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Conley v. Pryor

United States District Court, D. Kansas

January 30, 2015

ANTHONY DEAN CONLEY, Plaintiff,
v.
REX PRYOR, et al., Defendants.

MEMORANDUM AND ORDER

DANIEL D. CRABTREE, District Judge.

Plaintiff brings this lawsuit under 42 U.S.C. § 1983 against numerous individuals alleging that they violated the Eighth Amendment by failing to provide him proper dental care during his incarceration at the Lansing Correction Facility ("LCF"). This matter comes before the Court on defendants Rex Pryor, Kyle Deere, Brett Peterson, Andrew Parks, and Daniel Bryan's Motion for Summary Judgment (Doc. 129) and Defendants Correct Care Solutions and Toby Harkins' Motion to Quash Service and/or to Dismiss (Doc. 143). For the reasons set forth below, the Court grants both motions.

I. Procedural Background

Plaintiff filed this action on November 17, 2011, alleging various claims under 42 U.S.C. § 1983 against the following defendants: David R. McKune, Kyle Deere, Rex Pryor, Ellen Bartz, Joe Pantano, Dr. Kent Murr[a]y, Brett Peterson, Ray Roberts, Governor Sam Brownback, Jerry Boyle, Correct Care Solutions, LLC ("CCS"), Daniel Bryan, and Andrew Parks. (Doc. 1) Plaintiff sued all defendants in their official and individual capacities except for Governor Brownback, who was sued only in his individual capacity. ( Id. ) On September 12, 2012, plaintiff filed an Amended Complaint naming David Lawhorn as an additional defendant. (Doc. 68) The Court dismissed plaintiff's lawsuit on March 27, 2013, for failing to state a claim for relief under 42 U.S.C. § 1983. (Doc. 84)

Plaintiff filed a Notice of Appeal. (Doc. 87) The Tenth Circuit affirmed the district court's decision in part but reversed the district court's dismissal of plaintiff's Eighth Amendment claim alleging deliberate indifference to his serious dental needs as alleged against defendants McKune, Deere, Pryor, Parks, Bartz, Pantano, Peterson, and Bryan. (Doc. 92 at 10-13) The Tenth Circuit affirmed the dismissal of defendants Roberts, Brownback, Boyle, Lawhorn, Murry, and CCS. ( Id. at 11-12)

On remand, plaintiff filed a motion to substitute certain defendants in their official capacities under Fed.R.Civ.P. 25(d)(1). (Doc. 103) Plaintiff sought to substitute David R. McKune (the previous warden at LCF) with Rex Pryor (the current warden at LCF) and Ellen Bartz (previous Health Services Administrator, CCS, at LCF) with Toby Harkins (then current Health Services Administrator, CCS, at LCF). ( Id. ) The Court granted plaintiff's motion and ordered the Clerk of the Court to substitute Pryor with McKune and Harkins for Bartz "only with regard to the allegations against these two individuals in their official capacity." (Doc. 134 at 2) Plaintiff's claims against McKune and Bartz in their individual capacities remain intact. ( Id. )

On April 9, 2014, the Clerk of the Court issued a summons for defendant Harkins stating that the summons should be addressed "in care of" the registered agent for CCS. (Doc. 139 at 2) The United States Marshal's Service served this summons on Harkins by mailing it to the registered agent of CCS, and it was returned as executed. (Doc. 139)

On May 5, 2014, CCS and Harkins filed a Motion to Quash Service and/or to Dismiss based on a lack of personal jurisdiction, insufficient process, and insufficient service of process. (Doc. 143) D. Kan. Rules 6.1(d)(2) and 7.1(c) required plaintiff to respond to CCS and Harkins' motion within 21 days, or by May 26, 2014. The deadline for plaintiff to respond long ago passed, and plaintiff has failed to file any response to CCS and Harkins' motion.

The Court first addresses below CCS and Harkins' Motion to Quash Service and/or to Dismiss (Doc. 143). The Court next considers the Motion for Summary Judgment filed by defendants Pryor, Deere, Peterson, Parks, and Bryan (Doc. 129). Plaintiff filed a Memorandum in Opposition (Doc. 137) in response to the summary judgment motion, and defendants Pryor, Deere, Peterson, Parks, and Bryan submitted a Reply (Doc. 143). Thus, the summary judgment motion is fully briefed for the Court's consideration below.

