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March 2, 2004.

KENNETH BRILEY, et al., Defendants

The opinion of the court was delivered by: PAUL PLUNKETT, Senior District Judge


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. ¶ 10.) Page 2

  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. ¶¶ 53-55.)

  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. ¶¶ 23, 34.)

  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. Page 3


  Untimely Service

  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 dismissed.

  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 served ...

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