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Stephen Mathies v. Seth Silver and Maria Martinez

June 8, 2011

STEPHEN MATHIES, PLAINTIFF,
v.
SETH SILVER AND MARIA MARTINEZ, DEFENDANTS.



The opinion of the court was delivered by: Kugler , United States District Judge:

NOT FOR PUBLICATION (Doc. No. 49)

OPINION

This matter arises from the surgical repair of Plaintiff's ruptured Achilles tendon by Defendant Seth Silver, M.D., in 2001 while Plaintiff Stephen Mathies was an inmate at a federal detention center. Plaintiff claims that he was injured because Dr. Silver performed the procedure improperly. Although Plaintiff filed his Complaint in June 2004, he did not serve Dr. Silver until July 2010, and he has yet to complete service as required by Rule 4(i)(3) by properly serving the United States. Presently before the Court is Dr. Silver's motion pursuant to Federal Rule of Civil Procedure 12 to dismiss the Complaint for insufficient service of process, lack of personal jurisdiction, and failure to state a claim. Because Plaintiff has yet to complete service pursuant to Federal Rule of Civil Procedure 4, and because the Court has granted Plaintiff numerous extensions of time to complete service over the last six years, the Court dismisses Plaintiff's Complaint for failure to complete service of process.

I. BACKGROUND

A. Factual Allegations

Plaintiff alleges that on July 14, 2001, he ruptured his Achilles tendon while incarcerated at the Federal Correctional Institute in Fairton, New Jersey ("FCI Fairton"). On August 28, 2001, Dr. Silver performed reconstructive surgery to repair the tendon. After the surgery, Dr. Silver placed Plaintiff's leg in a fiberglass "long-leg" cast. (Compl., at 4). In September 2001, Dr. Silver put Plaintiff's leg in a "short-leg" cast and told Plaintiff that he had a fifty percent "area of break down" on his wound. (Id. at 4-5). By October 2001, the wound was infected and fluid was leaking from the cast. Dr. Silver made a "window" in the cast to drain the fluid. (Id. at 5). Plaintiff claims that the wound became infected because of fiber in the "long-leg" cast and because Dr. Silver did not allow for proper drainage. (Id. at 4-5). Plaintiff further alleges that his Achilles tendon "was so infected that it will not heal," and that subsequent tests show that the wound contracted certain bacteria. Plaintiff claims that he requires corrective "follow-up" surgery to avoid becoming "perman[en]tly disabled." (Id. at 5). Plaintiff asserts that Dr. Silver's conduct amounts to deliberate indifference to his medial needs in violation of the Eighth Amendment's proscription against cruel and usual punishment.

The original Complaint also asserted a claim against Maria Martinez, a "physician's assistant." (Id. at 6). Plaintiff claims that on October 20, 2001, he asked Ms. Martinez to see "Dr. Morales" for emergency care regarding the infection, but Ms. Martinez refused to allow Plaintiff to immediately see Dr. Morales. (Id.). Plaintiff saw a doctor three days later. Plaintiff also alleges that he complained about Ms. Martinez's conduct, and, in retaliation, she "changed [his] medical treatment without authorization from the surgeon," and refused him clean "dressing" for his wound. (Id.). Plaintiff alleges that before bringing suit in this Court, he filed various administrative claims and an "Administrative Tort Claim." *fn1 (Id.at 5).

B. Procedural History

Plaintiff initiated this action by filing the Complaint in June 2004 pursuant to Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), *fn2 naming Dr. Silver and Ms. Martinez as Defendants. *fn3 In September 2005, the clerk forwarded blank summonses to Plaintiff. On October 5, 2005, Plaintiff sent a letter to the Court stating that he had attempted to serve Defendants. Plaintiff attached copies of "return of service" forms and inquired of the Court as to whether it was necessary for him to "re-do" service. (Doc. No. 5). The "return of service forms" were not signed and did not include an affirmation that Plaintiff served Defendants. On February 6, 2006, because Plaintiff had not properly served Defendants, the clerk issued a notice of call for dismissal informing Plaintiff that the Court may dismiss the case for failure to prosecute pursuant to Federal Rule of Civil Procedure 41.1(a). In response, Plaintiff submitted a letter to the Court stating that he "sent out to Defendants Notice of Complaint." On February 24, 2006, the Court found that Plaintiff failed to comply with Rule 4's service requirements, but the Court withdrew the call for dismissal and extended Plaintiff's time to file proof of service until March 24, 2006, which was well beyond the 120-days provided by Rule 4(m). The Court noted in its order that Plaintiff was required to complete service pursuant to Rule4.

