# PHAM v. WALTERS

> District Court, M.D. Pennsylvania · January 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10412722

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** January 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10412722

## How later opinions describe it (automated extraction)

- noting that “a defendant in a civil rights action must have personal involvement in the alleged wrongs”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHUAN PHU PHAM, Civil No. 3:22-cv-344
Plaintiff (Judge Mariani)
v .
MS. H. WALTERS, et al, .
Defendants □
MEMORANDUM
Plaintiff Anthuan Phu Pham (“Pham”), a former inmate’, who was housed at all
relevant times at the United States Penitentiary, Canaan, Pennsylvania, (“USP-Canaan’),
initiated this action pursuant to Bivens?, 28 U.S.C. § 1331. Named as Defendants are Dr.
Diane Sommer, Acting Clinical Director; Jeremy Simonson, Health Service Assistant;
Heather Walters, Physician Assistant; Eric Bradley, Warden, and Dr. S. Mowatt. Presently
ripe for disposition is a motion (Doc. 23) to dismiss and for summary judgment by
Defendants Sommer, Simonson, Walters, and Bradley. For the reasons set forth below, the
Court will grant the motion for summary judgment. The Court will also dismiss the action
against Dr. Mowatt pursuant to Federal Rule of Civil Procedure 4(m).

1 Pham has been released from custody. See Federal Bureau of Prisons Inmate Locator,
available at: https://www.bop.gov/inmateloc/ (last accessed January 4, 2023),
2 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
In Bivens, the Supreme Court created a limited federal tort counterpart to the remedy created by 42 U.S.C.
§ 1983 as it applies to federal officers.

I. Statement of Undisputed Facis*
Pham arrived at USP-Canaan on October 28, 2019. (Doc. 24 23). During his
intake health screen on October 28, 2019, Pham indicated he had been shot nine times in
May 2016 and was subsequently prescribed pain medication for his chronic pain. (Id. {| 24).
Those medications were continued at the same dosage. (/d.).
On January 7, 2019, Dr. Mowatt completed a 14-day Physician Evaluation, during
which Pham complained of his right-hand deformity, advised that he had been evaluated by
a hand surgeon but was informed he was not a surgical candidate, and reported he had
broken his clavicle on the left side. (/d. | 25). Dr. Mowatt maintained Pham on his pain
medications and requested a consult for EMG testing due to left arm numbness and
radiculopathy. (/d. J 26). Pham was placed into the orthopedic/rheumatology Chronic Care
Clinic following this encounter. (/d. 27).
On December 9, 2019, Pham reported that his chronic pain had not responded well
to the medications. (/d. J 28). Nurse Practitioner O'Connor increased his pain medications,
prescribed use of a cane, and scheduled Pham for a follow-up in a month. (/d.). Dr. Mowatt

3 Local Rule 56.1 requires that a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56 be supported “by a separate, short, and concise statement of the material facts, in numbered
paragraphs, as to which the moving party contends there is no genuine issue to be tried.” LOCAL RULE OF
CourT 56.1. A party opposing a motion for summary judgment must file a separate statement of material
facts, responding to the numbered paragraphs set forth in the moving party's statement and identifying
genuine issues to be tried. /d. Unless otherwise noted, the factual background herein derives from
Defendants’ Rule 56.1 statement of material facts. (Doc. 24). Pham did not file a response to Defendants’
statement of material facts. The Court accordingly deems the facts set forth by Defendants to be
undisputed. See LOCAL RULE OF CourT 56.1; see also Doc. 30 § 3 (advising Pham that failure to file a
responsive statement of material facts would result in the facts set forth in Defendants’ statement of
material facts being deemed admitted).

co-signed the order and authorized the increase of pain medications and cane prescription.
(Id.).
On January 19, 2020, Pham refused his pain medications and became “verbally
aggressive/threatening towards medical staff’ and stated his desire to go on Wellbutrin, a
non-pain medication. (/d. | 29).
On February 3, 2020, Pham underwent an EMG, which showed a neuropathy in his
bilateral upper extremities and that his condition was chronic and that his “[symptoms] can
be managed, but not cured.” (/d. ¥ 30).
On February 12, 2020, Pham’s cane was taken from him after he was seen
repeatedly not using it. (/d. ] 31). He admitted that he did not need it all the time. (/d.).
On April 28, 2020, although acknowledging that the pain medication regimen had
been “very helpful”, Pham was again evaluated for chronic pain. (/d. 9 32). His pain
medications were adjusted to allow bedtime ingestion because he reported they caused
“daytime drowsiness.” (/d.).
On June 1, 2020, physician assistant, certified (“PA-C”) Walters renewed Pham's
pain medications at the same dosage. (Id. J 33).
On June 5, 2020, Pham was observed diverting his pain medication by prison staff.
(Id. | 34). As a result, two of his pain medications were discontinued on June 11, 2020.
(Id.).

