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Richardson v. Livingston

United States District Court, S.D. Texas, Corpus Christi Division

June 12, 2017

BRAD LIVINGSTON, et al., Defendants.



         In this 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. 86).

         Defendant 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.


         Plaintiff 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).

         On 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).

         On 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).

         After 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.

         On 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).

         On May 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).

         After 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. 86).


         Defendant 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, [1] “[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 ...

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