United States District Court, S.D. Indiana, Indianapolis Division
PRINCOLA SHIELDS, Estate of, by Debra Shields, Personal Representative, Plaintiff,
BRUCE LEMMON, et al., Defendants.
ORDER ON DEFENDANTS' MOTION TO DISMISS
EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.
Debra Shields (“Ms. Shields”), as the personal
representative of the estate of Princola Shields, brought
this wrongful death action against the Indiana Department of
Correction, the Indiana Women's Prison, Corizon Health,
Inc., and several current and former employees of these
entities (“Defendants”) pursuant to 42 U.S.C.
§ 1983. This matter is now before us on Defendants'
Motion to Dismiss three of the named defendants, Leslie
Weaver, Shonda Simon, and Keisha Hamer-Harris, pursuant to
Federal Rule of Civil Procedure 4m (Dkt. No. 70), based on
untimely service of process. For the reasons set forth below,
we GRANT Defendants' Motion with regard to Ms. Weaver and
DENY it with regard to Ms. Simon and Ms. Hamer-Harris.
Shileds filed her initial complaint on August 11, 2016 (Dkt.
No. 1), alleging that on or about September 11, 2015, unknown
individual health care providers and unknown employees of the
Indiana Department of Correction working at the Indiana
Women's Prison individually and in their official
capacities violated Princola Shields's rights under the
Fourth, Eighth, and Eighteenth Amendments by not providing
proper monitoring and medical treatment, which led to
Princola Shields's death. On December 13, 2016, Ms.
(Debra) Shields filed an amended complaint. Dkt. No. 33.
Through discovery, Ms. Shields identified Ms. Weaver, Ms.
Simon, and Ms. Hamer as appropriate defendants and, on
December 20, 2016, proposed summonses were submitted for
issuance to Keisha Hamer, Shonda Simon, and “Ms.
Weaver” at the Indiana Women's Prison (Dkt. No.
36), which summonses issued the following day. Dkt. No. 40.
After Defendants informed Ms. Shields on December 28, 2016,
that service on Ms. Weaver at the Indiana Women's Prison
was improper because Ms. Weaver was no longer a Corizon
employee, Ms. Shields attempted to serve her at her last
known address as provided by Defendants. Pl.'s Resp. at
Shields filed a proof of service asserting that she had
successfully served Shonda Simon and Keisha Hamer on January
3, 2017, at the Indiana Women's Prison. Dkt. No. 45. The
signature on the green card executed on behalf of Ms. Simon
and Ms. Hamer bore the name of an individual unknown to
Defendants who was “presumably working in the mail room
at the prison.” Def.'s Mtn. at 2. Defendants assert
in their motion to dismiss that this individual was not
authorized to accept service for Ms. Simon and Ms. Hamer.
February 15, 2017, Ms. Shields also filed proposed summonses
directed to Ms. Simon and Ms. Hamer using the addresses
provided by Defendants' counsel on February 2, 2017,
which summonses were issued on February 16, 2017.
Id. at 3; Dkt. Nos. 53, 55. No return of service was
filed for either Ms. Simon or Ms. Hamer.
filed the instant motion on May 18, 2017, asserting that Ms.
Shields has neither issued a summons to Ms. Weaver's at
her last known address, nor perfected service on Ms. Simon or
Ms. Hamer. Def.'s Mtn. at 3. Ms. Shields responded on May
22, 2017. Dkt. No. 71.
October 10, 2017, Ms. Shields filed proposed summonses for
issuance to Ms. Hamer, who apparently changed her name to
Hamer-Harris, and to Ms. Simon, which issued the following
day. Dkt. Nos. 112, 113. On October 23, 2017, Ms. Sheilds
then filed a proof of service on Ms. Hamer-Harris and Ms.
Simon. Dkt. No. 114, Ex. A. On November 3, 2017, certain
Defendants, including Ms. Simon and Ms. Hamer, filed an
answer to Ms. Shields's amended complaint. Dkt. No. 119.
Law and Standard of Review
Rule of Civil Procedure 4(m) provides for dismissal of an
action based on untimely service of process. The rule states,
in relevant part:
If proper service is not accomplished within 90 days after
the complaint is filed, the court-on motion or on its own
after the notice to the plaintiff-must dismiss 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).
plaintiff meets his or her burden of proving that “good
cause” exists to excuse a delay in service, a court
must grant the plaintiff an extension for “an
appropriate period.” See Parker v. Scheck
Mechanical Corp., 772F.3d 502, 506 (7th Cir. 2014). Good
cause means a valid reason for delay, such as the
defendant's evasion of service. Geiger v. Allen,
850 F.2d 330, 333 (7th Cir. 1988).
the current version of Rule 4(m), absent a plaintiff's
showing of good cause, courts need not simply dismiss the
suit without prejudice. See Coleman v. Milwaukee Bd. of
School Directors, 290 F.3d 932, 934 (7th Cir. 2002)
(permitting an extension of time for service in the case of
excusable neglect). Thus, where the plaintiff fails to show
“good cause, ” the court has two options: (1)
dismiss the action without prejudice; or (2) order that
service be made within a specified time. United States v.
McLaughlin, 470 F.3d 698, 700 (7th Cir. 2006). In either