United States District Court, D. Oregon, Eugene Division
GEORGE P. LIVESLEY, Plaintiff,
CITY OF SPRINGFIELD, et al, Defendants.
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE.
P. Livesley ("Plaintiff) brings this pro se
action against the City of Springfield, City of Springfield
Police Department, City of Springfield Police Officer Steven
Stone, John Doe 1 (jailer), John Doe 2 (off-duty officer),
and Jane Doe 1 (recog. coordinator) (collectively,
"State Defendants"), and PeaceHealth Medical Lab
and Jane Doe 2 (supervisor of PeaceHealth Medical Lab). State
Defendants have moved to dismiss with prejudice under Rule
12(b)(5) of the Federal Rules of Civil Procedure
("FRCP") for insufficient service of process. For
the reasons herein, State Defendants' Motion to Dismiss
(doc. 5) is DENIED. Plaintiff shall have 30 days to properly
serve State Defendants under Rule 4(m) or to request for
further extension of time.
is a 73-year-old male with several medical conditions for
which he receives regular treatment. He has been treated for
Stage III kidney failure, inability to walk, right-sided
congestive heart failure, and congenital osteochondromatosis,
among other ailments. In a letter to the Court one of his
doctors states that Plaintiff has a number of serious medical
conditions which have rendered him essentially totally
9, 2016, Plaintiff was scheduled to have his blood drawn at
PeaceHealth Medical Lab but arrived after his appointment
time and after PeaceHealth had closed. Because the front door
was locked, Plaintiff drove his car toward the door and
parked on the adjacent sidewalk- Plaintiffs medical
conditions necessitate mobility assistance so he states that
he was attempting to use his car door as standing support.
"rattled" the locked door to get the attention
PeaceHealth's employees and spoke to a PeaceHealth
supervisor, to whom he refers to as "Jane Doe 1" in
the Complaint. Jane Doe 1 "became instantly
unpleasant," commented on Plaintiffs sidewalk-parking,
and called the police. Plaintiff got back into his car to
leave but was approached by Officer Stone of the Springfield
Police Department. Officer Stone asked that Plaintiff put his
hands behind his back and arrested him for a DUI after he
failed a field sobriety test.
told Officer Stone that osteochondromatosis was a serious
bone disease that made complying with the field sobriety test
impossible. Plaintiff alleges that he was cuffed "to the
point of causing severe pain" and taken to a jail cell
where he requested a phone book to call his attorney. Officer
Stone provided him a "seven-year out-of-date telephone
directory" and refused to provide an up-to-date
directory because he did not believe it was constitutionally
required. Plaintiff also states that he was jostled around by
the jailer and was further harassed by an off-duty officer.
his release, Plaintiff requested that the DUI charge be
dropped because he "blew 0.00 twice on
breathalyzer" but the city attorney refused. Officer
Stone explained that the objective evidence "did not
appreciate his observed findings on field testing."
Plaintiff states that he has endured debilitating back pain
and has spent nearly $10, 000 in costs associated with
Officer Stone's treatment and these charges.
asserts Fourth Amendment violations for excessive force and
claims for battery and false imprisonment resulting from his
detention and arrest on June 9, 2016 against some or all of
the State-Defendants. Plaintiff also alleges that the
"tortious conduct" of some or all of the
Medical-Defendants were a "substantial factor and legal
cause" of his injuries. State Defendants move to dismiss
under FRCP 12(b)(5) for insufficient service of process and
request dismissal with prejudice because Plaintiffs claims
are barred by the applicable statute of limitations.
Plaintiff filed response motion titled "Plaintiffs
Response to Defendant's City of Springfield and Steven
Stone's Motion to Dismiss & Plaintiffs Motion to
Postpone"-in which Plaintiff explains that he is too ill
to adequately address State Defendants' motion,
12(b)(5) authorizes a defendant to move for dismissal due to
insufficient service of process. See Fed. R. Civ. P.
12(b)(5). When a defendant challenges service, the plaintiff
bears the burden of establishing the validity of service as
governed by Rule 4. See Brocbneyer v. May, 383 F.3d
798, 801 (9th Cir. 2004). If the plaintiff is unable to
satisfy its burden of demonstrating effective service, the
court has discretion to either dismiss or retain the action.
See Stevens v. Sec. Pac. Nat'l Bank, 538 F.2d
1387, 1389 (9th Cir. 1976).
reasons below, an extension of time for Plaintiff to properly
serve State Defendants is warranted. State Defendants'
Motion to Dismiss with prejudice due to statute of limitation
concerns is therefore moot.
courts generally lack personal jurisdiction over defendants
unless the defendant has been served in accordance with Rule
4. Travelers Cas. & Sitr. Co. of Am. v.
Brenneke,551 F.3d 1132, 1135 (9th Cir. 2009). Rule 4
"is a flexible rule that should be liberally construed
so long as a party receives sufficient notice of the
complaint." Benny v. Pipes,799 F.2d 489, 492
(9th Cir. 1986) (internal citation and quotation marks
omitted). However, "[n]either actual notice, nor simply
naming the person in the caption of the complaint, will
subject defendants to personal jurisdiction if service was