Show Cause on Lack of Service at 2.) Then the Court continued the Show Cause Hearing to August 25, 2005 in order for the United States Marshall Service to effectuate service. (Minute Order at 1, July 25, 2005.) The Court again continued the hearing to September 21, 2005 and ordered Plaintiff to supply an updated address for Mr. Bradley by September 9, 2005. (Minute Order at 1, Aug. 26, 2005.) On September 14, 2005, Plaintiff moved the Court for yet another thirty-day extension of time in which to supply an updated address for Mr. Bradley. (Motion for Extension of Time to File Addresses for Unserved Defendants at 1-2.) The Court granted Plaintiff's Motion for Extension up to October 20, 2005. (Order at 1, Sept. 21, 2005.) The Court re-set the Show Cause Hearing for October 24, 2005. Id. By October 27, 2005, Plaintiff had still failed to locate and serve Ryan 4

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Bradley, but provided the Court with another alleged address for Mr. Bradley. (Order at 1, Oct. 27, 2005.) As a result, the Court issued still another Order directing service by the United States Marshall. (Order at 1, Oct. 27, 2005.) By January 22, 2007, the Marshall remained unable to serve Mr. Bradley at any address. (Recommendation for Dismissal at 2) At 9:48 a.m. on February 1, 2007, Magistrate Judge Watanabe issued his recommendation for dismissal of Plaintiff's remaining claims against CMI, Kim Dempewolf, Marye Deming, Jason Coolidge, and the unserved Ryan Bradley. (Recommendation for Dismissal at 2 and 17.) It was not until 2:41 p.m. on February 1, 2007, the United States Marshall filed notice that he had served Ryan Bradley on January 31, 2007. (Summons Returned Executed by USM, Feb. 1, 2007.) None of the Court's Orders granting extensions to Plaintiff for service of Mr. Bradley make any mention whether they are the mandatory result of a good cause finding or merely a permissive extension. However, since the Court did not include a specified time in which service must be effectuated, pursuant to Fed. R. Civ. P. 4(m), Defendants' assume the Court found good cause for extension. Fed. R. Civ. P. 4(m). Even so, Plaintiff is only entitled to an appropriate period of extension. Fed. R. Civ. P. 4(m). As of the date of service upon Mr. Bradley, it had been more than three years and two months since Plaintiff filed his Complaint. (Plaintiff's Complaint at 1.) It had been more than one year and seven months since the Court first issued an Order to Show Cause on Lack of Service. (Order to Show Cause on Lack of Service at 1-2, June 3, 2005.) Finally, it had been more than one year and three months since the Court issued its' last Order Directing Service by the United States Marshall. (Order Directing Service at 1, Oct. 27, 2005.)

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The Court has been more than generous in its willingness to give Plaintiff extension after extension to locate and serve Mr. Bradley. Under these circumstances, Plaintiff has failed to meet his burden to show that good cause exists to excuse any further delay in service. See Habib, 15 F.3d at 73. Further, there is no indication that the failure to serve Mr. Bradley is attributable to some failure on the part of the United States Marshall. See Graham, 51 F.3d at 710. Therefore, after the Court's last Order directing service, Plaintiff was not entitled to any further extension of time. Even applying the Rule's 120-day requirement to the date of the Court's last Order Directing Service by United States Marshall, service would have been required on Mr. Bradley by February, 24, 2006, almost one year ago. See Fed. R. Civ. P. 4(m). Moreover, given the Court's history with Plaintiff, there is no reason to grant Plaintiff yet another permissive extension of time, after the fact, to serve Mr. Bradley. See e.g. Frazier v. Jordan, 2007 U.S. App. LEXIS 696 at **16-17, unpublished (rules of civil procedure do not require another permissive grant of extension of time to adequately identify the defendant where the court has already given plaintiff two extensions of time) (attached as Exhibit A) . Therefore, Defendants move the Court to dismiss Ryan Bradley from the above-captioned matter for insufficiency of process under Fed. R. Civ. P. 12(b)(4). B. In the Alternative, Mr. Bradley Must be Dismissed from this Action Because the Court has Already Determined that the Claims Against Him Fail to Survive Summary Judgment. On March 1, 2006, Defendants CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge filed their Motion for Summary Judgment on Plaintiff's remaining claims against them. (Defendants' Motion for Summary Judgment at 1-3.) On February 1, 2007, at 9:48 a.m., Magistrate Judge Watanabe issued his Recommendation that Defendants' Motion for Summary 6

