United States District Court, S.D. Texas, Corpus Christi Division
ORDER DENYING MOTION TO DISMISS
GONZALES RAMOS UNITED STATES DISTRICT JUDGE.
prisoner civil rights action, Plaintiff Brandon Richardson
raises claims of excessive force, failure to protect, and
deliberate indifference to his serious medical needs
concerning an August 29, 2014 incident at the McConnell Unit.
Plaintiff identified one of the defendants in his original
complaint as “Nurse Moreno” and asserted a
deliberate indifference claim against her. This defendant was
later identified as Sonia Moron, and she was served with a
summons and the original complaint on April 18, 2017. (D.E.
Moron has filed a Motion to Dismiss Pursuant to Rule 12(b)(5)
and 4(m) for failure to effectuate timely service. (D.E. 88).
Plaintiff has filed a response in opposition to the Motion to
Dismiss. (D.E. 91). For the reasons stated herein, Defendant
Moron's motion to dismiss is denied.
is a prisoner at the McConnell Unit of the Texas Department
of Criminal Justice, Criminal Institutions Division
(TDCJ-CID). Plaintiff filed his original complaint on
November 21, 2014, and named fifteen defendants including
“Nurse Moreno.” (D.E. 1). On March 2, 2015,
Magistrate Judge B. Janice Ellington ordered service of
process on “Nurse Moreno” and seven other
defendants. (D.E. 9). The Magistrate Judge directed the
Office of the Attorney General of the State of Texas (OAG) to
either: (1) obtain authority to represent the defendants
including “Nurse Moreno” within forty-five days
after receipt of the March 2, 2015 Order; or (2) file within
the same forty-five day period a statement of the address of
the defendants. (D.E. 9, p. 1). On April 17, 2015, the OAG
responded by stating its belief that Nurse Moreno's name
was Sonia Moron, a former TDCJ employee. (D.E. 18, p. 2). The
OAG provided Defendant Moron's last known address but
requested that her address be sealed and not included in any
service-related documents. (D.E. 18, pp. 2-3).
April 28, 2015, the Magistrate Judge granted the OAG's
motion to seal, directing that Defendant Moron's address
“shall not be made available to Plaintiff.” (D.E.
24). That same day, the Magistrate Judge ordered the U.S.
Marshal to attempt service on Defendant Moron at the address
provided under seal. (D.E. 25). During the summer of 2015,
the U.S. Marshal attempted service on Defendant Moron by
certified mail, but that effort failed. (See D.E.
30). On September 17, 2015, the Magistrate Judge again
ordered the U.S. Marshal to attempt service through either
certified mail or personal service. (D.E. 35). After an
attempt to serve through certified mail failed, a U.S Marshal
visited the address supplied by the OAG and discovered that
the address was to a flower shop where nobody had ever heard
of Defendant Moron. (D.E. 43-1, pp. 1-2).
December 14, 2015, the Magistrate Judge ordered Plaintiff to
show cause within thirty days why his claim against Defendant
Moron should not be dismissed without prejudice for failure
to timely serve her. (D.E. 46). The Magistrate Judge
admonished Plaintiff in this order that “[f]ailure to
timely comply may result in dismissal of all claims against
Defendant Moron without prejudice for failure to
prosecute.” (D.E. 46, pp. 1-2).
receiving the December 14, 2015 Order, Plaintiff wrote a
letter to Dr. Lannette Linthicum, who was listed in the
prison's directory as head of the TDCJ Health Services
Division. (D.E. 91-1, ¶ 3). Plaintiff asked Dr.
Linthicum if Defendant Moron had worked for the TDCJ and if
he could get Defendant Moron's address. (Id.).
Dr. Linthicum never responded to Plaintiff's letter.
(Id.). Plaintiff then asked his elderly uncle to
look up Defendant Moron on the internet, but his uncle
uncovered no leads as he was unskilled in internet research.
(Id., ¶ 4). Plaintiff ultimately did not file a
response to the December 14, 2015 Order. The Court, however,
took no further action with respect to that Order.
December 30, 2015, the Court received an advisory from
Plaintiff in which he stated that McConnell Unit guards had
searched his legal documents on December 8, 2015, causing
damage to some documents while others became missing. (D.E.
48). On February 12, 2016, four defendants filed a motion for
summary judgment based on Plaintiff's failure to exhaust
administrative remedies. (D.E. 52). On May 12, 2016,
Defendant Refugio Campos, a nurse at the McConnell Unit,
filed a motion for summary judgment with respect to
Plaintiff's claim of deliberate indifference against
Defendant Campos. (D.E. 58). These summary judgment motions
were denied on August 23, 2016, and November 28, 2016,
respectively. (D.E. 70 and 75).
25, 2016, Plaintiff moved for the appointment of counsel
(D.E. 60), which was denied by the Magistrate Judge the next
day. On January 18, 2017, following the denial of the summary
judgment motions, the Magistrate Judge reconsidered
Plaintiff's request and appointed attorney Adam
Milasincic to represent Plaintiff. (Doc. 76). Mr. Milasincic
was provided “approximately 60 days to familiarize
himself with the case and with his client to determine
whether additional time for discovery is necessary prior to
trial.” (D.E. 76, pp. 1-2).
becoming familiar with Plaintiff's case and meeting
Plaintiff on March 13, 2017 for the first time, Mr.
Milasincic recognized that Defendant Moron had not been
served and, thus, “began efforts to locate a better
address for her.” (D.E. 91-2, ¶ 2). Mr. Milasincic
unsuccessfully performed a public records search on Westlaw
and checked with the Bee County Appraisal District records.
Mr. Milasincic then consulted with the Texas Nursing Board
website and found that Defendant Moron was still licensed in
Beeville, Texas. (Id., ¶¶ 3-4). In order
to ascertain her location, Mr. Milasincic found a
“Sonia Moron” on Facebook who listed herself as
living in Beeville. (Id., ¶ 4). Mr. Milasincic
confirmed that Defendant Moron worked at a Beeville dialysis
clinic and arranged for a private server to serve Defendant
Moron on April 18, 2017. (Id., ¶ 5; D.E. 86).
On April 24, 2017, the return of service as to the summons
executed on Defendant Moron was filed with the Court. (D.E.
Moron seeks dismissal of Plaintiff's deliberate
indifference claim against her under Federal Rules of Civil
Procedure 12(b)(5) and 4(m). Rule 12(b)(5) allows a defendant
to seek dismissal for insufficient service of process.
Pursuant to the version of Rule 4(m) in effect at the time
this action was filed,  “[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.” Fed.R.Civ.P. 4(m). This Rule further provides
that if the plaintiff shows good cause for the failure to
serve in a timely fashion, the court is required to
“extend the time for service for an appropriate