RICHARD G. ANDREWS, District Judge.
At Wilmington this
1. Plaintiff James N. McCardell, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. (D.I. 1). Plaintiff filed an amended complaint on October 23, 2017, and it is the operative pleading. (D.I. 8). Plaintiff has filed a motion for injunctive relief and a request for counsel. (D.I. 9, 15).
2. Plaintiff was allowed to proceed on claims against medical defendants Dr. Adrian Harewood and Connections Community Support Program, Inc. A service order was entered on October 26, 2017. In the order, the medical defendants were ordered to file a response to Plaintiff's motion for injunctive relief for medical care and a medical diet within fourteen days of service. (D.I. 11 at p.3 at ¶ 3). Connections has been served and has filed a motion to dismiss but, to date, has not complied with the order to respond to the motion for injunctive relief. It is ordered to do so.
3. Plaintiff seeks counsel. (D.I. 15). To date Dr. Harewood has not been served and this case is in its early stages. Therefore, the request for counsel will be denied without prejudice to renew upon service of Dr. Harewood.
4. Connections has been served, but Dr. Harewood has not. (See D.I. 18, 19). The United States Marshals Service unsuccessfully attempted to personally serve Dr. Harewood. (See D.I. 18). The USMS was advised that Dr. Harewood could not be found at the address provided, and he is not an employee of Connections. Hence it is not clear if Dr. Harewood is a former employee of Connections or if he is employed by the Delaware Department of Correction, although it appears from Plaintiff's allegations that during the relevant time period, Dr. Harewood was employed by Connections.
5. The court has a responsibility to assist pro se plaintiffs in the service of process. See Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010). This court has entered orders to assist pro se plaintiffs in obtaining addresses of defendants so that service may be effected. See also In Re Johnson, 2001 WL 1286254 (D.C. Cir. Sept. 28, 2001) (district court ordered individual to indicate where and when he was available for service of process or to provide district court with name and address of individual authorized to accept service of process on his behalf); Palmer v. Stewart, 2003 WL 21279440 (S.D.N.Y June 4, 2003) (court ordered counsel for New York City to file an affidavit containing name and address to assist pro se plaintiff in service of process); Garrett v. Miller, 2003 WL 1790954 (N.D. III. Apr. 1, 2003) (counsel for defendants ordered to provide address to court to assist pro se plaintiff in obtaining service of process). Additionally, the court's inherent power allows it to enter orders to manage its own affairs "so as to achieve the orderly and expeditious disposition of cases." Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629-31 (1962). Without the correct address, Plaintiff cannot effect service.
THEREFORE, IT IS ORDERED that:
1. On or before
2. Plaintiff's request for counsel is DENIED without prejudice to renew. (D.I. 15).
IT IS FURTHER ORDERED that:
1. On or before
2. Within twenty-one days from the filing of the sealed information, Plaintiff shall request the Clerk of Court to prepare a summons for Dr. Adrian Harewood, and submit to the Court a complete U.S. Marshal-285 form as well a copy of the amended complaint (D.I. 8) for personal service upon Dr. Adrian Harewood pursuant to Fed. R. Civ. P. 4(b), (c)(1), (c)(3), and (e). Plaintiff is not required fill in the "Serve At" section. The "Serve At" section will be completed by the Court. Plaintiff is notified that the USMS will not personally serve the amended complaint until the "U.S. Marshal 285" form and a copy of the amended complaint have been received by the Clerk of Court. Failure to timely provide the "U.S. Marshal 285" form and copy of the amended complaint for Defendant may result in his dismissal pursuant to Federal Rule of Civil Procedure 4(m).
