Hegwood-Metcalf v. Truex

• Decision Date: 28 April 2011
• Docket Number: Case No. 3:09-CV-453 JD
• Parties: GEORGE HEGWOOD-METCALF, Plaintiff, v. CAPTAIN TRUEX, et al., Defendants.
• Court: U.S. District Court — Northern District of Indiana

GEORGE HEGWOOD-METCALF, Plaintiff, v. CAPTAIN TRUEX, et al., Defendants.

Case No. 3:09-CV-453 JD

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA SOUTH BEND DIVISION

ENTERED: April 28, 2011

OPINION AND ORDER

On September 29, 2009, Plaintiff, George Hegwood-Metcalf ("Metcalf'), filed a Complaint alleging Section 1983 violations of his Constitutional rights and a state law negligence action. [DE 1]. In the original Complaint, Metcalf asserted that certain John and Jane Doe staff members of the Miami Correctional Facility, along with Superintendent Mark Sevier ("Sevier"), were negligent or deliberately indifferent to Metcalf's rights when they failed to protect him from an attack by a fellow prisoner. As a result of the attack, Metcalf alleges that he suffered a broken eye socket, permanently damaged eyesight, a broken nose, and injured ribs. On May 7, 2010, Metcalf's first motion to file an amended Complaint was granted, allowing Metcalf leave to provide the names of the John and Jane Doe Defendants. [DE 19]. Thereafter, on August 11, 2010, Metcalf's second motion to amend the Complaint was granted, permitting Metcalf an opportunity to add the State of Indiana, Department of Correction/Miami Correctional Facility in place of the previously dismissed Defendant, Sevier. [DE 25, DE 26].

On October 27, 2010, the Defendants filed a motion to dismiss this case pursuant to Fed. R. Civ. P. 12(b)(5), for insufficient service, and pursuant to Fed. R. Civ. P. 12(b)(6), for failureto state a claim upon which relief could be granted. [DE 39]. In the motion, the Defendants argue that service was improper because service was made only upon the Indiana Attorney General ("Attorney General") and not also upon the state executive. Further, the Defendants argue that Metcalf failed to present an argument to justify relation back of his second amended Complaint and that, therefore, Metcalf's second amended Complaint falls outside the statute of limitations.

On November 12, 2010, Metcalf filed a response, conceding that the two year statute of limitations has run in regards to his Section 1983 claims and that dismissal is appropriate as to those claims. [DE 43]. However, Metcalf asserts that his negligence claim remains. Metcalf objects to the Defendants' contention that improper service should warrant dismissal of his case. Instead, Metcalf asserts that, because his Section 1983 claims is time-barred, his remaining state-law negligence claim should be dismissed without prejudice and this case should be remanded to state court.

On December 1, 2010, the Defendants filed a reply. The Defendants contend that remand is not appropriate, as this case was never removed from state court. Further, the Defendants argue that dismissal of this case should be with prejudice, contending that Metcalf's filing of his state law claim in state court would now be untimely.

I. Defendants' Motion to Dismiss. [DE 38],

A. Analysis

1. Dismissal under Fed. R. 12(b)(5) for insufficient service.

Fed. R. Civ. P. 12(b)(5) authorizes dismissal of a complaint when a plaintiff provides insufficient service of process on a defendant. See also Pike v. Decatur Memorial Hospital, 2005 WL 2100251, at *1 (S.D. Ind. 2005). When service of process is insufficient, the court lacks personal jurisdiction over the defendant. Pike, 2005 WL 2100251 at *1 (noting similarities between a 12(b)(5) motion to dismiss for insufficient service and a 12(b)(2) motion to dismiss for lack of personal jurisdiction). See also Rabiolo v. Weinstein, 357 F.2d 167, 168 (7th Cir. 1966); Evans v. Indiana, 908 N.E.2d 1254, 1258 (Ind. App. 2009). In determining whether service was proper, the court reviews the facts in a light most favorable to the non-moving plaintiff and may consider affidavits and other documentary evidence. Pike, 2005 WL 2100251 at *1. Nevertheless, the burden rests on the plaintiff to demonstrate that the defendant has been properly served. Id.

The Defendants argue that Metcalf provided insufficient service of process because he only served the Attorney General and failed to also serve the executive officer of the governmental organization, the Indiana Department of Corrections. As such, the Defendants contend that dismissal is warranted under Fed. R. Civ. P. 12(b)(5) for lack of personal jurisdiction.

Fed. R. Civ. P. 4(j)(2) provides that service upon a state governmental organization requires "delivering a copy of summons and of the complaint to its chief executive officer or by serving the summons and complaint in the manner prescribed by the law of that state for the service of summon or other like process upon any such defendant." Metcalf did not do the former and must, therefore, rely on the latter. Under Indiana law, service upon a state governmental organization may be made "upon the executive officer thereof and also upon the Attorney General." Ind. Trial Rule 4.6(A)(3). See also Evans, 908 N.E.2d at 1258 (holding that both must be served to effectuate proper service).

