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Livesley v. City of Springfield

United States District Court, D. Oregon, Eugene Division

January 22, 2019

GEORGE P. LIVESLEY, Plaintiff,
v.
CITY OF SPRINGFIELD, et al, Defendants.

          OPINION AND ORDER

          ANN AIKEN, UNITED STATES DISTRICT JUDGE.

         Gorge 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.

         BACKGROUND

         Plaintiff 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 disabled.

         On June 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.

         Plaintiff "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.

         Plaintiff 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.

         After 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.

         Plaintiff 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, [1]

         LEGAL STANDARD

         Rule 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).

         DISCUSSION

         For the 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.

         Federal 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 ...


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