On August 12, 2020, Pham was evaluated due to suspicion that he had ingested
illicit drugs. (/d. ¥ 35).
On October 16, 2020, Pham refused pain medications. (/d. § 36). His continued
refusals and poor compliance reflected that no “benefit of medication prescribed is possible”
and his medications were discontinued pursuant to the pill line procedure. (/d.).
On February 2, 2021, Dr. Buschman evaluated Pham in the Chronic Care Clinic,
during which Pham reported he had 5/10 aching pain in multiple areas and demanded
Wellbutrin and Gabapentin. (/d. $37). Dr. Buschman advised Pham that his recent
diversion rendered him ineligible for Gabapentin but nevertheless offered to change Pham’s
medication regimen. (/d. | 38). Pham declined that offer, and Dr. Buschman renewed
Pham’s pain medications. (Id.).
On March 3, 2021, Pham complained of pain and requested a dose increase. (ld. f
39). As he had been complying with pill line, PA-C Carey increased his dosage. (/d.). Dr.
Sommer co-signed the increase. (/d.).
On June 24, 2021, Pham was seen for sick call, during which he reported ongoing
chronic lower back pain secondary to the gunshot wound before his incarceration and noted
that trigger point injections had historically provided relief. (/d. 40). PA-C Carey
prescribed new pain medications and ordered an x-ray of Pham’s lumbar spine. (/d.).
On July 10, 2021, Pham was involved in an inmate-on-inmate altercation. (/d. ¥ 41).
He was evaluated in health services for injuries and reported a superficial laceration on his

neck, denied any further injuries, and made no additional complaints. (/d.). Pham was
involved in another inmate-on-inmate altercation on July 18, 2021, which required the use of
chemical munitions and his placement in ambulatory restraints. (Id. J 42). He was
evaluated in health services for injuries and reported he generally “hurt everywhere.” (/d.).
On August 10, 2021, Pham requested band-aids and bacitracin for small wounds on
his lower extremities. (/d. J 43). He complained of no other issues. (/d.). PA-C Walters
performed an evaluation and noted Pham’s wounds were healing well and had no
erythema, swelling, or signs of infection. (/d.). PA-C Walters provided band-aids and
bacitracin. (/d.).
On August 31, 2021, PA-C Carey reviewed the results of Pham’s lumbar x-ray,
which revealed degenerative changes. (/d. ] 44). She referred him for a CT scan in
anticipation of trigger point injections. (/d.).
On November 2, 2021, Pham requested to increase his pain medication. (Id. J 45).
He was evaluated by PA-C Carey, who increased his pain medication and reminded Pham
he had an upcoming consult with a non-BOP pain management specialist. (/d.).
On November 18, 2021, Pham underwent a lumbar CT scan, which revealed
degenerative changes to his lumbar spine. (/d. J 46).
On December 3, 2021, Pham was evaluated by a non-BOP pain management
specialist, who offered medication recommendations. (Id. ] 47). Pham’s pain medications
were renewed on December 12, 2021. (Id. J 48).

Pham complained of chronic lower back pain on January 4, 2022 and requested an
MRI. (/d. 49). He was evaluated by certified registered nurse practitioner (“CRNP’)
Keelen, who referred Pham for an MRI. (/d.).
On February 3, 2022, Dr. Sommer submitted a request for a pain management
consultation. (/d. | 50).
On February 7, 2022, Dr. Chu evaluated Pham in the Chronic Care Clinic. (/d. 50).
Dr. Chu renewed Pham’s pain medication. (/d. | 51).
On February 8, 2022, CRNP Keelen evaluated Pham for a medication refill and as a
follow-up to Pham’s pain management encounter. (/d. 52). CRNP Keelen renewed
Pham’s medications and added a new medication. (/d.). Dr. Sommer co-signed the order
authorizing the new medication. (Id.).
On March 15, 2022, CRNP Keelen evaluated Pham, during which Pham reported
pain. (Id. 753). CRNP Keelen referred Pham to a physician. (/d.).
On March 16, 2022, Dr. Sommer referred Pham for another pain management
evaluation and requested that Pham be evaluated for bilateral medial branch block. (/d.
54). That evaluation was scheduled for May 11, 2022. (/d.).
On April 14, 2022, Dr. Chu evaluated Pham in the Chronic Care Clinic. (Id. J 55).
Dr. Chu renewed Pham’s pain medication and continued the established treatment plan.
(Id.).