Metcalf does not dispute that he only served the Attorney General. As such, under the Rules, the Defendants are correct that service was not complete against the newly-added defendant. Nevertheless, Metcalf's imcomplete service does not warrant dismissal for lack of personal jurisdiction. See Evans, 908 N.E.2d at 1258-59 (quoting Ind. Trial R. 4.15(F))("No summons or the service thereof shall be set aside or be adjudged insufficient when either is reasonably calculated to inform the person to be served that an action has been instituted against him, the name of the court, and the time within which he is required to respond.").

The State of Indiana, Indiana Department of Corrections does not argue that it is unaware or has been previously unaware of Metcalf's repondeat superior claim. Indeed, as explained in greater detail at a latter point in this Order, the Indiana Department of Corrections had constructive notice of Metcalf's respondeat superior claim, given Metcalf's numerous filings against Sevier, its officers and the Court's substantial treatment of the same. See Court's discussion regarding constructive notice, infra at 8-14. Further, even more persuasive in this regard, Deputy Attorney General Scott L. Barnhart ("Barnhart") has entered an appearance on behalf of all of the state defendants in this case, including the State of Indiana, Indiana Department of Corrections. See DE16 and DE 34. This fact has been considered sufficient to establish that an improperly-served state defendant had actual notice of the claims against it. See Evans, 908 N.E.2d at 1258-59 (holding that Attorney General's appearance on behalf of improperly served state defendant was sufficient to evidence actual notice of a plaintiff's claims and to warrant against dismissal for improper service). See also Reed Sign Serv., Inc. v. Reid, 755 N.E.2d 690, 696 n.5 (Ind. App. 2001) ("actual notice following service attempts is strong evidence that the attempts were 'reasonably calculated to inform'"). Further, reviewingMetcalf's summons receipt and second amended complaint, it is clear that Metcalf made some attempt to identify the proper party when serving the amended complaint. See Evans, 908 N.E.2d at 1259 (concluding that a summons, itself, was reasonably calculated to inform a Defendant wherein the intended defendant was specifically identified in the summons). Specifically, the Court notes that the process receipt of Metcalf's summons, indicates that Metcalf issued summons upon the "State of Indiana, c/o Indiana Attorney General." See DE 31. In addition, the amended complaint at issue, presumably attached to the summons executed by the U.S. Marshals Service, clearly identifies the "State of Indiana, Department of Correction/Miami Correctional Facility" in the caption and later in the third paragraph, asserting that the "State of Indiana, Department of Correction/Miami Correctional Facility" was the employer of the Defendant prison guards.

Consequently, the summons properly served upon the Attorney General; the Attorney General's entry of appearance on behalf of the State of Indiana, Department of Corrections/Miami Correctional facility; the summons' identification of the State of Indiana as the attempted party to be served; and the numerous other filings made in this case, including the prior summonses served upon the other state defendants represented by Barnhart, were reasonably calculated to inform the newly-added Indiana Department of Corrections of this action. Evans, 908 N.E.2d at 1258-59. As such, dismissal under Fed. R. Civ. P. 12(b)(5) for lack of personal jurisdiction is not warranted in this instance. Id. Accordingly, the Court DENIES IN PART the Defendants motion to dismiss in this respect.

2. Dismissal under Fed. R. 12(b)(6) due to timeliness of Complaint

Fed. R. Civ. P. 12(b)(6) authorizes dismissal if the complaint fails to sets forth a claimupon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When analyzing a Rule 12(b)(6) motion to dismiss, the court must accept all well-pleaded factual allegations in the complaint as true and must draw all reasonable inferences in favor of the plaintiff. Jackson v. E.J. Brach Corp, 176 F.3d 971, 977-78 (7th Cir. 1999). However, a plaintiff's claims are subject to dismissal if the plaintiff can not present any set of facts to justify the requested relief. Id. at 978; Scott v. City of Chi., 195 F.3d 950, 951 (7th Cir. 1999).

The Defendants argue that Metcalf's claims are time-barred under the relevant statute of limitations. In particular, the Defendants assert that both Metcalf's Section 1983 and state law negligence claims are subject to a two-year statute of limitations. See Hoagland v. Town of Clear Lake, Ind., 415 F.3d 693, 699-700 (7th Cir. 2005); Behavioral Inst. of Ind., LLC v. Hobart City of Common Council, 406 F.3d 926, 929 (7th Cir. 2005); Perez v. Sifel, 57 F.3d 503, 505 (7th Cir. 1995). Because Metcalf's second amended complaint was filed beyond...