Ueding v. Chris

          ORDER

          Kristen L. Mix United States Magistrate Judge

         This matter is before the Court on Defendant Armor Correctional Care Services' (“Armor”)^[1] Motion to Dismiss All Claims Against Armor Correctional Health Services, Inc. [#27]^[2] (the “Motion”). Plaintiff filed a Response [#37] in opposition to the Motion, and Defendant Armor filed a Reply [#41]. Plaintiff proceeds in this matter as an incarcerated pro se litigant.^[3] Plaintiff and Defendant Armor have consented to proceed before the undersigned for all proceedings pursuant to 28 U.S.C. § 636(c) and D.C. COLO. LCivR 72.2(d).^[4] See [#24, #25, #39, #40].

         In the Motion [#27], Defendant Armor argues that the Court should dismiss Claim Two of Plaintiff's Amended Complaint [#10] against Defendant Armor for three reasons: (1) failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6); (2) insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5); and (3) failure to properly identify the correct defendant. Motion [#27]. Claim Two asserts violations of Plaintiff's “right to medical aid” and right against cruel and unusual punishment under the Eighth Amendment. Am. Compl. [#10]. Plaintiff generally alleges that the violations occurred when he was denied adequate medical treatment from February 14, 2017 to March 27, 2017, for injuries he suffered as an inmate in the El Paso County Criminal Justice Center. Id. at 5. Claim Two is the sole remaining claim in this case and is asserted against Defendant Armor and Defendant R.N. Chris.^[5]

         As outlined below, due to a lack of clarity as to which defendants Plaintiff intended to name in the Amended Complaint [#10], the Court has not yet directed the Clerk of Court or the United States Marshal to serve the Amended Complaint on Defendant Armor (as the Court is required to do under Fed.R.Civ.P. 4(c) and 28 U.S.C. § 1915). Consequently, behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). In addition, Plaintiff, as a pro se litigant, must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994). the Court finds that dismissal of Claim Two against Defendant Armor would be premature at this stage. Therefore, the Motion [#27] is DENIED without prejudice.

         A. Procedural Background

         Plaintiff initiated this civil action on June 5, 2017. Compl. [#1]. Plaintiff is incarcerated in the Colorado Department of Corrections and was granted leave to proceed in forma pauperis under 28 U.S.C. § 1915. [# 8]. Plaintiff's Amended Complaint [#10] was filed on August 4, 2017.

         In the Amended Complaint [#10], the factual allegations underlying Claim Two assert that Defendant R.N. Chris conducted an initial medical examination of Plaintiff but failed to follow proper “documentation procedures” which caused Plaintiff to not receive medication and x-rays he had previously requested. [#10] at 5. No reference to Defendant Armor is made in these factual allegations. See id. However, the Amended Complaint [#10] lists “Armor Correctional Care Services/R.N. Chris” as a single named party on the Prisoner Complaint Form.^[6] Id. at 2.

         The Court interpreted the Amended Complaint [#10] and Plaintiff's factual allegations as asserting Claim Two against Defendant R.N. Chris alone, with “Armor Correctional Care Services” merely describing Defendant R.N. Chris' place of employment. See Minute Order [#29]. Based on this interpretation, the Court ordered on August 23, 2017, that the United States Marshal serve Defendant R.N. Chris at the El Paso County Criminal Justice Center on Plaintiff's behalf pursuant to Fed.R.Civ.P. 4(c) and 28 U.S.C. § 1915. See Certificate of Service by Clerk of Court [#13]. The United States Marshal subsequently returned an unexecuted Summons with respect to Defendant R.N. Chris on September 20, 2017, which led the Court to issue the first Order to Show Cause [#26] on December 19, 2017. Process Receipt and Return [#21].

         Shortly thereafter, Defendant Armor entered its appearance in this case by filing the present Motion [#27] on January 12, 2018. In light of this, the Court issued Minute Order [#29] on April 4, 2018, seeking clarification from Plaintiff as to which defendants he intended to name in the Amended Complaint [#10]. Specifically, the Court directed Plaintiff to file a written statement by May 4, 2018, indicating “whether he intended to name ‘Armor Correction Care Services' as a Defendant separate and apart from ‘R.N. Chris.'” [#29].

         The April 4, 2018 Minute Order [#29] and another order issued the same day were returned to the Court as undeliverable on April 12, 2018. See [#30]. Because of this and the fact that the Court had not received any filing or communication from Plaintiff since September 2017, the Court issued the second Order to Show Cause [#31] on May 9, 2018. The second Order to Show Cause [#31] required Plaintiff to show, by May 30, 2018, why his case should not be dismissed for his failure to prosecute the case and notify the Court of his change in address. [#31] at 2.

         On May 16, 2018, Plaintiff filed a Response [#33] explaining to the Court that he was twice moved from facilities between January and April of 2018, which made it difficult for him to timely respond to the Court's orders and notify the Court of his change in address. Response [#33] at 1. As to whether Plaintiff intended to name Defendant Armor and Defendant R.N. Chris as separate defendants, Plaintiff stated that both are “the same but Armor is primary.” Id. Based on this statement, the Court issued Minute Order [#35] on June 15, 2018, amending the case caption to include Defendant Armor as a separate defendant. Importantly, however, the Court did not direct the Clerk of Court or United States Marshal to serve Defendant Armor on Plaintiff's behalf pursuant to Fed.R.Civ.P. 4(c) and 28 U.S.C. § 1915.

         As of the date of this Order, Defendant Armor has not been served and no Summons as been issued with respect to it. Plaintiff indicates in his Response [#37] to the present Motion [#27] that he has attempted to serve Defendant Armor but cannot locate a correct address to properly do so. [#37] at 2. It is with this procedural background in mind that the Court addresses the present Motion [#27].

         B. Defendant Armor's Motion to Dismiss

          Defendant Armor moves to dismiss, in part, for insufficient service of process pursuant to Fed.R.Civ.P. 12(b)(5), because Plaintiff has failed to effect service or obtain a waiver of service within the time required under Fed.R.Civ.P. 4(m). Motion [#27] at 5, 6. A “Rule 12(b)(5) motion challenges the mode of delivery or the lack of delivery of the summons and complaint.” 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 3D § 1353. However, "[e]ffectuation of service is a precondition to suit ..." Jenkins v. City of Topeka, 136 F.3d 1274, 1275 (10th Cir. 1998). Without proof of service, the ...