ll. Legal Standards
A. Federal Rule of Civil Procedure 56
Through summary adjudication, the court may dispose of those claims that do not
present a “genuine dispute as to any material fact.” Feb. R. Civ. P. 56(a). “As to materiality,

... [o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the burden of showing the absence
of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving
party must offer specific facts contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
Therefore, the non-moving party may not oppose summary judgment simply on the basis of
the pleadings, or on conclusory statements that a factual issue exists. Anderson, 477 U.S.
at 248. “A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record . . . or showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact.” FED. R. Civ. P.
56(c)(1)(A)-(B). In evaluating whether summary judgment should be granted, “[t]he court
need consider only the cited materials, but it may consider other materials in the record.”

FED. R. Civ. P. 56(c)(3). “Inferences should be drawn in the light most favorable to the non-
moving party, and where the non-moving party's evidence contradicts the movant's, then
the non-movant’s must be taken as true.” Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974
F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).
However, “facts must be viewed in the light most favorable to the nonmoving party
only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the

summary judgment rule,
its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.
Id. (internal quotations, citations, and alterations omitted).
B. Bivens Claims
A Bivens civil rights action asserted under 28 U.S.C. § 1331 is evaluated using the

same standards applicable to a 42 U.S.C. § 1983 civil rights action. See Paton v. LaPrade,
524 F.2d 862, 871 (3d Cir. 1975). To state a claim under Bivens, a plaintiff must allege that
he was deprived of a federal right by a person acting under color of federal law. See Young
v. Keohane, 809 F. Supp. 1185, 1199 (M.D. Pa. 1992).

lll. Discussion
Defendants move for summary judgment on the following grounds: (1) Pham failed
to exhaust his administrative remedies; (2) even if Pham had properly exhausted, he cannot
establish an inadequate medical care claim; (3) Defendants Bradley and Simonson cannot
be held liable as supervisors; and (4) Defendants are entitled to qualified immunity. (See
Doc. 25). The Court decides Defendants’ motion purely on the merits and does not reach
the exhaustion issue.
A. Qualified Immunity
The doctrine of qualified immunity protects a government actor who has committed a
constitutional violation if the plaintiffs rights were not “clearly established” when the
individual acted. Pearson v. Callahan, 555 U.S. 223, 244-45 (2009). “Qualified immunity
balances two important interests—the need to hold public officials accountable when they
exercise power irresponsibly and the need to shield officials from harassment, distraction,
and liability when they perform their duties reasonably.” /d. at 231. “Thus, so long as an
Official reasonably believes that his conduct complies with the law, qualified immunity will
shield that official from liability.” Sharp v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012) (citing
Pearson, 555 U.S. at 244). The burden to establish qualified immunity rests with the
defendant claiming its protection. Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir.
2001).

A qualified immunity determination involves a two-pronged inquiry: (1) whether a
constitutional or federal right has been violated; and (2) whether that right was “clearly
established” at the time of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled in part by Pearson, 555 U.S. at 236 (permitting federal courts to exercise
discretion in deciding which of the two Saucier prongs should be addressed first). In
addressing Pham’s Eighth Amendment claim, the Court only reaches the first prong of the
qualified immunity analysis.
B. Eighth Amendment Bivens Claim
For the delay or denial of medical care to rise to an Eighth Amendment violation, a
prisoner must demonstrate: “(1) that defendants were deliberately indifferent to [his] medical
needs and (2) that those needs were serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999). Deliberate indifference requires proof that the official “knows of and disregards
an excessive risk to inmate health or safety.” Natale v. Camden Cnty. Corr. Facility, 318
F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)).
Deliberate indifference has been found where a prison official: “(1) knows of a prisoner's
need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving
needed or recommended treatment.” Rouse, 182 F.3d at 197. Deference is given to prison
medical authorities in the diagnosis and treatment of patients, and courts “disavow any
attempt to second-guess the propriety or adequacy of a particular course of treatment. . .

