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Ninth Circuit Vacates FRCP 4(m) Dismissal Without Notice

Ninth Circuit Vacates FRCP 4(m) Dismissal Without Notice

by Mark Wilson

The Ninth Circuit Court of Appeals held on October 30, 2013 that a district court’s failure to provide notice before dismissing a complaint for non-service and denying leave to amend were abuses of discretion.

Nevada state prisoner John Crowley suffers from bipolar disorder, delusions, Parkinson’s disease and hypertension. While confined at the Lovelock Correctional Center (LCC), he was prescribed Lithium three times a day.

After Crowley was transferred to the High Desert State Prison on April 16, 2009, however, his prescription for Lithium was changed to larger doses twice a day. Prison officials claimed that Dr. Daniel Sussman altered the prescription, though he had not examined Crowley.

On May 10 and 14, 2009, Crowley’s cellmate alerted medical staff that Crowley was unresponsive and acting “bizarre.” They did nothing until admitting him to the infirmary on May 16, when a guard reported similar unusual behavior.

A physician examined Crowley two days later and sent him to a hospital emergency room. He remained hospitalized for three weeks, undergoing treatment for Lithium toxicity and dehydration.

Crowley filed suit in federal court alleging that prison medical staff were deliberately indifferent to his serious medical condition. After the complaint was dismissed on initial screening, he filed his first amended complaint. Before the court or defendants took any action, Crowley filed a second amended complaint and requested leave to amend again once he learned the names of the correct defendants.

The district court issued an April 25, 2011 order directing the Nevada Attorney General (AG) to advise the court within 21 days whether she would accept service for the named defendants. The order also directed Crowley to “file a motion requesting the issuance of a summons and specifying a full name and address” for any defendant for whom the AG refused service, within 120 days of the refusal.

Crowley’s copy of the order was returned to the court as undeliverable on May 2, 2011, because he had been transferred back to LCC. The order was not resent because the district court did not have Crowley’s current address.

On May 9, 2011, Crowley notified the court of his address change, but the April 25 order was never sent to him at LCC.

Dr. Sussman was the only defendant for whom the AG refused service. Crowley did not serve Dr. Sussman within 120 days, and the district court sua sponte dismissed the action against Sussman without providing notice to Crowley under FRCP 4(m).

The court then granted summary judgment to all the remaining defendants and dismissed the case without ruling on Crowley’s motion to amend his complaint.

Crowley appealed and the Ninth Circuit reversed the dismissal of the claims against Dr. Sussman.

“Because the record does not reflect that the district court provided the required Rule 4(m) notice prior to the entry of judgment in favor of Dr. Sussman,” the Court of Appeals found that Crowley “was ‘precluded from attempting to show good cause’ or excusable neglect for his failure to serve Dr. Sussman in a timely manner.” As such, the district court had abused its discretion.

The appellate court also concluded that denying Crowley leave to amend “to name the correct defendants and to discover whether any delays on their part in providing medical treatment caused or exacerbated his Lithium toxicity” was an abuse of discretion. The district court’s grant of summary judgment to the other defendants was affirmed. Accordingly, the Ninth Circuit vacated in part, affirmed in part and remanded the case for further proceedings.

Following remand, the district court granted Crowley’s motion to appoint counsel on May 8, 2014. The case remains pending. See: Crowley v. Bannister, 734 F.3d 967 (9th Cir. 2013).


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Related legal case

Crowley v. Bannister