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Ricketts v. Maggard

United States District Court, D. Minnesota

April 22, 2019

David E. Ricketts, Plaintiff,
v.
Officer Maggard, and all others not known to defendant, B. Birkolz, Assistant Warden of Medical AW, Jessica Feda, DPT OCS Public Health Service Head of Physical Therapy, Dr. Nassaralla Defendants.

          ORDER

          HILDY BOWBEER UNITED STATES MAGISTRATE JUDGE.

         The above-captioned case comes before the undersigned on Plaintiff David E. Ricketts's self-styled “Bivens Action Motion TORT CLAIM” [Doc. No. 15], his Motion to Amend [Doc. No. 16], and his April 10, 2019, Letter [Doc. No. 17] in response to this Court's March 21, 2019, Order [Doc. No. 9]. The case was referred for resolution of pretrial matters pursuant to 28 U.S.C. § 636 and District of Minnesota Local Rule 72.1.

         I. BACKGROUND[1]

         Plaintiff who is currently incarcerated in FMC-Rochester, initiated this lawsuit alleging under 42 U.S.C. § 1983 that Defendants have been deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. See generally (Compl. [Doc. No. 1].) Plaintiff, proceeding pro se, paid the filing fee and is not proceeding in this case in forma pauperis. See (Mar. 21 Order at 1.)

         In its March 21 Order, the Court described several issues concerning both the capacity in which the Defendants were being sued and how Plaintiff wished to proceed with service of process. The Court therefore requested Plaintiff take certain steps to clarify his intentions as to these issues. See (id. at 1-4.) Specifically, the Court requested that Plaintiff clarify whether he intended to sue the named Defendants in both their official and individual capacities, and whether he wished to have the United States Marshals Service serve the Defendants pursuant to Federal Rules of Civil Procedure 4(c)(3). As to the latter issue, the Court directed Plaintiff to the fee schedule for service by the Marshals, which is found in 28 C.F.R. § 0.114(a). In addition the Court replicated relevant portions of the fee schedule in the Order. (Id. at 3 n.1.) Finally, the Court also instructed the Clerk's Office to provide summonses and USM Forms to Plaintiff for Defendants Maggard, Birkolz, and Feda, instructing him to complete and return the forms to the Clerk's office if he wished to have the Marshals effect service under Rule 4(c)(3). (Id. at 3, 9.)

         Plaintiff confirmed in writing his desire to sue the named Defendants in both their “professional”[2] and individual capacities and his understanding that the U.S. Marshals Service is required by statute to charge him for making or attempting service. See (Pl.'s Mar. 29 Letter [Doc. No. 13]; Apr. 1 Order [Doc. No. 14].) Plaintiff also manifested his willingness to pay the fees, but requested that he be told what these fees are. See (Mar. 29 Letter.) In response, the Court again referred Plaintiff “to 28 C.F.R. § 0.114(a) for the full fee schedule.” (Apr. 1 Order at 2 n.1.)

         Further, as an incarcerated person, Plaintiff's Complaint was screened pursuant to 28 U.S.C. § 1915A(a). The Court issued a Report and Recommendation (“R&R”) on March 21, 2019, recommending that Dr. Nassaralla be dismissed from the case. See (R&R [Doc. No. 8 at 5-6].) In an apparent response to the R&R, Plaintiff filed his Amended Complaint and Motion to Amend[3] on April 1, and April 4, 2019, respectively. Plaintiff also submitted his USM forms for service on April 10, 2019, and provided the original Complaint as enclosures to the USM forms.

         II. DISCUSSION

         A. Plaintiff's “Bivens Action Motion TORT CLAIM” Should Be Treated as an Amended Complaint

         The only reasonable way to construe Plaintiff's self-styled “Bivens Action Motion TORT CLAIM” is as an amended pleading; there are factual allegations and claims for relief that include not only the allegations and claims contained in the original complaint but also additional allegations and claims, largely reflective of those contained in Plaintiff's Motion to Amend. Compare ([Doc. No. 15, with Doc. Nos. 1, and 16].) Consequently, the Court will construe Plaintiff's “Bivens Action Motion TORT CLAIM” as his Amended Complaint (“Am. Compl.”) and will refer to it as such hereafter. Cf. Stone, 364 F.3d at 914.

         Under Rule 15(a)(1) of the Federal Rules of Civil Procedure, “[a] party may amend its pleading once as a matter of course within: (A) 21 days after serving it.” Here, service has not been perfected and so the Amended Complaint was received within the requisite time. Therefore, the Court considers the Amended Complaint as the operative pleading in this action, supplanting his original Complaint.[4] In addition, the Court notes that the Amended Complaint names the Defendants in both their official and individual capacities. (Am. Compl. at 5-6; see also Mot. to Amend at 1; Pl.'s Mar. 29 Letter at 1.)

         Because the Amended Complaint is now the operative pleading, there is no point in serving the original Complaint on Defendants Maggard, Birkolz, and Feda.[5]Consequently, the Court directs the Clerk's Office to (a) provide the completed USM forms and copies of the Amended Complaint to the Marshals Service so that they may serve the United States and Defendants Maggard, Birkolz, and Feda in their official capacities, and (b) include waiver of service packets for these Defendants in their individual capacities. Also, for clarity of the docket, the Court will add the designation “Amended Complaint” to the docket entry for Plaintiff's “Bivens Action Motion TORT CLAIM.”

         B. Plaintiff's Request for Information About the Fees for Service

         In Plaintiff's most recent letter to the Court, he again requests information pertaining to the service fees that he is responsible for under Federal Rules of Civil Procedure 4(c)(3) pursuant to his request that the Marshals Service effect service of process on Defendants. See (Apr. 10 Letter.) In the Court's prior correspondences with Plaintiff, it pointed him to the relevant information, which is contained in 28 C.F.R. ยง 0.114(a), and provided him with relevant portions of the ...


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