10

(which) remains a question of sound professional judgment.” Inmates of Allegheny Cnty.
Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44,
48 (4th Cir. 1977)). “Allegations of medical malpractice are not sufficient to establish a
Constitutional violation,” nor is “[m]Jere disagreement as to the proper medical treatment.”
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). A “failure to provide adequate care...
[that] was deliberate, and motivated by non-medical factors” is actionable under the Eighth
Amendment, but “inadequate care [that] was a result of an error in medical judgment’ is not.
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993); see also Estelle v. Gamble, 429 U.S.
97, 105-06 (1976).
Here, there is no evidence to permit the trier of fact to find that Defendants acted
with deliberate indifference to Pham’s serious medical needs. While Pham asserts that
Defendants failed to provide adequate medical care for the pain from his gunshot wound,
the record is replete with evidence that he received continual medical care for his condition.
Specifically, the record before the Court evinces that Pham reported his gunshot wound

upon arrival at USP-Canaan and his prior medication was continued, he was admitted to the
Chronic Care Clinic and received routine evaluations for his complaints, he underwent EMG

nerve testing, an x-ray, CT scan, MRI, and medial branch testing, and he was referred to
outside specialists for further treatment. The record further reflects that Defendants
continued to monitor and modify Pham’s pain medication regimen.

11

Pham’s primary complaint is that he received substandard medical care. This
argument implies Pham’s disagreement with a particular course of treatment and his own
lay opinion regarding the proper course of treatment for his pain. However, mere
disagreement with the selected course of treatment is not grounds for a medical deliberate
indifference claim. See Thomas v. Dragovich, 142 F. App’x 33, 36 (3d Cir. 2005)
(nonprecedential) (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987)). To the extent that Pham asserts that Defendants’ professional
judgment was deficient, this also is not enough to rise to the level of a constitutional
violation, and courts will not second guess whether a particular course of treatment is
adequate or proper. See Parham v. Johnson, 126 F.3d 454, 458 n.7 (3d Cir. 1997) (citing
Inmates of Allegheny Cnty. Jail, 612 F.2d at 762).
Moreover, Defendant Bradley is the Warden of USP-Canaan and is not a trained
member of the medical staff. Courts have repeatedly held that, absent some reason to
believe that prison medical staff are mistreating prisoners, non-medical corrections staff who
refer inmate medical complaints to physicians may not be held personally liable for
medically based Eighth Amendment claims. See, e.g., Spruill v. Gillis, 372 F.3d 218, 236-
37 (3d Cir. 2004); Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993). Because Pham was
under the care of medical experts, Warden Bradley, the nonmedical Defendant, was
justified in believing that he was in capable hands.

12

For all the foregoing reasons, Defendants are entitled to an entry of judgment in their
favor on the Eighth Amendment medical care claim. Because Pham failed to establish an
Eighth Amendment violation, Defendants are entitled to qualified immunity.
C. Lack of Personal Involvement of Defendants Bradley and Simonson
Defendants also seek summary judgment on the Bivens claim against Defendants
Bradley and Simonson based on a lack of personal involvement. The Court agrees that
Pham failed to establish that Defendants Bradley and Simonson were personally aware that
Pham had a serious medical need and that they knew of and disregarded an excessive risk
to his health. See Rode v. Dellarciprete, 845 F.3d 1195, 1207 (3d Cir. 1988) (noting that “a
defendant in a civil rights action must have personal involvement in the alleged wrongs”). In

response, Pham avers that Defendants Bradley and Simonson are “supervisory liable in
their chain of command.” (Doc. 29, p. 2; see also Doc. 36, p. 3). Liability, however, “cannot
be predicated solely on the operation of respondeat superior.” Rode, 845 F.3d at 1207.
Individual liability can be imposed only if the actor played an “affirmative part” in the alleged
misconduct. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (quoting Rode, 845 F.2d
at 1207). Moreover, with respect to Bradley and Simonson’s supervisory roles of Warden
and Health Service Assistant, there are two theories: “one under which supervisors can be
liable if they established and maintained a policy, practice or custom which directly caused
the constitutional harm, and another under which they can be liable if they participated in
violating plaintiffs rights, directed others to violate them, or, as the persons in charge, had

