United States District Court, D. Colorado
Kristen L. Mix United States Magistrate Judge
matter is before the Court on Defendant Armor Correctional
Care Services' (“Armor”) Motion to
Dismiss All Claims Against Armor Correctional Health
Services, Inc. [#27] (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. 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). See [#24, #25, #39, #40].
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.
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
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.
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. Id. at
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
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].
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.
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.
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].
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 ...