II. Motion to Quash Service and/or to Dismiss

As noted above, plaintiff has not responded to CCS and Harkins' Motion to Quash and/or Dismiss. Under D. Kan. Rule 7.4(b), a party "who fails to file a responsive brief or memorandum within the time specified in D. Kan. Rule 6.1(d) waives the right to later file such brief or memorandum" unless there is a showing of excusable neglect. This rule also provides "[i]f a responsive brief or memorandum is not filed within the D. Kan. Rule 6.1(d) time requirements, the court will consider and decide the motion as an uncontested motion. Ordinarily, the court will grant the motion without further notice." D. Kan. Rule 7.4(b).

The Court recognizes that plaintiff brings this action pro se. But a plaintiff's pro se status does not excuse him from complying with the Court's rules or facing the consequences of noncompliance. Ogden v. San Juan Cnty., 32 F.3d 452, 455 (10th Cir. 1994) (citing Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994)). Thus, as a consequence of plaintiff's failure to respond timely to CCS and Harkins' motion, the Court considers the motion as uncontested under D. Kan. Rule 7.4(b). Although the Court could grant the motion without further discussion, it addresses the merits of the motion below.

First, CCS argues that the Court should quash the summons to the extent it was directed at CCS. The United States Marshal's Service served the registered agent of CCS with Harkins' summons on April 14, 2014, but CCS argues that CCS-itself-is not a proper defendant in this lawsuit because the Court has already dismissed CCS from this case and the Tenth Circuit affirmed that dismissal. (Docs. 84, 92) The Court agrees that CCS is no longer a defendant in this case because the Court previously dismissed it from the lawsuit. Thus, to the extent the summons is construed as effecting service upon CCS, the Court quashes the summons and dismisses CCS from this lawsuit.

Second, CCS and Harkins argue that to the extent plaintiff was attempting to serve Harkins through the registered agent of CCS, the service failed to comport with the requirements of the Federal Rules of Civil Procedure. Therefore the Court should dismiss Harkins under Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction, Fed.R.Civ.P. 12(b)(4) for insufficient process, and Fed.R.Civ.P. 12(b)(5) for insufficient service of process.

Fed. R. Civ. P. 4 governs service of process in federal actions. Omni Capital Int'l v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987). The personal service requirements of this rule "serve[ ] two purposes: notifying a defendant of the commencement of an action against him and providing a ritual that marks the court's assertion of jurisdiction over the lawsuit." Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992) (citations omitted). "Rule 4 service of process provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served." Id. (citing Omni Capital Int'l, 484 U.S. at 104 (further citations omitted)).

"A federal court lacks personal jurisdiction over a defendant if service of process is insufficient under Rule 4." Hagan v. Credit Union of Am., No. 11-1131-JTM, 2011 WL 6739595, at *1 (D. Kan. Dec. 22, 2011) (citation omitted). A Rule 12(b)(4) motion to dismiss based on insufficient process "constitutes an objection to the form of process or the content of the summons rather than the method of its delivery, " while a Rule 12(b)(5) motion to dismiss based on insufficient service of process "challenges the mode or lack of delivery of a summons or complaint." Oltremari by McDaniel v. Kan. Soc. & Rehabilitative Serv., 871 F.Supp. 1331, 1349 (D. Kan. 1994) (citations and internal quotation marks omitted). When a defendant moves to dismiss based on insufficient service of process under Rule 12(b)(5), the burden shifts to the plaintiff to make a prima facie case that process was served properly. Fisher v. Lynch, 531 F.Supp.2d 1253, 1259 (D. Kan. 2008) (citation omitted). When considering whether service was sufficient, a court may consider any "affidavits and other documentary evidence" submitted by the parties and must resolve any "factual doubts" in favor of the plaintiff. Id. (citation omitted).