Following that extension, Plaintiff sent the Court a letter dated March 16, 2006, in which he attached: (1) summonses, unsigned by the Clerk of Court, for Ms. Martinez and Dr. Silver; (2) a signed certified mail receipt addressed to Ms. Martinez at her work address; and (3) an unsigned certified mail receipt addressed to Dr. Silver, indicating that he no longer resided at the address provided. In an Order dated May 15, 2006, the Court found that Plaintiff had again failed to comply with Rule 4's service requirements. However, after considering Plaintiff's pro se status and the complexities of Rule 4's service requirements, the Court exercised its discretion and extended Plaintiff's time to effectuate service until July 16, 2006, which was exactly two years after Plaintiff's Complaint was filed for purposes of Rule 4(m).

In addition to extending Plaintiff's time to complete service under Rule 4, the Court's May 15, 2006 Order also provided a step-by-step tutorial regarding the relevant requirements of service under Rule 4. The Court explained that Plaintiff could not serve Ms. Martinez or Dr. Silver by certified mail, that the Clerk of the Court must sign the summonses, and that pursuant to Rule 4(i)(2)(B), *fn4 Plaintiff was required to serve both the individual Defendants and the United States. The Order further explained that, pursuant to Rule 4(i)(1), to properly serve the United States, Plaintiff was required to send a copy of the summons and complaint to the United States Attorney for the district in which the action was brought and the Attorney General of the United States. The Court unequivocally stated in its Order that Plaintiff had failed to properly serve the United States, Ms. Martinez, and Dr. Silver, and that Plaintiff should complete service by July 16, 2006.

Following the Court's extension of time and detailed review of Rule 4's service requirements, Plaintiff sent the Court a letter dated May 26, 2006, stating that he had completed service on the United States by certified mail. Plaintiff enclosed certified mail receipts addressed to the Attorney General of the United States and the United States Attorney's Office in Camden, New Jersey and a copy of an unsigned summons. In June 2006, Ms. Martinez made a motion to dismiss on the grounds that the Court lacked jurisdiction over her due to improper service of process and the expiration of time to serve under Rule 4(m). Ms. Martinez argued, among other things, that Plaintiff's service was improper because Plaintiff failed to serve the United States with a complete summons signed by the Clerk and impressed with the Court's seal. At the time Ms. Martinez moved to dismiss, Plaintiff had failed to serve her for almost one year after filing the Complaint.

In March 2007, the Court granted Ms. Martinez's motion to dismiss. The Court explained that not only was Plaintiff's service of Ms. Martinez by certified mail improper, but Plaintiff's service on the United States was insufficient because Plaintiff served the United States with "an incomplete summons." (Doc. No. 16, at 7). In dismissing Plaintiff's claims against Ms. Martinez, the Court evaluated whether Plaintiff should be given additional time to cure those service deficiencies. The Court found that an extension was unwarranted because Plaintiff did not demonstrate "good cause" for his failure to timely and properly serve Ms. Martinez and the United States. (Id.).

On April 13, 2007, the Court issued a notice of call for dismissal informing Plaintiff that the Court may dismiss Plaintiff's remaining claim against Dr. Silver for failure to prosecute pursuant to Federal Rule of Civil Procedure 41.1(a). Plaintiff opposed the dismissal notice claiming that he had requested assistance from the Clerk in signing the summonses and from the United States Marshals Service in serving the summonses. ...


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