13

knowledge of and acquiesced in their subordinates’ violations.” Santiago v. Warminster
Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation and alteration marks omitted). As to
the second theory, a plaintiff must show that each defendant personally participated in the
alleged constitutional violation or approved of it. See C.N. v. Ridgewood Bad. of Educ., 430
F.3d 159, 173 (3d Cir. 2005); see also Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). With
respect to the first theory of supervisory liability, “the plaintiff must establish that: (1) existing
policy or practice creates an unreasonable risk of constitutional injury; (2) the supervisor
was aware that the unreasonable risk was created; (3) the supervisor was indifferent to that
risk; and (4) the injury resulted from the policy or practice.” Merring v. City of Carbondale,
558 F. Supp. 2d 540, 547 (M.D. Pa. 2008) (citing Sample v. Diecks, 885 F.2d 1099, 1118
(3d Cir. 1989)).
In the instant case, Pham failed to establish that Defendants Bradley and Simonson
had knowledge of and acquiesced in any alleged violations of his Eighth Amendment rights
by their subordinates. See A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Detention Center,
372 F.3d 572, 586 (3d Cir. 2004). In fact, there are no allegations in the complaint against
Defendants Bradley and Simonson. (See Doc. 1). Moreover, Pham failed to identify a
policy that allegedly caused the violation of his constitutional rights. See McTernan v. City
of York, 56 F.3d 636, 658 (3d Cir. 2009). Accordingly, insofar as Pham’s claims against
Defendants Bradley and Simonson rely on a respondeat superior theory of liability, they are
entitled to judgment as a matter of law.

14

IV. Federal Rule of Civil Procedure 4({m)
Rule 4(m) sets forth the following time frame a plaintiff has to serve a defendant with
the summons and copy of the complaint:
lf a defendant is not served within 90 days after the complaint is filed, the
court -- on motion or on its own after notice to the plaintiff -- must dismiss the
action without prejudice against that defendant or order that service be made
within a specified time. But if the plaintiff snows good cause for the failure,
the court must extend the time for service for an appropriate period.
FED. R. Civ. P. 4(m). Dr. Mowatt was named in the complaint that was filed on February
16, 2022 and, to date, has not been served in this case. The Court must engage in a two-
step process in determining whether to dismiss the non-served Defendant or grant Pham
additional time to effect service. “First, the district court should determine whether good
cause exists for an extension of time. If good cause is present, the district court must
extend time for service and the inquiry is ended. If, however, good cause does not exist,
the court may in its discretion decide whether to dismiss the case without prejudice or
extend time for service.” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir.
1995). Good cause requires good faith on the part of the party seeking an enlargement and

some reasonable basis for noncompliance with the time specified in the rules. MC/
Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995). In determining
whether good cause exists, a court's “primary focus is on the plaintiffs reasons for not
complying with the time limit in the first place.” /d. Although prejudice is a factor to be

15

considered, the absence of prejudice to the opposing party alone does not constitute good
cause to excuse late service. /d.
In the present matter, Pham failed to establish good cause. After the expiration of
the ninety-day time period set forth in Rule 4(m), the Court notified Pham that the action
against Dr. Mowatt was subject to dismissal and directed him to show cause why the action
against this Defendant should not be dismissed pursuant to Rule 4(m). (Doc. 44). Pham
failed to respond to the Rule 4 show cause order, and his pro se status is not good cause to

excuse his failure to timely serve this Defendant. Veal v. United States, 84 F. App’x 253,
256 (3d Cir. 2004). Based upon the lack of any reasonable explanation for his failure to
adhere to the requirements of Rule 4, the Court finds that Pham failed to establish good
cause.
lf a plaintiff cannot show good cause for his failure to serve the defendant within
ninety days, a district court may either dismiss the defendant, or exercise its discretion to
order that service be made within a specific time. Petrucelli, 46 F.3d at 1305; see also FED.
R. Civ. P. 4(m). It is Pham’s responsibility to properly identify all defendants, and provide
accurate mailing addresses for the defendants, in a timely fashion. (See Doc. 10 3)
(advising Pham that failure to properly name a defendant, or provide an accurate mailing
address for a defendant, may result in dismissal of the claims against that defendant
pursuant to Federal Rule of Civil Procedure 4(m)).

16

In light of Pham’s lack of good faith effort to serve Dr. Mowatt despite this Court's
warning of the possible consequences, including dismissal, the Court concludes that
dismissal is appropriate under the present circumstances. Accordingly, the non-served
Defendant will be dismissed from this action.
V. Conclusion
The Court will grant the motion (Doc. 23) by Defendants Sommer, Simonson,
Walters, and Bradley, and enter judgment in their favor. The Court will also dismiss the
action against Dr. Mowatt pursuant to Federal Rule of Civil Procedure 4(m). A separate
Order shall issue.

cee
4 Lume
Robert D. Mariani~
; United States District Judge
Dated: January 2023

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10412722. Public record. Not legal advice.