John Doe v. May
| Decision Date | 16 November 2015 |
| Docket Number | Civil Action No. 14-cv-01740-WJM-NYW |
| Parties | JOHN DOE, Plaintiff, v. CHARLES T. MAY, JR., Special Agent in Charge, NCIS Norfolk Field Office, BRIAN BRITTINGHAM, Supervisory Special Agent, NCIS Norfolk Field Office, SAMANTHA MARTIN, NCIS Special Agent, KEVIN C. PRICE, NCIS Special Agent, JASON TUCKER, MMCM, U.S. Navy, and JAMES NEWELL, JR., Sergeant, New York State Police, Defendants. |
| Court | U.S. District Court — District of Colorado |
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This civil action is before the court on the Motion to Dismiss for Lack of Personal Jurisdiction or, Alternatively, for a More Definite Statement ("Motion to Dismiss") filed on March 31, 2015 by Defendants Charles T. May, Jr. ("Defendant May"), Brian Brittingham ("Defendant Brittingham"), Samantha Martin ("Defendant Martin") and Kevin Price ("Defendant Price") (collectively, "NCIS Defendants"). [#46]. This matter was referred to this Magistrate Judge pursuant to the Order Referring Case dated June 24, 2014 [#7], the Order of Reassignment dated February 10, 2015 [#37], and the memorandum dated March 31, 2015 [#47]. Also before the court is Plaintiff's failure to respond to the Order to Show Cause as to why this action should not be dismissed as to Defendants James Newell, Jr. ("Defendant Newell") and Jason Tucker ("Defendant Tucker") for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with an order of this court. See [#57]. After carefully considering the Motion and related briefing, the entire case file, and applicable case law, I respectfully RECOMMEND that the Motion to Dismiss be GRANTED and the Complaint be DISMISSED as to all Defendants.
Plaintiff John Doe1 initiated this action on June 23, 2014 by filing a pro se Complaint pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403, U.S. 388 (1971) asserting violations of his Fourth, Fifth, and Eighth Amendment rights arising out of his arrest and detainment. [#1]. Plaintiff seeks damages in the amount of $27.1 million, as well as injunctive relief. [Id. at 14].
Plaintiff immediately sought an order from the court directing the United States Marshal Service to serve Defendants. [#5] Magistrate Judge Boland denied the motion because Plaintiff was not proceeding in forma pauperis and did not provide "any competent authority to justify service by the United States Marshal," and ordered Plaintiff to file proof of service as to Defendants on or before October 21, 2014. [#9]. Plaintiff then filed a Motion for Reconsideration of Judge Boland's order, which Judge Boland struck because Plaintiff had signed his name as "John Doe," in contravention of Fed. R. Civ. P. 10(1). [#21, #23]. Plaintiff filed a second Motion for Reconsideration on October 21, 2015, seeking relief from the court's order that he file proof of service for all Defendants by that same day. [#24]. He represented that his repeated attempts to serve Defendants "with multiple process servers" had beenunsuccessful because "[a]ll of the process servers are civilians and have been unable to access the military installation where the Defendants are located." Id. Judge Boland denied the motion, noting that Plaintiff had not submitted any evidence of attempted service or explanation as to why he could not have Defendants served when they were not at the military installation, and ordered Plaintiff show cause on or before November 10, 2014 why the case should not be dismissed as against all Defendants for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with an order of the court pursuant to D.C.COLO.LCivR 41.1. [#26]. Judge Boland warned Plaintiff that failure to show cause on or before the ordered date would result in a recommendation that the Complaint be dismissed. Id. In his Response to the Order to Show Cause, Plaintiff represented that "[t]he only way by which I can effect service of summons on the defendants who are located on Naval Station Norfolk is via the U.S. Marshals Service." [#27]. Judge Boland thereafter recommended that the court dismiss the Complaint without prejudice, noting that Plaintiff had again failed to provide any evidence of attempted service or explanation as to why the defendants could not be served when they were not at the military installation. [#29]. Plaintiff filed a timely objection to Judge Boland's recommendation. [#30].
