United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
plaintiff Dallas Robinson brings this action in forma
pauperis against defendants KVC Prairie Ridge Valley Hospital
(“KVC”), unspecified “Nurses, ” and
“Doctor Naveed.” This matter is before the court
on defendants' Motion to Dismiss (Doc. 13).
complaint, which will be discussed in detail below, alleges
that an incident occurred involving KVC near the end of 2017
or early 2018. (Doc. 1, at 3.) Plaintiff claims her eye
has been injured since this incident and demands at least
$500, 000 in damages. (Doc. 1, at 4.) The complaint includes
a business addresses for KVC, but no address was provided for
any of the other named defendants. Magistrate Judge
O'Hara ordered plaintiff to provide addresses for all
defendants no later than October 12, 2018, so the Clerk could
continue with service of process. (Doc. 7.) Plaintiff did not
provide additional addresses. Nevertheless, a summons was
issued to KVC on September 26, 2018. A summons was not issued
to defendants “Nurses” and Doctor Naveed.
filed this motion and accompanying memorandum on October 22,
2018. Plaintiff did not respond to the motion. On December
10, the Clerk of the Court received a call from plaintiff,
stating that she needed to change her own address. The Clerk
advised her to file a Notice of Change of Address.
December 27, 2018, this court ordered plaintiff to show cause
no later than January 11, 2019 as to why the motion should
not be considered unopposed. (Doc. 15.) Plaintiff did not
respond to that order. On January 8, 2019, Judge O'Hara
issued an order noting plaintiff had used different addresses
when filing two separate cases and ordered her to provide the
court with a correct address no later than January 22, 2019.
(Doc. 16.) Plaintiff did not provide the court with a correct
address. Accordingly, this motion will be considered
uncontested. See D. Kan. Rule 7.4 (“Absent a
showing of excusable neglect, the court will consider and
decide the motion as an uncontested motion.”).
alleges that she was “disrespected by multiple staff
[presumably at KVC] around October, November, December,
January of 2017-2018.” (Doc. 1, at 3.) She claims a
“PRN injection” was placed in her eyedrops
“between the dates of 10/21/2017-11/3/2017.” She
also claims she went back to KVC on 11/3/2017 to obtain proof
that something was put in the eyedrops. She did not state
whether she received that proof. Since the incident, she
claims her “eye has been hurting horribly” and
“it will cost a lot to get it fixed or maybe even
replaced.” (Doc. 1, at 4.) She demands at least $500,
000 for damages from the incident.
argue that plaintiff's complaint should be dismissed
because it fails to state a claim under Fed.R.Civ.P. 12(b)(6)
and, additionally, defendants “Nurses” and Doctor
Naveed must be dismissed for insufficient service of process.
(Doc. 14, at 1.) For the reasons set forth below, the court
grants defendants' motion and dismisses all defendants
from the case.
court will first consider whether the defendants were
properly served. Federal Rule of Civil Procedure 12(b)(5)
governs motions to dismiss for insufficient service of
process. “If service of process is insufficient under
Federal Rule of Civil Procedure 4, a federal court is without
personal jurisdiction over that defendant.” Rivera
v. Riley Cnty. Law Bd., No. 11-cv-02067-JAR-JPO, 2011 WL
4686554, at *2 (D. Kan. Oct. 4, 2011) (citing Blackmon v.
U.S.D. 259 Sch. Dist., 769 F.Supp.2d 1267, 1273 (D. Kan.
Feb 15, 2011). “Once a defendant challenges service of
process in a motion to dismiss under 12(b)(5), the burden
falls on the plaintiff to show she has satisfied the
statutory and due process requirements with service of
noted above, Judge O'Hara ordered plaintiff to provide
addresses for all defendants prior to October 12, 2018.
Plaintiff did not provide these addresses or otherwise
respond to that order. The defendants argue that individual
defendants “Nurses” and defendant Doctor Naveed
must each be dismissed from the case and cannot be forced to
respond to these allegations because a summons was never
issued and plaintiff failed to respond to the court's
order directing her to provide an address for these
defendants. (Doc. 14, at 3.) The court agrees.
the burden-shifting analysis described above, this court
lacks personal jurisdiction over defendants
“Nurses” and Doctor Naveed. Defendants have
challenged service of process as to those defendants under
Rule 12(b)(5), placing the burden on the plaintiff to show
service of process was proper. A summons was never issued as
to defendants “Nurses” and Doctor Naveed. Judge
O'Hara even ordered plaintiff to provide addresses for
these defendants so a summons could be issued, but
plaintiff never did so. Further, plaintiff did not file a
response to this motion, thus failing to answer the
defendants' challenge. This court cannot exercise