United States District Court, W.D. Arkansas, Texarkana Division
ORDER
Susan
O. Hickey United States District Judge.
Before
the Court is the Partial Motion to Dismiss filed by
Defendants Melissa Stoner and Diane Cunningham. (ECF No. 52).
Plaintiff Craig Shipp has responded. (ECF No. 59). The Court
finds the matter ripe for consideration.
I.
BACKGROUND
On
January 31, 2018, Plaintiff, represented by counsel, filed
this action pursuant to 42 U.S.C. § 1983, in connection
with alleged constitutional deprivations that occurred while
he was incarcerated in the Arkansas Community Correction,
Southwest Arkansas Community Correction Center in Texarkana,
Arkansas. Plaintiff asserts claims of cruel and unusual
punishment and deliberate indifference, as well as state-law
negligence claims, against various Defendants, including
Defendants Stoner and Cunningham. On January 31, 2018,
summonses were issued to Plaintiff's counsel for service
on all Defendants. On March 28, 2018, Plaintiff filed an
amended complaint that, inter alia, identified a
John Doe defendant and removed another defendant as a party
to this matter. On November 8, 2018, Plaintiff filed a second
amended complaint.
On
October 28, 2018, Plaintiff filed a motion indicating that he
had not served Defendants Stoner and Cunningham within the
ninety-day period provided by the Federal Rules of Civil
Procedure. Plaintiff asked the Court to grant him a
forty-five-day extension of his time to serve those
Defendants. On November 7, 2018, the Court, applying Federal
Rule of Civil Procedure 4(m), found that Plaintiff had shown
sufficient excusable neglect to warrant an extension of his
time to serve Defendants Stoner and Cunningham. Thus, the
Court ordered Plaintiff to demonstrate perfected service on
Defendants Stoner and Cunningham within thirty days or his
claims against those Defendants would be dismissed without
prejudice. On November 13, 2018, Plaintiff filed executed
summonses on Defendants Stoner and Cunningham.
On
December 3, 2018, Defendants Stoner and Cunningham filed
their answer to Plaintiff's second amended complaint
along with the instant motion. They seek dismissal of
Plaintiff's state-law negligence claims against them
pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing
that he failed to state a claim upon which relief may be
granted. Alternatively, they argue that the Court should
reconsider and modify its November 7, 2018 order to disallow
the extension of Plaintiff's time to serve his state-law
negligence claims on Defendants Stoner and Cunningham.
Plaintiff opposes the motion.
II.
DISCUSSION
The
instant motion seeks dismissal of Plaintiff's state-law
negligence claims against Defendants Stoner and Cunningham
for two reasons. They argue first that dismissal is proper
under Rule 12(b)(6) for failure to state a claim upon which
relief may be granted and, second, that the Court should
reconsider and modify its November 7, 2018 order to disallow
the extension of Plaintiff's time to serve his state-law
negligence claims, effectively dismissing those claims
against them. The Court will take up the former argument and,
if necessary, will then address the latter argument.
A.
Rule 12(b)(6) Argument
Defendants
Stoner and Cunningham argue that Plaintiff has failed to
state a negligence claim against them upon which relief may
be granted and, accordingly, dismissal of those claims is
appropriate.
To
survive a Rule 12(b)(6) motion to dismiss, a pleading must
provide “a short and plain statement of the claim that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). The purpose of this requirement is to “give
the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.” Erickson v.
Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The Court
must accept as true all factual allegations set forth in the
complaint, drawing all reasonable inferences in
Plaintiff's favor. See Ashley Cnty., Ark. v. Pfizer,
Inc., 552 F.3d 659, 665 (8th Cir. 2009).
However,
the complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting
Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. “A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.' Nor does a
complaint suffice if it tenders ‘naked assertions'
devoid of ‘further factual enhancement.'”
Id. (internal citations and alterations omitted)
(quoting Twombly, 550 U.S. at 555, 557). In other
words, “the pleading standard Rule 8 announces does not
require ‘detailed factual allegations,' but it
demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation.”
Id. (quoting Twombly, 550 U.S. at 555).
In
considering a motion to dismiss under Rule 12(b)(6),
“the complaint should be read as a whole, not parsed
piece by piece to determine whether each allegation, in
isolation, is plausible.” Braden v. Wal-Mart
Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009). The
issue in considering such a motion is not whether Plaintiff
will ultimately prevail, but whether Plaintiff is entitled to
present evidence in support of the claim. See Nusku v.
Williams, 490 U.S. 319, 327 (1989).
Defendants
Stoner and Cunningham argue that Plaintiff did not
specifically allege that they were negligent. Rather, they
argue that Plaintiff only specifically alleged that Separate
Defendants Lemdja and Lomax were negligent, and further made
vague references to “other” employees, which is
insufficient to state a plausible claim under Rule 8. Thus,
they ...