3. Upon receipt of the request for issuance of summons, the USM-285 form, and a copy of the amended complaint required by paragraph 2 above, the Clerk of Court shall issue the summons and transmit the summons, USM-285 form, copy of the amended complaint (D.I. 8), the October 26, 2017 memorandum opinion and order (D.I. 10, 11), the September 15, 2017 filing fee order (D.I. 6), and this memorandum order to the USMS for immediate service pursuant to Fed. R. Civ. P. 4(c). The USMS shall personally serve process and a copy of this order upon Defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
4. Within ten days after personal service is effected, the USMS shall file the return of service for defendant, along with the costs incurred in effecting service on said defendant. Said costs shall be enumerated on the USM-285 form. The executed return of service or return for the defendant SHALL BE FILED UNDER SEAL.
IT IS FINALLY ORDERED that:
1. In the alternative, since it may be the case that Dr. Adrian Harewood is a current or former employee of the Delaware Department of Correction, the Clerk of Court shall also notify the Delaware Department of Correction ("DDOC") and the Delaware Department of Justice ("DDOJ") of this service order. As an attachment to this order, the Clerk of Court shall serve an electronic copy of the amended complaint copy of the amended complaint (D.I. 8), and the October 26, 2017 memorandum opinion and order (D.I. 10, 11),upon the DOC and the DDOJ. If Defendant Dr. Adrian Harewood is employed by the DOC, the Court requests that Dr. Adrian Harewood waive service of summons.
2. The DDOC and/or the DDOJ shall have ninety (90) days from entry of this service order to file a waiver of service executed and/or a waiver of service unexecuted. Upon the electronic filing of service executed, defendant shall have sixty (60) days to answer or otherwise respond to the pro se complaint.
3. In those cases where a waiver of service unexecuted is filed, the DDOC and/or DDOJ shall have ten (10) days from the filing of the waiver of service unexecuted, to supply the Clerk of Court with the last known forwarding addresses for former employees, said addresses to be placed under seal and used only for the purpose of attempting to effect service in the traditional manner.
This lawsuit challenged the Delaware Department of Corrections ("DOC") and Conncetions Community Support Programs, Inc. ("CCSP") regular practice of withholding necessary medical care for plaintiff with serious and painful medical conditions. On December 15, 20015 plaitiff was shot once in the abdomen, which resulted in my having use colostomy bag and supra pubir catheter. I have constantly had to fight with the defendants to get anytype medical treatment, and still not receiving required treatment. Have attempted address this matter via grievances and family contacting various defendants. I have not seen GI doctor or a Urologist over yearl and half, it been determine my injuries require treatment of specialist. I suffer constant urinary tract infections, required take series of antibioties.
The aforemention medications take three weeks out of the month, and causing harmful effects to my kidneys. As result not seeing proper specialist, becoming immune to some of the antibotics. The reason not being provided needed medical care, is the cowst their is specialist at Temple University7Hospital that could provide needed treatment, again defendants don't want cover cost for same. It's been determine need surgery to correct my problems, constantly informed no doctor will see me. My body unable to digest any of the following vegetables: corn, green beans, wax beans, pinto beans, cucumbers, cabbage, and carrots. Also, unable digest following fruitskinapples, oranges and pears. Just about all the meals served concatain some of the above. I'm constantly hungery and result being unable to consume food being served. Medical Defendants state cannot order type food needed, same is said by DOC defendants.
On October 12, 2017 saw Nurse Practioner Corla Miller for chronic care appointment. Upon examining adjusted my insulin and prescibed several new medications, this included antibiotics for ongoing urinary tract infection. At about 1:00 p.m. on same day calle to infirmary to see defendant Dr. Harewood, informed had seen Nurse Practions Miller earlier in morning. He became upset told me shut-up he was smarter than myself, I was really behooved by his actions. He than went on the computer and cancelled all my medications and conveyed didn't want to see me again. I later learn't tere was some type problem between Nurse Practioner Miller and Dr. Harewood.
1. This Court has orginal jurisdiction under 28 U.S.C. 1331 and 28 U.S.C. 1343(a)(4). Declaratory relief is authorized by 28 U.S.C. 2201-2202.