CCS and Harkins argue that plaintiff failed to serve Harkins personally as required by Rule 4(e). That rule provides that a plaintiff may accomplish personal service by: (1) delivery on the individual personally, (2) delivery at the individual's dwelling or usual place of abode, (3) delivery on the individual's authorized agent, or (4) following Kansas state laws governing service. See Fed.R.Civ.P. 4(e). Plaintiff has failed to make service under any of the four methods permitted in Rule 4(e). Here, the United States Marshal's Service mailed the summons for Harkins to the registered agent for CCS, and it was returned executed.[1] While Rule 4 allows for service upon an individual's authorized agent, there is no evidence that CCS's registered agent was also an authorized agent for Harkins. See Free v. Okla. Dep't of Corr., No. Civ.-13-0087-F, 2014 WL 347627, at *4 (W.D. Okla. Jan. 30, 2014) (plaintiff failed to demonstrate that the individual who signed the certified mail receipt and accepted delivery of the summons was authorized by the defendant or by law to do so); see also Nichols v. Schmidling, No. 10-2086-JAR, 2011 WL 5837173, at *3 (D. Kan. Nov. 21, 2011) (service upon defendant's counsel who has not been authorized or appointed to receive service of process on behalf of defendant is insufficient service of process). Thus, the Court agrees that service upon the registered agent of CCS, who was not an authorized agent of Harkins, constitutes insufficient service of process on Harkins under Rule 4(e).

Plaintiff has also failed to make service under Kansas state law. Kansas law provides that service upon an individual must be made: (1) by serving the individual or (2) by serving an agent authorized by appointment or by law to receive service of process. K.S.A. § 60-304(a). The Kansas statute also states that:

Service by return receipt delivery shall be addressed to an individual at the individual's dwelling house or usual place of abode and to an authorized agent at the agent's usual or designated address. If the sheriff, party or party's attorney files a return of service stating that the return receipt delivery to the individual at the individual's dwelling or usual place of abode was refused or unclaimed and that a business address is known for the individual, the sheriff, party or party's attorney may complete service by return receipt delivery, addressed to the individual at the individual's business address.

Id. Plaintiff has failed to serve Harkins as required by this Kansas statute because he served neither Harkins individually nor his authorized agent. As already explained, there is no evidence that CCS's registered agent was an authorized agent of Harkins entitled to accept service on his behalf. Further, Harkins did not "refuse or unclaim" service, and therefore it was inappropriate to serve Harkins at a business address. And, even if this part of the statute applied, CCS did not employ Harkins when the Marshal's Service served CCS's registered agent in April 2014. CCS attests that it no longer employed Harkins as of January 1, 2014. Aff. of Stephanie Popp (Doc. 143-1) at ¶ 3. Thus, the address on the summons listing CCS's registered agent was not a business address for Harkins at the time of service.

Because plaintiff has not responded to CCS and Harkins' motion, he has failed to come forward with evidence that Harkins was served with process as required by Rule 4. Therefore, plaintiff fails to meet his burden of showing that Harkins was served properly. See Fisher, 531 F.Supp.2d at 1259 (plaintiff bears the burden to make a prima facie case that process was served properly). The Court therefore grants the motion to quash based on insufficient service of process under Rule 12(b)(5).

The Court recognizes, however, that some of the fault for failing to serve Harkins properly lies with the Court and the Marshal's Service. Because plaintiff proceeds in forma pauperis here, the district court is required to serve process for plaintiff. See Kelly v. Wilson, 426 F.Appx. 629, 631 (10th Cir. 2011) (citing Olsen v. Mapes, 333 F.3d 1199, 1204 (10th Cir. 2003)). In the order granting plaintiff's motion to substitute Harkins as a defendant, Judge Sebelius directed the Clerk of the Court to prepare waiver and service forms for Harkins in his official capacity under Fed.R.Civ.P. 4(d) and ordered the United States Marshal's Service to complete service under Fed.R.Civ.P. 4(c)(3). (Doc. 134 at 2) Instead of issuing a waiver and service forms, the Clerk of the Court issued a summons directed to Harkins in care of the registered agent of CCS, and the Marshal's Service served the summons for Harkins by certified mail at the registered agent's address. The Tenth Circuit has recognized that where a district court fails to provide specific instructions about how to correct deficient service of process, "it is understandable that a pro se litigant might fail to fulfill'" Rule 4's service requirements. Kelly, 426 F.Appx. at 632 (quoting Olsen, 333 F.3d at 1205). Moreover, the Court generally should avoid dismissing a lawsuit when service is insufficient but curable. Fisher v. Lynch, 531 F.Supp.2d 1253, 1269 (D. Kan. 2008) (citations omitted). In those circumstances, the Court "should quash service and give plaintiff an opportunity to re-serve defendant." Id. (citation omitted).