On December 22, 2014, Judge Martinez sustained Plaintiff's objections, accepting "Plaintiff's assertion that private process servers are unable to access the military base." [#33]. The court found good cause to extend the deadline for service of process and that service by the U.S. Marshals Service was appropriate given the circumstances. Id. Judge Martinez then ordered Plaintiff to provide the U.S. Marshals Service with the "detailed address of the Naval base at which the Defendants can be located," on or before February 20, 2015, and requiredPlaintiff to remain responsible for serving Defendant Newell, whom Plaintiff acknowledged was not located on the military installation, and to file proof of service regarding Defendant Newell on or before February 20, 2015. Id. Judge Martinez additionally extended Plaintiff's time period for service under Fed. R. Civ. P. 4(m) as to all Defendants, except Defendant Newell, until the U.S. Marshals Service had filed proof of service with the court; and ordered the U.S. Marshals Service to file a writing with the court naming any Defendant who could not be located after diligent effort, and further ordered that the deadline for service would not thereafter be extended as to any such Defendant. Id.
On January 16, 2015, Plaintiff filed a "Notice of Compliance" with the address at which Defendants May, Brittingham, Martin, Price, and Tucker could be served. [#34]. On March 19, 2015, the U.S. Marshal Service filed executed returns of service for Defendants May, Brittingham, Martin, and Price. [#42, #43, #44, #45]. The U.S. Marshal Service filed unexecuted returns of service for Defendants Newell and Tucker. [#40, #41].
On October 22, 2015, this court issued an Order to Show Cause on or before November 13, 2015 why this case should not be dismissed as to Defendants Newell and Tucker for failure to prosecute, failure to timely effect service of process as required by the Federal Rules of Civil Procedure, and failure to comply with the December 22, 2014 Order pursuant to D.C.COLO.LCivR 41.1. [#57]. The undersigned warned in the Order to Show Cause that Plaintiff's failure to supply an adequate response would result in the recommendation that the Complaint be dismissed as to these Defendants. Id. Plaintiff did not file a timely Response, and to date he has not filed proof of service as to Defendants Newell or Tucker.
The following allegations are taken from the Complaint and deemed true for the purposes of the consideration of the instant Motion to Dismiss. Plaintiff resides in Colorado. See [#49 at 2]. Defendants May, Brittingham, Martin, and Price were employed by the Naval Criminal Investigative Service ("NCIS") at the time the events underlying the Complaint took place. [#1 at 3]. Defendant Tucker was commissioned with the United States Navy and Defendant Newell was employed by the New York State Police acting under the direction of NCIS. [Id.]
Plaintiff alleges that on June 7, 2012, Defendant Price unlawfully confiscated Plaintiff's personal properly, including several firearms, and a DNA sample before placing Plaintiff into confinement. [#1 at 5-7]. Defendant Price later falsified his report concerning the personal property. [Id. at 5-7]. That same day, while escorting Plaintiff, Defendant Tucker's "gross negligence caused Plaintiff to fall," during which he suffered a spinal injury. [Id. at 12]. Defendant Tucker deterred the medical personnel who attempted to assist Plaintiff after the fall, and offered Plaintiff pain medication only if he pleaded guilty. [Id.] Plaintiff alleges that on an unspecified date, Defendant Newell "knowingly and maliciously charged [him] with felony, despite knowing that the maximum lawful charge was a misdemeanor." [Id. at 8]. Plaintiff further alleges that, on an unspecified date, Defendant Price refused his request for an attorney during a police interrogation, and Defendants Newell and Price acted in concert to execute an arrest warrant for Plaintiff after his release from the hospital to conceal Plaintiff's medical condition from the arresting officers. [Id. at 9, 10]. Plaintiff asserts that Defendant Price concealed and omitted exculpatory information in his reports regarding the arrest and detainment of Plaintiff. [Id. at 10-11]. Several months later, following a November 28, 2012, phone call toDefendant Brittingham to inquire after the return of his personal property, Defendant Price arrived at Plaintiff's residence "and accosted his landlord demanding to know anything potentially incriminating about Plaintiff and further threatening her with imprisonment." [Id. at 10]. Plaintiff alleges generally that Defendants May, Brittingham, Price, and Tucker "had a duty to keep [him] from harm and willfully failed to do so," concealed Plaintiff's spinal cord injury to protect Defendants Price and Tucker, and generally "failed to investigate and instead lied to prosecutors, used intimidation, and wrote false reports." [Id. at 13].
On March 31, 2015, the NCIS Defendants filed the Motion to Dismiss, arguing that the court lacks personal jurisdiction over them because Plaintiff has not alleged they had any contact with the state of Colorado. [#46]. In the alternative, the NCIS Defendants ask that the court order Plaintiff to amend his Complaint "to provide a comprehensive chronological narrative, to identify the date on which the alleged...
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