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Garcia v. Correctional Medical Service, Inc.

United States District Court, D. New Jersey

January 29, 2015

AUGUSTIN GARCIA, Plaintiff,
v.
CORRECTIONAL MEDICAL SERVICE, INC., et al., Defendants.

MEMORANDUM OPINION AND ORDER

DOUGLAS E. ARPERT, Magistrate Judge.

This matter comes before the Court on three Motions by Plaintiff: (1) a Motion for an extension of time to effect service of process on the remaining unserved Defendants [Dkt. No. 33]; (2) a Motion for the issuance of new Summonses [Dkt. No. 34]; and (3) a Motion to compel discovery from Defendants Despina Terris and Saint Francis Medical Center [Dkt. No. 36]. Defendant Despina Terris opposes Plaintiff's Motion to compel discovery [Dkt. No. 43]. The remaining two Motions are unopposed. For the reasons set forth below, Plaintiff's Motion for an extension of time to effectuate service of process [Dkt. No. 33] is GRANTED in part and DENIED in part, Plaintiff's Motion for the issuance of new Summonses [Dkt. No. 34] is GRANTED in part and DENIED in part, and Plaintiff's Motion to compel discovery from Defendants Despina Terris and Saint Francis Medical Center [Dkt. No. 36] is DENIED.

Pro se Plaintiff Augustin Garcia's Complaint was filed on January 30, 2014 and asserts claims pursuant to 28 U.S.C. § 1983 against Defendants Correctional Medical Service ("CMS"), Ralph Woodward, M.D., Abu Ahsan, M.D., Dr. Nuggen, M.D., Despina Terris, M.D., Saint Francis Medical Center ("SFMC"), Charles Warren, Jr., New Jersey State Prison ("NJSP"), Gary Lanigan, New Jersey Department of Correction ("NJDOC"), New Jersey Department of Public Safety and Correctional Services ("NJDPS"), and John and Jane Does Nos. 1-30.[1] As relevant to the present Motions, Plaintiff alleges that while incarcerated he was diagnosed with prostate cancer. According to Plaintiff, during the subsequent treatment for his prostate cancer and complications arising therefrom, Defendants were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights.

I. Motion for Extension of Time to Serve Defendants [Dkt. No. 33]

Pursuant to Federal Rule of Civil Procedure 4(m), "[i]f a defendant is not served within 120 days after the complaint is filed, the court... 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."

In deciding whether to grant a Motion to extend time for service:

"[f]irst, the district court should determine whether good cause exists for an extension of time. If good cause is present, the district court must extend time for service and the inquiry is ended. If, however, good cause does not exist, the court may in its discretion decide whether to dismiss the case without prejudice or extend time for service."

Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.1995). The Third Circuit equates "good cause" under Rule 4(m) with "the concept of excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.'" MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995) (quoting Petrucelli, 46 F.3d at 1312), cert. denied, 519 U.S. 815 (1996). The Court may consider such factors as the "(1) reasonableness of plaintiff's efforts to serve; (2) prejudice to the defendant by lack of timely service; and (3) whether plaintiff moved for an enlargement of time to serve." Okagbue-Ojekwe v. Fed. Bureau of Prisons, 2010 WL 3947528, at *2 (D.N.J. Oct. 7, 2010) (quoting MCI Telecomm. Corp., 71 F.3d at 1097).

Plaintiff's Complaint was filed on January 30, 2014. See Dkt. No. 4. Plaintiff filed the present Motion on December 8, 2014, seeking a 90 extension to serve Defendants Charles Warren, Jr., NJDPS, NJSP, CMS, Despina Terris, M.D., Dr. Nuggen, M.D., and Ralph Woodward, M.D.[2]

The only basis provided by Plaintiff for his failure to serve Defendants is that "the prison mail system it too unreliable thus the correspondence between the Marshals Services and I take longer than it should." Dkt. No. 33, Augustin Decl. at p. 2. Although the Court is mindful of the challenges faced by Plaintiff in litigating his case pro se while incarcerated, Plaintiff's pro se status does not excuse his failure to comply with Rule 4. See Veal v. United States, 84 F. Appx. 253, 256 (3d Cir. 2004). Plaintiff's time to serve Defendants expired on May 30, 2014, and Plaintiff did not make the present request for an extension until December 8, 2014. While Plaintiff may experience a delay in his communication with the U.S. Marshall's Service, such a delay does not justify the passage of several months between Plaintiff's single failed attempt at service for each of the Defendants and Plaintiff's present request for an extension.

It also appears from the documentation submitted by Plaintiff that he is experiencing difficulty in obtaining the proper addresses for service. Dkt. No. 33, Exhibit A at p. 23-29. While Rule 4(c)(3) requires that the Court effect service of the summons and complaint for a plaintiff who is proceeding in forma pauperis, the plaintiff must provide sufficient information for the Court to do so. See Maltezos v. Giannakouros, 522 Fed.Appx. 106, 108 (3d Cir. 2013) (citing Lee v. Armontrout, 991 F.2d 487, 489 (8th Cir.1993)). Although the Court is mindful that Plaintiff is proceeding pro se, he is still responsible for providing the necessary information to effect service, and Plaintiff's failure to obtain the proper addresses to serve the Defendants does not constitute good cause.

Notwithstanding the lack of good cause, the Court, in its discretion, will grant Plaintiff an extension of time to serve process. However, the Court will limit Plaintiff's extension to 60 days, rather than the 90 days requested by Plaintiff. Plaintiff's Motion is unopposed and none of the unserved Defendants have moved for the dismissal of Plaintiff's Complaint based on his failure to effect service of process. Accordingly, because the Court finds that Defendants will not be prejudiced by an extension of Plaintiff's time to serve, the Court exercises its discretion and Plaintiff's Motion for an extension of time to serve Defendants is GRANTED in part and DENIED in part.

II. Motion for the Issuance of New Summonses [Dkt. No. 34]

Pursuant to Federal Rule of Civil Procedure 4(c)(3), the Court must order "that service be made by a United States marshal... if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C. § 1915." Accordingly, upon granting Plaintiff's application to proceed in forma pauperis on January 30, 2014, the Court directed the Clerk to issue Summonses and instructed the U.S. Marshal's Service to serve the summonses and Complaint. See Dkt. No. 4. The Summonses issued for Defendants Charles Warren, Jr., NJDPS, NJSP, CMS, Despina Terris, M.D., Dr. Nuggen, M.D., and Ralph Woodward, M.D. were returned ...


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