Nevertheless, in this case, the Court determines that it should dismiss plaintiff's claims against Harkins for an additional, independent reason-his claims against Harkins in his official capacity are moot. In their motion, CCS and Harkins also request dismissal of the lawsuit under Fed.R.Civ.P. 12(b)(6) arguing that plaintiff's claims against Harkins in his official capacity as Health Services Administrator at LCF fail because Harkins is not currently employed by CCS, and thus he no longer serves as the Health Services Administrator at LCF. Further, CCS is no longer the health care provider at LCF, [2] and plaintiff is no longer housed as an inmate at LCF.[3] While CCS and Harkins seek a Rule 12(b)(6) dismissal on this basis, the Court addresses this issue as one of mootness which, if shown, deprives the Court of jurisdiction. See Cleveland v. Martin, ___ F.Appx. ___, 2014 WL 5368884, at *2 (10th Cir. Oct. 23, 2014) (addressing whether plaintiff's claim was moot because of his prison transfer, even though the parties did not raise the issue, because mootness is jurisdictional (citing Tandy v. City of Wichita, 380 F.3d 1277, 1290 n.15 (10th Cir. 2004))).

"The mootness doctrine provides that although there may be an actual and justiciable controversy at the time the litigation is commenced, once that controversy ceases to exist, the federal court must dismiss the action for want of jurisdiction.'" Jordan v. Sosa, 654 F.3d 1012, 1023 (10th Cir. 2011) (quoting 15 James W. Moore & Martin H. Redish, Moore's Federal Practice § 101.90, at 101-237 (3d ed. 2010)). In the Tenth Circuit, it is "well-settled that a prisoner's transfer out of a prison moots his requests for declaratory or injunctive relief against staff at that prison." Nasious v. Colorado, 495 F.Appx. 899, 903 (10th Cir. 2012) (citing Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010)); see also Jordan, 654 F.3d at 1027; Green v. Branson, 108 F.3d 1296, 1300 (10th Cir. 1997). "Because a prisoner's transfer or release signals the end of the alleged deprivation of his constitutional rights, an entry of equitable relief in his favor would amount to nothing more than a declaration that he was wronged, and would have no effect on the defendants' behavior towards him." Jordan, 654 F.3d at 1027 (citations, internal quotation marks, and alternations omitted). "Consequently, courts have routinely dismissed such penitentiary-specific conditions-of-confinement claims as moot." Id. (citations omitted).

Here, plaintiff has sued Harkins only in his official capacity as the Health Services Administrator at LCF and seeks only injunctive relief against Harkins. See Order (Doc. 134) at 2 (granting plaintiff's motion to substitute Harkins as a defendant in his official capacity only); see also Pl.'s Mot. to Correct a Mistake (Doc. 127) (requesting to clarify in his Amended Complaint that plaintiff is suing defendants "in their official capacities for injunctive relief"); Pl.'s Mot. to Modify (Doc. 128) (same); Order (Doc. 140) at 1 (denying plaintiff's motions to correct an alleged error in the Amended Complaint because the record is clear that defendants were sued in their official capacities for injunctive relief). But plaintiff's transfer from LCF to the El Dorado Correctional Facility rendered moot any claim for injunctive relief against Harkins in his official capacity as the Health Services Administrator at LCF. See Green, 108 F.3d at 1300; see also Cleveland, 2014 WL 5368884, at *2. Thus, the Court lacks jurisdiction over Harkins and grants CCS and Harkins' motion to dismiss Harkins from this action.

