Ross v. United States

• Decision Date: 02 November 1983
• Docket Number: No. 81 Civ. 3078 (KTD).,81 Civ. 3078 (KTD).
• Citation: 574 F. Supp. 536
• Parties: William ROSS, Plaintiff, v. UNITED STATES of America, United States Parole Commission, Warden, Marion Penitentiary, Lawrence A. Carpenter, former Regional Director USPC, Maurice H. Sigler, former Chairman USPC, Curtis C. Crawford, former Vice-Chairman USPC, George J. Reed, former member USPC, Thomas R. Holscaw, former member USPC, Defendants.
• Court: U.S. District Court — Southern District of New York

574 F. Supp. 536

William ROSS, Plaintiff, v. UNITED STATES of America, United States Parole Commission, Warden, Marion Penitentiary, Lawrence A. Carpenter, former Regional Director USPC, Maurice H. Sigler, former Chairman USPC, Curtis C. Crawford, former Vice-Chairman USPC, George J. Reed, former member USPC, Thomas R. Holscaw, former member USPC, Defendants.

No. 81 Civ. 3078 (KTD).

United States District Court, S.D. New York.

November 2, 1983.

Richard W. Foard, III, New York City, for plaintiff.

Rudolph W. Giuliani, U.S. Atty. for the Southern Dist. of N.Y., New York City, for defendants; Michael D. Patrick, Sp. Asst. U.S. Atty., New York City, of counsel.

MEMORANDUM & ORDER

KEVIN THOMAS DUFFY, District Judge:

Plaintiff, William Ross, moves for a default judgment against the defendants United States of America, United States Parole Commission ("USPC"), Warden of the Marion Penitentiary, Lawrence A. Carpenter, Maurice H. Sigler, Curtis C. Crawford, George J. Reed, and Thomas R. Holscaw for their delay in answering plaintiff's complaint. Defendants oppose this motion and cross-move for dismissal, asserting lack of personal and subject matter jurisdiction, insufficiency of process, and improper venue. For the reasons that follow, plaintiff's motion is denied and defendants' motion is granted in part and denied in part.

I. BACKGROUND

Plaintiff brings this Bivens action for violation of his Fifth and Eighth Amendment rights while he was in a federal prison. His Fifth Amendment claim arises out of the allegedly intentional and improper delay in granting him parole; the Eighth Amendment claim is based on the defendants' alleged indifference to the plaintiff's medical needs.

In 1972, plaintiff began serving a ten-year sentence for selling narcotics. He eventually was transferred to the Marion Penitentiary in Illinois. On three occasions while he was at Marion, Ross successfully brought habeas corpus petitions for the institution's wrongful denial of parole consideration. Ross originally was denied parole consideration because he had been determined guilty of possession of narcotics in a disciplinary hearing by the prison. The latter determination, however, was found by an Illinois district court to have been reached without due process of law. United States ex rel. Ross v. Warden, 428 F.Supp. 443 (E.D.Ill.1977). On Ross' third successful petition, the district court ordered that Ross be granted parole within five days. United States ex rel. Ross v. Warden, No. 75-3262 (E.D.Ill. June 7, 1977). See also United States ex rel. Ross v. Warden, 368 F.Supp. 766 (E.D.Ill.1973) (plaintiff's first successful habeas corpus petition).

Plaintiff also claims that during the period of incarceration at Marion Penitentiary he was consistently refused treatment for severe medical problems, including, but not limited to, gastritis, ulcer, muscle pain in his back, and various psychological conditions.

On June 19, 1981, approximately four years after his release from prison, Ross filed a pro se complaint. On August 18, 1981 defendant Miller filed an answer to the complaint claiming, inter alia, that the action was barred by the statute of limitations and that the court lacked subject matter jurisdiction over the action. Plaintiff then requested on October 22, 1981, a court-appointed attorney. On August 16, 1982 plaintiff's newly appointed counsel signed a stipulation with defendant agreeing that defendant would not be waiving any affirmative defenses by agreeing to accept plaintiff's amended complaint. Plaintiff filed an amended complaint on August 27, 1982. The summons and purported proofs of service of process were filed on October 5, 1982. On December 23, 1982, plaintiff and the defendants filed a Stipulation and Order voluntarily dismissing the complaint against several individuals allegedly connected to the USPC. Finally, on February 28, 1983 plaintiff filed a motion for default judgment due to defendant's delay in answering the amended complaint; the defendant responded on March 17, 1983 and cross-moving for dismissal.