2. Venue is proper in this judicial district under 28 U.S.C. 1391 (b) because all Defendants reside it this District.
3. Plaintff is currently incarcerated at James T. Vaughn Correctional Center, Smyrna, Delaware. I suffer major medical problems as result of having colostomy, and supra pubic catheter. This condition cause him chronic and substantial pain that interferes with his ability to consume food and sleep. Defendants resue to provide plaintiff with necessary treatment for his conditions.
4. Defendant Perry Phelps is Commissioner of Delaware Department of Corrections, as such, he is legal custdial of all inmates sentence by the court of Delaware, and is responsible for safe, secure and human housing of plaintiff at all time relevent hereto, has acted under color of state law. Defendant Phelps is sued in his personal and official capacity for these constitutional violations he has committed under color of law.
5. Defendant Delaware Department of Corrections operate the correctional facilitie that subject of claim against for violations of the American with Disabilities Act.
6. Defendant/Connections Community Support Programs, Inc., is medical provider for inmates under the custody/control of Delaware Department of Corrections. The afoemention resulting contract betwee State of Delaware and Department of Corrections
7. Defendant/Marc Richman is Medicla Director for Department of Corrections, responsible for medical decisions within Department of Corrections and their contracted medical provider. He is sued in his personal capacity.
8. Defendant Adrian Harewood, MD., is the Medical Director for JTVCC. In that role he has a duty to ensure that JTVCC provides constitutionally-adequate medical care to inmates in its custody. He has the authority to approper or deny medical treatment for JTVCC inmates. At all time relevant to this action Dr. Harewood was acting under color or state law. Dr. Harewood is sued in his official and individual capacity.
9. Defendant Phillip Parker, Deputy Warden, was serving as Acting Warden — J.T.V.C.C., as such is was legal custodian of inmate sentence by the courts ofDelaware, as is responsible for safe, secure. nad human housing those inmates and is sued in his personal and individual capacity.
10. Plaitiff utilized grievance/appeal process on all issues raised in complaint.
11. The deliberate indifference to needed medical treatment, denial treatment of specialist and utilization of cost of such treatment violate plaintiff's rights and be free cruel and unusal punishments under the eighth and fourteenth Amendments of Delaware and United States Cculstitution.
12. The plaintiff has been and will continue to be irreparably injured by the conduct of the defendants unless this Court grant the declaratory and injunctive relief which plaintiff seeks.
13. Court usually agree that an inmate can show a serious medical need if the "failure to treat plaintiff's conditions could result in futher significant injury the "unnecessary and wanton infliction of pain."
14. The Defendants have acted, and continue to act, with deliberate indifference to the serious medical need of the Plaintiff.
15. By their actions and omissions, taken under color of state law, Defendants have violated, and continue to violate the rights of the Plaintiff to be free from cruel and unusual punishment, guaranteed to him by the Eighth Amendment to the United States Constitution. Defendants' constitutional violations are actionable under 42 U.S.C. 1983.
16. Preliminary and permanent injunction restraining Defendants from denying withour reasonable medical justification, necessary care for the Plaintiff and his serious medical needs.
17. Preliminarily and permanently enjoin the Defendant's, their agents, employees and all persons acting in concert with them from subjecting the Plaintiff to the illegal policies, practices, omissions and conditions described herein.
18. Order Defendants' agents employees and all persons acting in concert with them to:
a. Halt Defendant Harewood from interferring or proving Plaintiff medical services.
b. Permit I M Robert Saunders to provide Plaintiff legal assistance in this matter until either court appoint counsel or pro bono counsel secured.
c. Provide immediately all medical services Plaintiff in need.
d. Immediately provide Plaintiff with diet needed to address his medical needs.
19. Award Plaintiff damages, determined by either the Court or jury, in compensatory damages, against the Defendants for violations of Plaintiff's constitutional rights.
