The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff has defendants under 42 U.S.C. § ("section") 1983 for
their alleged violations of his Eighth Amendment rights. Defendants
Kenneth Briley, Mark Hosey, Ronald Smock, Carol Delpriore, Michelle
Johnson and Jonathon Russell have filed a motion to dismiss the amended
complaint pursuant to Federal Rules of Civil Procedure ("Rule") 4(m) and
12(b)(6), For the reasons set forth below, the motion is granted in part
and denied in part.
Plaintiff, who has AIDS, was incarcerated at Stateville Correctional
Center from July 31, 2002 until October 7, 2002. (Am. Compl. ¶¶
15, 18.) Defendant Briley is the warden of Stateville. (Id.
¶ 4.) Defendant Hosey is the superintendent of Stateville's minimum
security unit, known as the farm. (Id. ¶ 7.) Defendant
Smock is the work supervisor at the farm. (Id. ¶ 8.)
Defendant Johnson is a correctional officer who worked at the farm during
the time that plaintiff was incarcerated there. (Id. ¶ 9.)
Defendant Russell is a Stateville medical technician. (Id.
When plaintiff arrived at Stateville, he was housed at the farm, which
is home to 213 inmates. (Id. ¶¶ 16, 17.) The conditions
plaintiff encountered during his twenty-four day stay at the farm were
deplorable: there were only two functional toilet stools, one functional
urinal and two sinks, one of which provided only cold water, for 100 men.
(Id. ¶¶ 51-52.) In addition, the showers were filthy and the
cells were infested with rats, roaches and other insects. (Id.
Plaintiff was not given his AIDS medications at anytime while he was
living on the farm. (Id. ¶¶ 22, 25, 31.) After only a few
days there, plaintiff developed a rash on his face. (Id. ¶
23.) For the next week, plaintiff repeatedly requested medical treatment,
but his requests were denied. (Id. ¶¶ 24, 26.) By the time
he was allowed to see a doctor, the left side of plaintiff's face was
swollen and covered in sores and his left eye was swollen shut.
(Id. ¶¶ 24, 27.) Ultimately, plaintiff's rash was diagnosed
as Shingles and he was admitted to the hospital for eleven days, during
which time he received his AIDS medications. (Id. ¶¶ 23, 28,
32.) As a result of the Shingles, the left side of plaintiff's face is
numb and the vision in his left eye is impaired. (Id. ¶¶
After plaintiff's hospital stay, he was returned to the farm.
(Id. ¶ 35.) Shortly thereafter, however, he was placed in
segregation pending investigation of an incident between plaintiff and
another inmate. (Id. ¶ 36.) Plaintiff spent thirty days in
segregation, without ever receiving his AIDS medications. (Id.
¶ 39.) In fact, the only time plaintiff ever received his AIDS
medications during his sixty-eight day incarceration at Stateville is
when he was hospitalized. (Id. ¶ 40.)
Plaintiff says that defendants were all aware of his AIDS status, but
did nothing to improve the living conditions at the farm, ensure that he
received his medications or ensure that he received timely medical care
for his rash, (id. ¶¶ 24, 26, 38, 42-45, 56-63), actions
that he claims violated his Eighth Amendment rights.
Rule 4(m) requires plaintiff's to serve defendants within 120 days of
the filing of the complaint. If service is not effected in that time, the
Court "shall dismiss the action without prejudice . . . or direct that
service be effected within a specified time," Defendants contend that
they were named in plaintiff's original pro se
complaint, filed on December 16, 2002, but were not served within 120
days thereafter. Thus, they say, the claims against them should be
Contrary to defendants' belief, not all of the movants were named as
defendants in plaintiff's original pro se filing. In
fact, the only movant who was properly named is defendant Briley. The
remaining movants were added as defendants in amended complaints filed
May 23, 2003 and July 29, 2003, respectively, and all but defendant
Johnson were served within 120 days after being added to the suit, In
reality, then, the only movants who were not served within the 120-day
period are Briley and Johnson.
Even if none of the movants had been timely served, however, the Court
would not dismiss the case under Rule 4. Dismissal under that Rule is
discretionary, even if no cause is shown for the delay in service.
Panaras v. Liquid Carbonic Indus, Corp., 94 F.3d 338, 340-41
(7th Cir. 1996). Moreover, any dismissal would be without prejudice. FED.
R. Civ. P. 4(m). Thus, if we dismissed the suit, plaintiff would simply
refile and re-serve the movants, a wasteful and pointless exercise.
Because the delay in service was not great, all defendants have now been