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Gilchrist v. Doe

United States District Court, E.D. Virginia, Richmond Division

July 11, 2016

WILBERT GILCHRIST, Plaintiff,
v.
JOHN DOE, et al., Defendants.

          MEMORANDUM OPINION

          James R. Spencer Senior U.S. District Judge.

         Wilbert Gilchrist, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] By Memorandum Opinion and Order entered on January 27, 2016, the Court dismissed the action against all Defendants except for Claim One against Defendants Edson and Doe, and Claim Two against Defendant M. Oslin. The matter is before the Court on Wilchrist's failure to serve Defendant Edson, and Defendant Oslin's Motion for Summary Judgment. (ECF No. 40). Wilchrist has responded. (ECF Nos. 45, 56.) For the reasons stated below, the claims against Defendant Edson will be DISMISSED WITHOUT PREJUDICE for Wilchrist's failure to effect timely service upon him, and Defendant Oslin's Motion for Summary Judgment will be GRANTED.

         I.FAILURE TO SERVE DEFENDANT EDSON

         Pursuant to Federal Rule of Civil Procedure 4(m), [2] Wilchrist had ninety days from the filing of the complaint to serve Defendants.[3] Here, that period commenced on February 16, 2016. By Memorandum Order entered on that date, the Court attempted to serve Defendants pursuant to an informal service agreement with the Attorney General's Office for the Commonwealth of Virginia. On March 22, 2016, the Attorney General responded that it could not accept process for Defendant Edson or Defendant Doe. (ECF No. 43.) By Memorandum Order entered on June 7, 2016, the Court noted that more than ninety days had passed and nothing before the Court indicated that Gilchrist had completed service of process on Defendant Edson.[4] The Court ordered Gilchrist to show cause, within eleven (11) days of the date of entry thereof, why the Court should not dismiss his claim against Defendant Edson. Gilchrist has responded, but fails to show good cause for his failure to serve Defendant Edson.

         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 90-day period. Fed.R.Civ.P. 4(m). Courts within the Fourth Circuit found good cause to extend the ninety-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)). Gilchrist makes no showing of good cause for his failure to serve Defendant Edson. Instead, he reargues his claims against Defendant Edson, and indicates that she no longer works at Keen Mountain so he does not have her address. (ECF No. 57, at 4.) Gilchrist fails to provide any information about his attempts to find an address for Defendant Edson after the Attorney General's notice that they could not accept service on behalf of Defendant Edson in March. Gilchrist fails to show that he has made reasonable and diligent efforts to effect service on Defendant Edson. Accordingly, Gilchrist's claims against Defendant Edson will be DISMISSED WITHOUT PREJUDICE. See Fed. R. Civ. P. 4(m).

         II. SUMMARY OF ALLEGATIONS

         In his Particularized Complaint, [5] Gilchrist alleges the following with regard to Defendant Oslin:

Plaintiff has not received my pain medications for his stomach illness. In addition to Plaintiffs stomach illness he has lost weight, over 50 pounds. His medical diet still has not been corrected as of this very date 11-12-15. I am forced to continue eating what foods I can eat off the regular food trays. Food Director M. Oslin deliberately keep sending to me, knowing I cannot and will not eat those foods that cause me more internal harm....

(Part. Compl. 3, ECF No. 30 (paragraph numbers omitted).) The Court construed Gilchrist to raise the following claim for relief against Defendant Oslin:

Claim Two: Defendant Oslin was deliberately indifferent to Gilchrist's stomach condition by failing to provide him with an appropriate diet for Gilchrist's medical conditions.

         Gilchrist seeks an unspecified amount of damages.

         II. STANDARD FOR SUMMARY JUDGMENT

         Summary judgment must be rendered "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the responsibility of informing the Court of the basis for the motion and identifying the parts of the record which demonstrate the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the pleadings, depositions, answers to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When the motion is properly supported, the nonmoving party must go beyond the pleadings and, by citing affidavits or "'depositions, answers to interrogatories, and admissions on file, ' designate 'specific facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed.R.Civ.P. 56(c), (e) (1986)). In reviewing a summary judgment motion, the Court "must draw all justifiable inferences in favor of the nonmoving party." United States v. Carolina Transformer Co., 978 F.2d 832, 835 (4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). However, a mere '"scintilla of evidence'" will not preclude summary judgment. Anderson, 477 U.S. at 251 (quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). '"[T]here is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury could properly proceed to find a verdict for the party ... upon whom the onus of proof is imposed.'" Id. (quoting Munson, 81 U.S. at 448). Additionally, "'Rule 56 does not impose upon the district court a duty to sift through the record in search of evidence to support a party's opposition to summary judgment.'" Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994) (quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ. P. 56(c)(3) ("The court need consider only the cited materials . ...").

         In support of his Motion for Summary Judgment, Defendant R.M. Oslin, the Food Service Director at Keen Mountain Correctional Center, submits his own affidavit (Mem. Supp. Mot. Summ. J. Attach. 1 ("Oslin Aff, " ECF No. 41-1), with an attached Offender Diet Order {id. Encl. A, ...


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