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Brown v. Department of Health and Human Services

United States District Court, D. Nebraska

April 27, 2017

CORNELIUS BROWN, Plaintiff,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, COURTNEY PHILIPS, Director, SHANNON BLACK, Program Director, KYLE MALONE, SOS Team Leader, WILLIAM BECKER, Program Therapist, CINDY DYKEMAN, Program Manager, and LISA LAURELL, Program Social Worker, et al., Defendants.

          MEMORANDUM AND ORDER

          Richard G. Kopf Senior United States District Judge.

         After initial review of Plaintiff's pro se complaints alleging that the defendants treated her unfavorably because she is transgender, this court ordered that Plaintiff's 42 U.S.C. § 1983 claims for denial of equal protection and due process and First Amendment retaliation could proceed to service of process as to various defendants. (Filing 8.) Two of the defendants have filed motions to dismiss (Filings 23, 25), and Plaintiff has filed a motion for extension of time (Filing 29) and a motion for protective order (Filing 33).

         Motion to Dismiss DHHS (Filing 23)

         The defendants first move to dismiss Plaintiff's only remaining claim against the Nebraska Department of Health and Human Services (“DHHS”), a state agency, for prospective injunctive relief pursuant to Fed.R.Civ.P. 12(b)(6). This motion will be granted. See Brown v. Missouri Dep't of Corr., 353 F.3d 1038, 1041 (8th Cir. 2004) (Missouri Department of Corrections was not proper party under 42 U.S.C. § 1983); Graves v. Stone, 25 F. App'x 488, 490, 2002 WL 62995, at *1 (8th Cir. 2002) (“the Eleventh Amendment bars any suit brought in federal court by an individual against a state or its agencies, regardless of the nature of the relief sought”; rejecting argument that Ex Parte Young exception allowing § 1983 suits for injunctive relief against state officials sued in their official capacities makes a state agency a proper defendant).

         Motion to Dismiss Defendant Philips in Official Capacity (Filing 25)

         After initial review of Plaintiff's complaints, this court directed Plaintiff that copies of a summons and complaint must be served on “the Nebraska Attorney General's Office or the chief executive officer for the State of Nebraska as to defendant[] . . . Philips in her official capacity.” (Filing 8 at CM/ECF p. 16.) See Fed.R.Civ.P. 4(j)(2) (service on state must be accomplished by “delivering a copy of the summons and of the complaint to its chief executive officer” or “serving a copy of each in the manner prescribed by that state's law for serving a summons or like process on such a defendant”); Neb. Rev. Stat. § 25-510.02 (Westlaw 2017) (employees of state sued in their official capacity may be served “by leaving the summons at the office of the Attorney General with the Attorney General, deputy attorney general, or someone designated in writing by the Attorney General, or by certified mail or designated delivery service addressed to the office of the Attorney General.”)

         The proof of service for Courtney Philips in her official capacity indicates that the U.S. Marshals Service completed personal service upon her on December 6, 2016, at “301 Centennial Mall South Lincoln, NE 68508, ” which was the address provided by Plaintiff on the USM-285 form, but is not the address of the Nebraska Attorney General. (Filing 12 at CM/ECF pp. 5-6.) On December 22, 2016, Assistant Attorney General Ryan Gilbride filed a motion for an enlargement of time in which to answer or otherwise plead on behalf of the defendants, including Courtney Phillips “in her official and individual capacities.” (Filing 15.) However, on January 23, 2017, Gilbride filed an answer on behalf of defendant Courtney Phillips in her individual capacity only and also filed a motion to dismiss Philips in her official capacity based on improper service of process pursuant to Fed.R.Civ.P. 12(b)(4) and (5). (Filings 21, 25.)

         Defendant Philips in her official capacity now moves to dismiss Plaintiff's claims against her for improper service of process under Fed.R.Civ.P. 12(b)(4) and (5) because Plaintiff served Philips in her official capacity at the wrong address. (Filing 25.) Plaintiff has responded to Philips' motion, stating that the Lincoln Regional Center gave Plaintiff and other patients the address for the Nebraska Department of Health and Human Services (301 Centennial Mall South, Lincoln, NE 68508) for “submitting complaints.” (Filing 32 at CM/ECF pp. 4, 10.)

Although a defect in service may result in the dismissal of the improperly served person, a court has broad remedial power to correct the service, especially where justice demands and prejudice would not result to the improperly served parties. Haley v. Simmons, 529 F.2d 78, 79 (8th Cir. 1976). One of the remedial options is the quashing of service but retention of the case so that service may be effected in accord with the Rules. C & L Farms, Inc. v. Federal Crop Ins. Corp., 771 F.2d 407, 409 (8th Cir. 1985); Haley, 529 F.2d at 79. Moreover, a motion to dismiss for insufficiency of service may be denied where there has been substantial compliance with Rule 4, the mistake was innocent, and the defendant was not prejudiced. See, e.g., Gray v. Allied Waste Servs. of Washington, 2012 WL 2871422, *4 (D. Md. 2012) (“Because Plaintiff is pro se and Defendant received actual notice, dismissal for ineffective service of process is inappropriate at this stage.”); Myrtle v. Graham, 2011 WL 446397 (E.D. La. 2011) (dismissal should not result when plaintiff made good faith attempt to comply with rules for service and defendant did not demonstrate prejudice or lack of actual notice).

Mendoza v. Osterberg, No. 8:13CV65, 2014 WL 3784122, at *3 (D. Neb. July 31, 2014).

         Here, Philips has not demonstrated that she lacks notice of Plaintiff's claims or that the improper service has caused her prejudice. Further, it is evident that Plaintiff-despite her pro se status-successfully served the other defendants, suggesting that Plaintiff's error in serving Philips in her official capacity was an innocent mistake that was compounded by her institution providing Plaintiff with an address that was perhaps appropriate for other purposes, but not for properly serving process in this lawsuit.

         Accordingly, for good cause shown, the court will deny Philips' motion to dismiss and will extend the time in which process may be served upon defendant Courtney Philips in her official capacity. See Fed.R.Civ.P. 4(m) (“[I]f the plaintiff shows good cause for the failure [to serve], the court must extend the time for service for an appropriate period.”); Weller v. Cass Cty. Prosecutor's Office, No. 05-0042-CV-W-FJG, 2005 WL 2090788, at *4 (W.D. Mo. Aug. 30, 2005) (giving plaintiff additional time to complete service when plaintiff was proceeding pro se and had “at least made an effort to complete service” upon defendant); Dahl v. Kanawha Inv. Holding Co., 161 F.R.D. 673, 681 (N.D. Iowa 1995) (generally, when court finds service insufficient but curable, it should quash service and give plaintiff opportunity to re-serve defendant, but dismissal may be proper without opportunity to cure where proper service would be futile); In re Hollis & Co., 86 B.R. 152, 154 (Bankr. E.D. Ark. 1988) (denying defendant's motion to dismiss party for improper service in part because the “[m]otions for extensions of time to file preliminary motions [made it] reasonable for Plaintiff to believe that service had been accomplished”; noting that dismissal is not required when service is ineffective-rather, court has discretion to dismiss or quash service but retain case).

         Motion for Extension of Time to Respond to Interrogatories (Filing 29)

         Plaintiff moves for an unspecified amount of additional time to respond to Defendants' first set of interrogatories which were allegedly sent to Plaintiff along with the motions to dismiss discussed above. (Filing 29.) Defendants' counsel has filed an affidavit confirming that he propounded Defendants' first set of interrogatories and requests for production of documents upon Plaintiff on January 23, 2017, and that Defendants agreed to ...


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