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Robert Galloway v. George Arthur Nicola

July 13, 2012


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Defendant moves to dismiss Plaintiff's Complaint on the grounds that Plaintiff failed to properly serve Defendant with the Complaint and a summons, and that the statute of limitations bars Plaintiff's § 1983 claim. (Dkt. 10.) All parties have consented to proceed before a United States Magistrate Judge. (Dkt. 14.) The Court finds that the decisional process would not be significantly aided by oral argument, and, thus, the Court will decide this matter on the written motions, briefs, and record without oral argument.

D. Idaho L. Civ. R. 7.1(d). Having reviewed the record, and for the reasons discussed herein, the Court denies the Motion to Dismiss and enters the following Order.


During the time period at issue, Plaintiff was an inmate who was held in the custody of the Idaho Department of Correction (IDOC). He has since been released from prison and is proceeding in this action pro se. Defendant Dr. George Nicola, was employed by the Correctional Medical Services, the contracted medical provider for IDOC during the relevant time period.

Before Plaintiff was incarcerated with the IDOC, he had his left leg amputated just below the knee. During incarceration, on May 28, 2009, Defendant performed revision surgery on the remaining portion of Plaintiff's left leg. (Dkt. 1, p. 3.) In June of 2009, Plaintiff had a follow-up appointment with Defendant to assess the condition of his leg and monitor the healing process. (Dkt. 1-1, p. 1.) At the follow-up appointment, Defendant did not see Plaintiff but instead had a physician's assistant handle the entirety of the appointment. (Dkt. 1-1, pp. 1-2.) Plaintiff alleges that his leg was left in an inadequate cast, that Defendant did not insert a tube to collect excess blood, that muscle tissue remained unattached to the tibia and fibula, and that Defendant failed to provide follow-up care. (Dkt. 6-1.)

On June 9, 2011, after exhausting his administrative remedies through the Idaho State Board of Medicine and the Pre-Litigation Screening Panel, Plaintiff filed his initial Complaint alleging that Defendant was deliberately indifferent to the serious medical needs of Plaintiff at the time of the surgery and in follow-up care, violating 42 U.S.C. § 1983 and state medical malpractice laws. (Dkt. 1.) The Court then sent Plaintiff an Order of Conditional Filing, advising him that he could not proceed with his case until the Court issued an initial review order. (Dkt. 2.)

The Initial Review Order was issued on July 25, 2011. (Dkt. 5.) The Court ordered Plaintiff to file an amended complaint within 30 days. (Dkt. 5, p. 6.) Plaintiff alleges that, for reasons beyond his control, he was unable to see the Notary at the prison before August 25, 2011, one day past the 30-day deadline. On that day, Plaintiff signed and notarized his Motion to Amend Complaint and an Affidavit. The documents were then filed with the Court on August 29, 2011. (Dkt. 6.) The Court decided that the Complaint, together with the Affidavit, contained sufficient allegations to proceed. Plaintiff was ordered to serve the Complaint, Affidavit, and Order on Defendant within 120 days. (Dkt. 8, p. 2.)

As ordered by the Court, Plaintiff served Defendant with the Complaint, Affidavit, and Order on April 13, 2012. (Dkt. 9.) Defendant now moves to dismiss the Complaint on the following alternative bases: (1) Plaintiff failed to effectively serve Defendant within 120 days of filing the original Complaint; (2) Plaintiff did not serve Defendant with a summons; (3) Plaintiff's claims are barred by the statute of limitations; and (4) if Plaintiff has no viable § 1983 action, the Court does not have jurisdiction over Plaintiff's state law tort claims. (Dkt. 10.)


In federal court, pro se litigants are afforded liberal treatment in asserting their claims, especially with regard to formal requirements. See Lim v. INS, 224 F.3d 929, 934 (9th Cir. 2000) (recognizing that courts frequently refuse to dismiss pro se appeals for formal defects where the opposing party suffers no prejudice); Balistreri v. Pacifica Police Dept., 901 F.2d 696, 698-99 (9th Cir. 1988). The Ninth Circuit has recognized that "it has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Id. at 699. Considering this liberal standard, and the lack of prejudice to Defendant, the Court denies Defendant's Motion to Dismiss and will allow Plaintiff to proceed on the merits of his claim, for the following reasons.

1. Failure to Serve Complaint Within 120 Days of Filing

Defendant argues that, because Plaintiff failed to effectively serve his Complaint within 120 days of filing, it should be dismissed. (Dkt. 10-1, p. 3.) Federal Rule of Civil Procedure 4(m) provides:

If service of the summons and complaint is not made upon the defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action without prejudice as to the defendant or direct that service be effected within a specified time; provided that if the plaintiff shows good cause for the failure, the court shall extend the time for service for an appropriate period.

The Federal Rules allow a defendant to move for dismissal if a plaintiff has insufficiently served process. Fed.R.Civ.P. 12(b)(5). Defendant here contends that, if Plaintiff cannot show that he accomplished effective service, it is within the court's discretion to either dismiss or retain the action. (Dkt. 10-1, p. 4) (citing Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d 1387, 1389 (9th Cir. 1976)). Because Defendant did not receive service of the June 9, 2011 Complaint until April 13, 2012, he argues that Plaintiff did not comply with the 120-day time limit. This argument fails to consider the application of 28 U.S.C. § 1915, which prevents an inmate from proceeding to service without the Court's authorization to do so. (See Order of Conditional Filing, Dkt. 2.) Because the Court did not review the Complaint until July 25, 2011, and did not review the Amended Complaint until December 16, 2011, the 120-day time period set by Rule 4(m) is inapplicable.

2. Failure to Serve a Summons with the Complaint

Defendant next argues that, if the Court considers the December 16, 2011 Order to be the start of the 120-day time limit, the service, though timely, is still deficient because Defendant was not served with a ...

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