20. Award Plaintiff punitive damages for Defendants violations of Plaintiff's constitutional rights.
21. Retain jurisdiction of this case until the Defendants have fully complied with the orders of this Court and there is reasonable assurance that the Defendants will continue to comply in the future absents continuing jurisdicition.
22. Award such other and further relief as the Court deems just and proper.
James N. McCardell, James T. Vaughn Correctional Center, Smyrna, Delaware. Pro Se Plaintiff.
Plaintiff James N. McCardell, an inmate at the James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.
On December 15, 2015, Plaintiff was shot and sustained injuries that require him to use a colostomy bag and a suprapubic catheter. Plaintiff alleges Defendants Delaware Department of Correction
Plaintiff has not seen a "GI" physician or urologist in over a year and suffers from constant urinary tract infections which result in the frequent administration of antibiotics. Plaintiff alleges the use of antibiotics is harming his kidneys, and he is developing an immunity to the antibiotics. Plaintiff alleges it has been determined that surgery is required to correct his problems.
Plaintiff is unable to digest numerous fruits and vegetables. As a result he is unable to consume the food served at the VCC and is constantly hungry. Plaintiff alleges the medical and DOC Defendants advised him they cannot order the type of food he requires.
Plaintiff was seen by a nurse practitioner on October 12, 2017 who adjusted his insulin and prescribed several medications. Later that day, when Plaintiff was called to the infirmary to see Defendant Dr. Adrian Harewood, he told Dr. Harewood he had seen the nurse practitioner. Plaintiff alleges Dr. Harewood cancelled his medications and told Plaintiff that he did not want to see him again. Plaintiff later learned that there was a problem between Dr. Harewood and the nurse practitioner.
Named defendants include Dr. Harewood, DOC Commissioner Perry Phelps, the DOC, Connections, Bureau Chief of the Bureau of Correctional Healthcare Services Marc Richman, and VCC Deputy Warden Phillip Parker. Plaintiff alleges that Defendants' actions constitute deliberate indifference to his serious medical needs. He seeks injunctive relief, as well as compensatory and punitive damages. He also asks the Court to allow inmate Robert Saunders to provide him legal assistance until counsel is secured. In addition to the relief sought in the amended complaint, Plaintiff filed a motion for injunctive relief for Defendants to provide him needed medical services and a medical diet and to allow inmate Saunders to assist him in this case. (D.I. 9).
A federal court may properly dismiss an action sua sponte under the screening provisions of 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b) if "the action is frivolous or malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief." Ball v. Famiglio, 726 F.3d 448, 452 (3d Cir. 2013). See also 28 U.S.C. § 1915(02) (in forma pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner seeks redress from a governmental defendant). The Court must accept all factual allegations in a complaint as true and take them in the light most favorable to a pro se plaintiff. Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008); Erickson v. Pardus, 551 U.S. 89, 93 (2007). Because Plaintiff proceeds pro se, his pleading is liberally construed and his complaint, "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. at 94 (citations omitted).
An action is frivolous if it "lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Under 28 U.S.C. § 1915(e)(2)(B)(i) and § 1915A(b)(1), a court may dismiss a complaint as frivolous if it is "based on an indisputably meritless legal theory" or a "clearly baseless" or "fantastic or delusional" factual scenario. Neitzke, 490 U.S. at 327-28; Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
The legal standard for dismissing a complaint for failure to state a claim pursuant to § 1915(e)(2)(B)(ii) and § 1915A(b)(1) is identical to the legal standard used when ruling on Rule 12(b)(6) motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999). However, before dismissing a complaint or claims for failure to state a claim upon which relief may be granted pursuant to the screening provisions of 28 U.S.C. §§1915 and 1915A, the Court must grant Plaintiff leave to amend his complaint unless amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).
