United States District Court, E.D. Virginia, Richmond Division
JOHN A. GIBNEY, Jr., District Judge.
Willie Unique Davis, a former Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action. Davis contends that Defendants Officer Sample and Nurse Elliott denied him adequate medical care during his incarceration in the Riverside Regional Jail ("RRJ"). The matter is before the Court on Davis's failure to serve Defendant Elliott and Defendant Sample's Motion to Dismiss. For the reasons stated below, the Court will GRANT Defendant Sample's Motion to Dismiss (ECF No. 21) with respect to Claim Two and will DENY the Motion to Dismiss with respect to Claim One. The Court will DISMISS WITHOUT PREJUDICE the action against Defendant Elliott.
I. FAILURE TO SERVE DEFENDANT ELLIOTT
Pursuant to Federal Rule of Civil Procedure 4(m),  Davis had one hundred and twenty (120) days from the filing of the complaint to serve Defendant Elliott. Here, that period commenced on April 4, 2014. On April 11, 2014, the Marshal attempted to serve Defendant Elliott at the address provided by Davis. On April 15, 2014, the Marshal returned the summons unexecuted, noting that Defendant Elliott was no longer employed by CCS or RRJ. (ECF No. 20, at 3.) By Memorandum Order entered September 22, 2014, the Court noted that more than 120 days had passed and Davis had not served Defendant Elliott. The Court ordered Davis to show good cause, within eleven (11) days of the date of entry thereof, why the Court should not dismiss Davis's claims against Defendant Elliott and terminate her as a defendant. Davis has not responded.
Rule 4(m) requires that, absent a showing of good cause, the Court must dismiss without prejudice any complaint in which the plaintiff fails to serve the defendant within the allotted 120-day period. Fed.R.Civ.P. 4(m). Courts within the Fourth Circuit found good cause to extend the 120-day time period when the plaintiff has made "reasonable, diligent efforts to effect service on the defendant.'" Venable v. Dep't of Corr., No. 3:05cv821, 2007 WL 5145334, at *1 (E.D. Va. Feb. 7, 2007) (quoting Hammad v. Tate Access Floors, Inc., 31 F.Supp.2d 524, 528 (D. Md. 1999)). Davis makes no showing of good cause for his failure to serve Defendant Elliott. Accordingly, Davis's claims against Defendant Elliott will be DISMISSED WITHOUT PREJUDICE. See Fed.R.Civ.P. 4(m).
II. STANDARD FOR MOTION TO DISMISS
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. lqbal, 556 U.S. 662, 679 (2009).
The Federal Rules of Civil Procedure "require only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must allege facts sufficient "to raise a right to relief above the speculative level, " id. (citation omitted), stating a claim that is "plausible on its face, " id. at 570, rather than merely "conceivable." Id. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. Carroll, 107 F.3d 241, 243 (4th Cir. 1997) (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. SUMMARY OF ALLEGATIONS
In his Complaint, Davis alleges that, during his incarceration in the RRJ, Defendant Sample denied him adequate medical care in violation of the Eighth Amendment. Specifically, Davis alleges:
On the date of 8/21/12 @ 10:30 AM, I notified Officer Sample that I needed to see the nurse because of pain [and] diarrhea. Nothing was done. At 1:00 PM during med pass, I told the nurse I needed medical attention. I have been in pain for 4 days. The pain became extreme. I informed Officer Sample again that I was having a pancreatitis attack. The pain became worse. I informed him 2-3 more times until I was no longer able to stand. I was on the floor in pain, other inmates informed him that I was on the floor, he said I informed medical what else do you want me to do. He in turned laughed out loud and walked away... I was still in pain on the floor for 30 minutes until finally Lt. Walker came in and insisted that he call a nurse. The nurse came and said there was nothing that could be done. Nurse Elliott in turn left me on the floor until Lt. Walker made her call for assistance. Then and only then was I helped into a wheelchair and escorted to medical. Lt. Walker demanded I be seen by a supervisor. I was not seen by the doctor. Nurse Elliott informed me she spoke to Dr. Ruby and he said to give me pain med for 3 days only. And I would be placed on the list for the doctor.
I have not been seen up until 8/30/12. I still haven't been seen or do not have my medication. On 8/30/12 @ 9:30 AM, I informed Officer Sample that I have severe complications with my allergies and I have not had my medication for a month. This day broke out in hives and redness. I showed it to him and the nurse. My meds were on the cart. I had been asking her for 3 days please give me some relief or inform the head nurse Elliott about my condition. Officer Sample told me in a loud, boisterous manner that he was not going to call for me. He stated that he was not going to lay down, walk, crawl, or do nothing for me. I asked him please when he gets time, please call for me. At this time he started a verbal argument and he threatened me to the point where I had to get up in pain out of my wheelchair because he walked up on me to assault me. He called Lt. Banks. I explained to the Lt. the situation. My medical concerns and also that Officer Sample right in front of me, informed inmate Robert Birch that he would call medical for him. After that I asked Lt. Banks is it fair for him to call for 2 others but deny me. After that I was informed that I was on administrative lock for threatening an officer when, in turn, I was the one threatened. I have been here over a year and never had a problem. I was denied and approached. It is my right to inform the officer of any emergency regarding medical issues. I have seen Officer Sample call right away if someone informs him. But for some reason, he refuses to assist me when I ask. My rights were violated when I laid on the floor for 30 minutes begging him to call for assistance, even other people were asking him to call.
As an officer in charge of 30-40 inmates, there is no need to show favoritism or just ignore my request. This is the third time he has had an issue concerning my medical condition. Even my family members where on the phone when I was in pain and heard him threaten me. They had to call 911 from outside the facility and call up Riverside numerous times to no avail or assistance were provided. I have in my charts that my wife and mother can get any information regarding my medical condition but they were abused verbally and hung up on. ...