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Shields v. Lemmon

United States District Court, S.D. Indiana, Indianapolis Division

December 28, 2017

PRINCOLA SHIELDS, Estate of, by Debra Shields, Personal Representative, Plaintiff,
v.
BRUCE LEMMON, et al., Defendants.

          ORDER ON DEFENDANTS' MOTION TO DISMISS

          SARAH EVANS BARKER, JUDGE UNITED STATES DISTRICT COURT.

         Plaintiff 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.

         Relevant Factual Background

         Ms. 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 2.

         Ms. 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. Id.

         On 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.

         Defendants 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.

         On 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.

         Applicable Law and Standard of Review

         Federal 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).[1]

         When a 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).

         Under 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 ...


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