A well-pleaded complaint must contain more than mere labels and conclusions. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). A plaintiff must plead facts sufficient to show that a claim has substantive plausibility. See Johnson v. City of Shelby, ___ U.S. ___, 135 S.Ct. 346, 347 (2014). A complaint may not dismissed, however, for imperfect statements of the legal theory supporting the claim asserted. See id. at 346.
A court reviewing the sufficiency of a complaint must take three steps: (1) take note of the elements the plaintiff must plead to state a claim; (2) identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth; and (3) when there are well-pleaded factual allegations, assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Connelly v. Lane Const. Corp., 809 F.3d 780,787 (3d Cir. 2016). Elements are sufficiently alleged when the facts in the complaint "show" that the plaintiff is entitled to relief. lqbal, 556 U.S. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Deciding whether a claim is plausible will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
The DOC, an agency of the State of Delaware, is a named defendant. Claims against the State of Delaware are barred by its Eleventh Amendment immunity. See MCI Telecom. Corp. v. Bell Atl. of Pa., 271 F.3d 491, 503 (3d Cir. 2001). The Eleventh Amendment of the United States Constitution protects an unconsenting state or state agency from a suit brought in federal court by one of its own citizens, regardless of the relief sought. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984); Edelman v. Jordan, 415 U.S. 651 (1974).
The State has not waived its immunity from suit in federal court and, although Congress can abrogate a state's sovereign immunity, it did not do so through the enactment of 42 U.S.C. § 1983. Brooks-McCollum v. Delaware, 213 F. App'x 92, 94 (3d Cir. 2007). Plaintiff's claim against the DOC has no arguable basis in law or in fact and, therefore, will be dismissed as the DOC is immune from suit pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(iii) and 1915A(b)(2).
It appears that Plaintiff has named Phelps, Richman, and Parker as defendants based upon their supervisory positions. "A[n individual government] defendant in a civil rights action must have personal involvement in the alleged wrongdoing; liability cannot be predicated solely on the operation of respondeat superior. Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence." Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988).
It is well established that claims based solely on the theory of respondeat superior or supervisor liability are facially deficient. See lqbal, 556 U.S. at 676-77; see also So/an v. Ranck, 326 F. App'x 97, 100-01 (3d Cir. 2009) (holding "[a] defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior"). The amended complaint does not allege any direct or personal involvement by Phelps, Richman, or Parker other than to identify them as being responsible for matters due to their supervisory positions.
In addition, under the liberal notice pleading standard of Rule 8(a), Plaintiff's claims fails to allege facts that, if proven, would show personal involvement by any of the supervisory Defendants. A civil rights complaint is adequately pled where it states the conduct, time, place, and persons responsible. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). The claims against the foregoing Defendants lack an arguable basis in law or in fact and will be dismissed as frivolous pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i) and 1915A(b)(1).
Plaintiff asks the Court to allow inmate Saunders to assist him in this matter. Plaintiff is advised that Saunders, as a non-attorney, may not act as an attorney for other individuals. 28 U.S.C. § 1654; see also In the Matter of Chojecki, 2000 WL 679000, at *2 (E.D. Pa. May 22, 2000) (citing United States v. Stepard, 876 F.Supp. 214, 215 (D. Ariz. 1994) ("Although a non-attorney may appear in propria persona on his own behalf, that privilege is personal to him and he has no authority to appear as the attorney for anyone other than himself.").
In addition, Plaintiffs request would require the Court to inject itself in the administration of the VCC. Prison administrators are accorded wide-ranging deference in the adoption and execution of policies and practices that are needed to preserve internal order and to maintain institutional security. Bell v. Wolfish, 441 U.S. 520, 527 (1979). The federal courts are not overseers of the day-to-day management of prisons, and the Court will not interfere in the VCC determination whether or not to allow Saunders to assist Plaintiff. Accordingly, the Court will deny that portion of Plaintiffs motion for injunctive relief that seeks Saunders' assistance. (D.I. 9).