III. Motion for Summary Judgment

A. Pro Se Litigant's Lack of Compliance with Local Rules

In accordance with D. Kan. Rule 56.1(f), defendants Pryor, Deere, Peterson, Parks, and Bryan (hereinafter, "the Moving Defendants") sent plaintiff a "Notice to Pro Se Litigant Who Opposes a Summary Judgment Motion." This notice advised plaintiff that if he did "not respond to the motion for summary judgment on time with affidavits and/or documents contradicting the material facts asserted by the defendant[s], the court may accept defendant[s'] facts as true, in which event [plaintiff's] case may be dismissed and judgment entered in defendant[s'] favor without a trial." (Doc. 131)

In his Opposition, plaintiff has failed to controvert the facts asserted by the Moving Defendants in their Memorandum in Support of Summary Judgment. The Court's local rules provide that "[a]ll material facts set forth in the statement of the movant will be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of the opposing party." D. Kan. Rule 56.1(a). To controvert facts in the fashion the rule requires, the nonmoving party must number the facts and "refer with particularity to those portions of the record upon which the opposing party relies, and if, applicable, state the number of movant's fact that is disputed." D. Kan. R. 56.1(b)(1). Because plaintiff has not controverted the Moving Defendants' facts, the Court deems defendants' facts admitted and accepts them as true.

Instead of controverting the Moving Defendants' facts, plaintiff has asserted 119 additional factual statements that he claims are controverted facts. The Moving Defendants have responded to plaintiff's 119 factual statements, many of which plaintiff fails to support with evidence in the record, as the Court's local rule requires. See D. Kan. Rule 56.1(b)(2) ("If the party opposing summary judgment relies on any facts not contained in movant's memorandum, that party must set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above."). Although plaintiff is a pro se litigant and the Court must construe his filings liberally, the Court will not serve as his advocate and will not accept as true conclusory allegations unsupported by evidence in the record. James v. Wadas, 724 F.3d 1312, 1315 (10th Cir. 2013) (citations omitted). Also, as previously noted, plaintiff's pro se status does not excuse him from complying with federal and local rules. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994) ("This court has repeatedly insisted that pro se parties follow the same rules of procedure that govern other litigants." (citations and internal quotation marks omitted)). Thus, the Court does not accept plaintiff's factual statements that are not supported by proper evidence.[4] But, where the Moving Defendants have stated that certain of plaintiff's factual statements are uncontroverted, the Court accepts those unconverted facts as true and incorporates those facts (if they are material) into the statement of uncontroverted facts that follows.

B. Uncontroverted Facts

The following facts are uncontroverted and stated in the light most favorable to plaintiff, the nonmoving party.

The Parties

Plaintiff currently is an inmate housed at the El Dorado Correctional Facility in El Dorado, Kansas. Previously, he was housed as an inmate at LCF in Lansing, Kansas. In this lawsuit, plaintiff alleges that his teeth are overlapped, bucked, crowded, and crooked to the point that he chews holes on the insides of his cheeks causing him pain and interfering with his ability to chew, speak, and breathe. Plaintiff asserts that the Moving Defendants have failed to provide him proper dental care, and thus have shown deliberate indifference for his serious dental needs, in violation of the Eighth Amendment.

At all times relevant to this case, the Kansas Department of Corrections employed defendant Pryor as acting Warden and Warden at LCF. As part of his job duties, Pryor was responsible for implementing facility policies and procedures. Pryor is familiar with plaintiff because he signed a response to plaintiff's grievance complaining about his teeth. This grievance represents the only correspondence Pryor received from plaintiff about his alleged dental condition before plaintiff filed this lawsuit. Pryor does not recall ever encountering plaintiff in person while plaintiff was housed at LCF. Pryor has never said that he did not have to enforce facility policies, including policies about dental treatment.

The Kansas Department of Corrections employed defendant Deere as Deputy Warden of Programs at LCF at all times relevant to this case. In this position, Deere's duties and responsibilities included overseeing all LCF contractual agreements, including medical and educational services, overseeing custody classification, visitation, and recreation, and acting as a liaison with private prison based and non-prison based industries. Deere never encountered plaintiff in person while he was ...


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