II. DISCUSSION

A. Motion for Default

Fed.R.Civ.P. 55(e) provides that "no judgment by default shall be entered against the United States or an officer or agency thereof unless the claimant establishes his claim or right to relief by evidence satisfactory to the court." This language is more restrictive than the standard for default entitlement against non-United States defendants. See Fed.R.Civ.P. 55(a). Mere failure to respond to the complaint within sixty days does not justify entry of default judgment. See United States v. Zulli, 418 F.Supp. 252 (E.D.Pa.1976); Greenbaum v. United States, 360 F.Supp. 784 (E.D.Pa.1973). Default is especially inappropriate when the government responds to the complaint by answer or motion soon thereafter. See 6 J. Moore, Moore's Federal Practice § 55.12 at 55-321 to 55-322 (1982). Although default has been granted in cases in which the government disobeyed a direct court order, see, e.g., Alameda v. Secretary of Health, Education and Welfare, 622 F.2d 1044 (1st Cir.1980); International Association of Machinists & Aerospace Workers v. National Mediation Board, 314 F.Supp. 229 (D.C.D.C.1969), no such argument was made here.

Finally, the period of delay was not egregious. In fact, over fourteen months passed between the filing of plaintiff's pro se complaint, and the filing of his amended complaint, which the defendant United States had agreed all along to accept. Several more months passed after the amended complaint was filed before plaintiff designated exactly which defendants were to be sued. During much of this time in 1981 and 1982, plaintiff was attempting to secure counsel and to determine whom he intended to sue. On the other hand, three months passed between the stipulation of December 23, 1982, which finally established which defendants were being sued, and the defendant's filing of a motion to dismiss. This delay pales in comparison to plaintiff's delay in prosecuting this suit. Accordingly, plaintiff's motion for default judgment is denied.

B. Motion to Dismiss

The government moves to dismiss the complaint on the grounds of lack of subject matter jurisdiction, lack of personal jurisdiction, improper venue, insufficiency of process, insufficiency of service of process, and statute of limitations. For the reasons that follow, I grant the motion as against all defendants except Warden Miller.

(1) Waiver of Defenses

I first address the preliminary issue whether the defendants waived all the asserted defenses except lack of subject matter jurisdiction. Fed.R.Civ.P. 12(h)(1) provides:

A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Courts also generally have required that these defenses are timely asserted. See, e.g., Farmers Elevator Mutual Insurance Co. v. Carl J. Austaud & Sons, Inc., 343 F.2d 7 (8th Cir.1965).

Defendants obviously made a motion asserting these defenses; the only question is whether it was timely. For many of the same reasons that led me to conclude that default was inappropriate I find that the motion was timely made. The total time between the filing of the amended complaint and the motion to dismiss was 202 days. Defendants had by statute and by extensions granted by plaintiff, 178 days to answer the amended complaint. Also during that time, defendants' and plaintiff's counsel negotiated and agreed to dismiss the suit against five defendants. A stipulation and order was signed and filed with this court, making such a dismissal on December 23, 1982. Given the complexity and the large number of legal grounds presented in the motion, I cannot find a 24 day delay sufficient to result in a waiver of defendants' affirmative defenses. Moreover, plaintiff was aware since 1981 that defendants were going to make the instant motion. Therefore, he cannot argue surprise or lack of notice.

Defendant Warden Miller, however, presents a different situation. Warden Miller was the only defendant to file an answer to plaintiff's original pro se complaint. In that answer, however, defendant Miller asserted only the defenses of failure to state a cause of action, good faith immunity, lack of subject matter jurisdiction, and statute of limitations. Thus, Miller at that point had waived the defenses of lack of personal jurisdiction, insufficiency of service of process, and insufficiency of process. Once waived, Miller cannot resurrect the defenses merely because plaintiff amended his complaint. As the Fourth Circuit recently noted:

The leading commentators are in accord that, once having waived the defense of lack of jurisdiction over the person, as the defendant clearly did, Rule 12(g) prevents the defense from being revitalized even though plaintiffs amended their complaint and provided the defendant with an opportunity to file a new motion under Rule 12, or an answer setting forth a defense which Rule 12 would permit to be presented by motion. 2A Moore's Federal Practice ¶ 12.22, pp. 2442-43 (1974); Wright and Miller, Federal Practice and Procedure § 1388, p. 845 (1969). They conclude, and we agree, that an amendment to the pleadings permits the responding pleader to assert only such of those defenses which may be presented in a motion under Rule 12 as were not available at the time of his response to the initial pleading. An unasserted defense available at the time of response to an initial pleading may not be asserted when the initial pleading is amended.

Rowley v. McMillan, 502 F.2d 1326, 1332-33 (4th Cir.1974). See also Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1155 (2d Cir.1968) (personal...