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Judgment be granted. (Recommendation for Dismissal at 16-17.) He specifically recommended that judgment be entered for Defendants, including the unserved Ryan Bradley, on Plaintiff's Eighth Amendment Claim, that the Court decline to exercise supplemental jurisdiction over Plaintiff's state law claims, and, therefore, that Plaintiff's state law claims also be dismissed. Id. Even if the Court finds that the United States Marshall's January 31, 2007 service of Ryan Bradley was timely, dismissal of Plaintiff's claims against Ryan Bradley is still appropriate because Plaintiff's claims against Mr. Bradley are identical to the claims the Court recommended be dismissed against Defendants CMI, Kim Dempewolf, Marye Deming, and Jason Coolidge. Therefore, the same result, recommendation for dismissal, is warranted for Plaintiff's claims against Mr. Bradley. In support of his claims against Mr. Bradley, Plaintiff argues that Ryan Bradley ignored his medical complaints related to ingestion of Antabuse, denied his request to be taken off the medication, and denied his request to take a breath analysis in exchange for the medication. (Plaintiff's Amended Complaint at 5, Jan. 5, 2005.) Plaintiff's allegations against Mr. Bradley are identical to his allegations against Defendant Dempewolf; the claims are based on the same facts, circumstances, and conduct. Id. Further, Plaintiff's claims against Mr. Bradley are subject to the same defenses raised by Dempewolf in Defendants' Motion for Summary Judgment. (See Defendants' Motion for Summary Judgment at 5-20.) After consideration those identical allegations and defenses, the Court has already determined that summary judgment is appropriate on Plaintiff's claims because: (a) Plaintiff failed to exhaust the administrative remedies available to him prior to

filing this Action (Recommendation for Dismissal at 10); 7

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(b)

Plaintiff failed to present evidence raising a genuine issue of material fact as to

whether the Defendants acted with deliberate indifference to Plaintiff's medical condition (Recommendation for Dismissal at 10 & 15); and (c) In the face of the dismissal of Plaintiff's federal claims, the Court should decline

to exercise supplemental jurisdiction over Plaintiff's state claims. Id. at 15-16. Because there is no difference in the allegations or the applicable defenses, the Court's Recommendation for Dismissal would not have changed had the Court known Mr. Bradley had been served. Rather, Defendants would have brought the same Motion for Summary Judgment and the Court would have issued the same recommendation for dismissal. Therefore, Defendants move the Court to either (a) maintain its original recommendation that Plaintiff's claims against Mr. Bradley be dismissed or (b) issue a new recommendation to dismiss Mr. Bradley on the same grounds the Court recommended dismissing Defendant Dempewolf. III. CONCLUSION The United States Marshall's January 31, 2007 service of Ryan Bradley was untimely under Fed. R. Civ. P. 4 because it came more than 3 years after the date Plaintiff filed his Complaint and more than a year since the Court issued its' last Order Directing Service by the United States Marshall. Moreover, Plaintiff fails to show good cause for another mandatory extension or any reasonable justification for any further permissive extension of time in which to serve Mr. Bradley. Therefore, Ryan Bradley should be dismissed from the Action under Fed. R. Civ. P. 12(b)(4) for inadequacy of service. However, even if the Court finds the United States Marshall's service of Mr. Bradley was timely, dismissal of Mr. Bradley is still appropriate. 8

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Under identical facts, circumstances, legal claims, and legal defenses, the Court has already recommended dismissal of Plaintiff's remaining claims against Mr. Bradley's co-defendants. Therefore, the Court would reach the same result after evaluating the same legal arguments concerning Plaintiff's claims against Mr. Bradley. Therefore, the Court should maintain its original recommendation that Plaintiff's claims against Mr. Bradley be dismissed. Dated this 20th day of February, 2007. /s/ Jessica C. Sousa Jessica C. Sousa Pryor Johnson Carney Karr Nixon, P.C. 5619 DTC Parkway, Suite 1200 Greenwood Village, Colorado 80111 (303) 773-3500 E-Mail: [email protected] Attorneys for CMI, Kim Dempewolf, Marye Deming and Jason Coolidge

CERTIFICATE OF SERVICE I hereby certify that on the 20th day of February, 2007, a true and correct copy of the foregoing was filed via electronic filing, as well as placed in the U.S. Mail, postage prepaid thereon, addressed to: Oloyea D. Wallin Reg. #111389 Arkansas Valley Correctional Facility P.O. Box 1000 Crowley, Colorado 81034 Billy-George Hertzke, Esq. Senter, Goldfarb & Rice, LLC 1700 Broadway, Suite 1700 Denver, Colorado 80290 s/Deena Rippentrop Deena Rippentrop, on behalf of Pryor Johnson Carney Karr Nixon, P.C. 9