Plaintiffs motion for injunctive relief also seeks medical care and a medical diet. (D.I. 9). The Court will order the remaining Defendants and the VCC warden to respond to the motion.
For the above reasons, the Court will dismiss all claims against Perry Phelps, the Delaware Department of Correction, Marc Richman, and Phillip Parker as frivolous and based upon immunity from suit pursuant to U.S.C. § 1915(e)(2)(B)(i) and (iii) and § 1915A(b)(1) and (2). Plaintiff will be allowed to proceed with the medical needs claims raised against Dr. Adrian Harewood and Connections Community Support Programs, Inc. Plaintiffs request for inmate assistance will be denied and the remaining Defendants and the VCC warden will be ordered to respond to Plaintiff's motion for injunctive relief for medical care and a medical diet. (See D.I. 9).
An appropriate order will be entered.
At Wilmington this 26 day of October, 2017, for the reasons set forth in the memorandum opinion issued this date;
IT IS ORDERED that:
1. All claims against Perry Phelps, the Delaware Department of Correction, Marc Richman, and Phillip Parker are
2. Plaintiff has alleged what appear to be cognizable medical needs claims against Defendants Dr. Adrian Harewood and Connections Community Support Programs, Inc., and may proceed on those claims.
IT IS FURTHER ORDERED that:
1. Plaintiffs motion for injunctive relief is
2. Warden Dana Metzger shall file a response to Plaintiff's motion for injunctive relief (D.I. 9) seeking medical care and a medical diet on or before
IT IS FURTHER ORDERED that:
The Clerk of Court shall notify the Delaware Department of Correction ("DDOC") and the Delaware Department of Justice ("DDOJ") of this service order via electronic notification.
IT IS FINALLY ORDERED that:
1. Pursuant to Fed. R. Civ. P. 4(b), (c)(1), (c)(3), and (e) Plaintiff shall request the Clerk of Court to prepare summonses for remaining Defendants Adrian Harewood and Connections Community Support Programs, Inc. Connections Community Support Programs, Inc. may be served through Steven Davis, Esquire at Connections CSP, Inc., 3821 Lancaster Pike, Wilmington, Delaware 19805. Plaintiff shall also complete and return to the Clerk of Court an original, signed "U.S. Marshal-285" forms and copies of the amended complaint (D.I. 8) and the motion for injunctive relief (D.I. 9) for personal service upon remaining Defendants. Failure to request issuance of summonses and to provide a complete "U.S. Marshal 285" forms and copies of the amended complaint and motion for injunctive relief within 90 days from the date of this order may result in the dismissal of the Amended Complaint or Defendant(s) pursuant to Federal Rule of Civil Procedure 4(m).
2. Upon receipt of the request for issuance of summonses, the USM-285 forms, copies of the amended complaint and motion for injunctive relief required by paragraph 1 above, the Clerk of Court shall issue the summonses and transmit the summonses, USM-285 forms copies of the amended complaint (D.I. 8), the motion for injunctive relief (D.I. 9), the filing fee order (D.I. 6), and a copy of this Order to the United States Marshals Service ("USMS") for immediate service pursuant to Fed. R. Civ. P. 4(c). The USMS shall personally serve process and a copy of this order upon Defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
3. Within fourteen days of service, the remaining Defendants shall file a response to Plaintiff's motion for injunctive relief for medical care and a medical diet. (D.I. 9).
4. No communication, including pleadings, briefs, statement of position, etc., will be considered by the court in this civil action unless the documents reflect proof of service upon the parties or their counsel.
5. Note: When an amended complaint is filed prior to service, the court will VACATE all previous Service Orders entered, and service will not take place. An amended complaint filed prior to service shall be subject to re-screening pursuant to 28 U.S.C. §1915(e)(2) and § 1915A(a).
6. Note: Discovery motions and motions for appointment of counsel filed prior to service will be dismissed without prejudice, with leave to refile following service.
