United States District Court, D. New Jersey
August 25, 2005.
FRANKLIN GARDNER Plaintiff,
DR. GREGORY ACHEBE, et al, Defendants.
The opinion of the court was delivered by: STANLEY CHESLER, Magistrate Judge
This matter comes before the Court upon the Motion of State
Defendants, Hendricks and Maurer, to dismiss Plaintiff's
Complaint for insufficiency of service of process pursuant to
Plaintiff, Franklin Gardner, is an inmate currently
incarcerated at New Jersey State Prison (NJSP) in Trenton, New
Jersey. On February 17, 2004, he commenced this pro se action,
pursuant to 42 U.S.C. § 1983, against two employees of the New
Jersey Department of Corrections, Roy L. Hendricks and Susan
Maurer ("State Defendants") claiming that the State Defendants
were deliberately indifferent to his medical needs.
On August 3, 2004, the Court dismissed Plaintiff's complaint
for failure to state a claim and on August 11, 2004, the case was
terminated. On October 20, 2004, Plaintiff filed a motion for
relief from the order of dismissal and a motion for leave to file
an Amended Complaint. The motions were granted and the Plaintiff
filed an Amended Complaint on October 22, 2004.
Then, on December 14, 2004, the Attorney General's Office filed
a letter informing the Court that the State Defendants had no knowledge of the case and
were unable to comply with the New Jersey Tort Claims Act because
they had not been properly served. A copy of this letter was also
served on Plaintiff. Defendants' Certification of Counsel, Ex. A.
Next, on December 30, 2004, Plaintiff filed a Second Amended
Complaint. On June 24, 2005, the attorney general's office
received a letter from Plaintiff advising that the State
Defendants never filed an answer to his Second Amended Complaint.
See Defendants' Certification of Counsel, Exhibit B. Attached
to this letter was a copy of a second letter Plaintiff sent to
the Court requesting withdrawal of his second Amended Complaint
and informing the Court of his intention to rely on the first
Amended Complaint he filed on or about October 20, 2004.
Defendants' Certification of Counsel, Exhibit C.
Pursuant to Fed.R.Civ.P. 4(m), a defendant must be served
within 120 days after the filing of the complaint and under
Fed.R.Civ.P. 12(b)(5), a defendant may move for dismissal of a
complaint when service of process is insufficient. Here,
Gardner's first Amended Complaint was filed on October 22, 2004.
On December 14, 2004, Gardner was served with a copy of a letter
by former Deputy Attorney General Nicole Morris informing the
court that the State Defendants never received proper service of
either Gardner's original complaint, which was dismissed by the
court for failure to state a claim, or his first Amended
On December 30, 2004, Gardner filed a second Amended Complaint
which was also never served on the State Defendants. Gardner now
seeks to rely on his first Amended Complaint. To this date, it
has been almost ten months after the filing of his first Amended
Complaint and more then six months after having notice of
insufficiency of service and Defendants still have not been
served process in accordance with the Federal Rules.
On July 14, 2005 the Court received a letter from Plaintiff
requesting an extension to file Opposition to this motion, which he sought to file within "seven
to fourteen days." The request was opposed by Defendants, in a
letter brief dated July 27, 2005. As of the date of this Opinion
and Order, no Opposition has been filed.*fn1
In another letter dated July 14, 2005, to the Clerk of the
Court, Plaintiff requested that the Office of the Attorney
General accept service on behalf of Defendants Hendricks and
Maurer. This would not be feasible. As Defendants point out,
pursuant to N.J.S. 59:10A, the Attorney General shall, upon a
request of an employee or former employee of the State, provide
for the defense of any action brought against such State employee
or former State employee on account of an act or omission in the
scope of his employment. However, the Attorney General can also
refuse to provide a defense. The defendants must first be served
with the Summons and Complaint and then they request
representation from the Attorney General's Office. Here, the
Attorney General's office cannot sign a Waiver of Service of
Summons for the defendants because these potential defendants
have not yet requested representation from the Attorney General's
office. For this reason, Plaintiff's request that the Attorney
General's office accept service on behalf of potential
defendants, Hendricks and Maurer, must be denied.
For all of the above reasons, Defendants Motion to Dismiss as
to Defendants Hendricks and Maurer, pursuant to Fed.R.Civ.P.
12(b)(5) and 4(m) will be granted in an Order accompanying this
Opinion and dated the same.