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Shipp v. Stoner

United States District Court, W.D. Arkansas, Texarkana Division

January 9, 2019

CRAIG SHIPP PLAINTIFF
v.
MELISSA STONER, DIANE CUNNINGHAM, et al. DEFENDANTS

          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 ...


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