United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
Harper, a Virginia inmate proceeding pro se and
in forma pauperis, has filed this 42 U.S.C. §
1983 action. By Memorandum Order entered on November
18, 2015, the Court directed Harper to submit a
Particularized Complaint. (ECF No. 10, at 2.) Harper has
submitted his Particularized Complaint. (ECF No. 14.) The
matter is before the Court on the Motion to Dismiss (ECF No.
31) filed by Defendants Nurse Jones, Nurse Hamlin, and Dr.
Gore,  as well as the Court's Memorandum
Order of August 22, 2016, directing Harper to show cause as
to why Defendants Quintana and Dugger should not be dismissed
without prejudice for failure to serve them in a timely
manner (ECF No. 36). Despite receiving
Roseboro notice, Harper has not responded to the
Motion to Dismiss. For the reasons stated below, the Court
will dismiss without prejudice all claims against Quintana
and Williams pursuant to Rule 4 (m) of the Federal Rules of
Civil Procedure. The Court will also grant in part and deny
in part the Motion to Dismiss.
FAILURE TO SERVE QUINTANA AND DUGGER
Federal Rule of Civil Procedure 4(m),  Harper had ninety
(90) days from March 23, 2016 to serve the Defendants. In his
Notice of Appearance, counsel for Matheny, Crowell, and Lowe
stated that he was unable to enter an appearance or waive
service of process for Quintana "because there are no
current or former Virginia Department of Corrections
employees at Greensville Correctional Center with that last
name." (ECF No. 21, at 1 n.l.) Counsel was also unable
to enter an appearance or waive service of process for
Dugger, "who [was] no longer employed by the Virginia
Department of Corrections." (Id.)
Memorandum Order entered on August 22, 2016, the Court
directed Harper "to show good cause why the action
should not be dismissed without prejudice" as to
Quintana and Dugger. (ECF No. 36, at 1.) Harper has
responded, stating in pertinent part:
1. On or about April, 2016 the defendants Dr. Gore, et al.
were served with a copy of said Complaint in the above styled
2. Plaintiff now respectfully submits to this Court that
because the defendants in this matter were served by Quintana
and Dugger, and within the required time frame, that the
plaintiff has complied and met the required rules under
Federal Rules of Civil Procedure in this matter and
therefore, plaintiff's action pending in this Court
should not be dismissed.
(ECF No. 37, at 1 (spelling and grammar corrected).)
(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 United
States Court of Appeals for the Fourth Circuit found good
cause to extend the 90-day time period when the plaintiff has
made "'reasonable, diligent efforts to effect
service on the defendant.'" Venable v. Pep'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)). Neither
pro se status nor incarceration constitutes good
cause. Sewraz v. Long, No. 3:08CV100, 2012 WL
214085, at *l-2 (E.D. Va. Jan. 24, 2012) (citing cases).
to Harper's assertion, Quintana and Dugger have not been
served. Harper's response fails to demonstrate good cause
for his failure to serve Quintana and Dugger in a timely
manner. Accordingly, Harper's claims against Quintana and
Dugger will be dismissed without prejudice pursuant to Rule 4
(m) of the Federal Rules of Civil Procedure.
STANDARD FOR MOTION TO DISMISS
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. Iqbal,
556 U.S. 662, 679 (2009).
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,
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 will not
act as the inmate's advocate and develop, sua
sponte, statutory and constitutional claims that 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).
SUMMARY OF PERTINENT ALLEGATIONS
25, 2013, Harper participated in "pill call" at
GCC. (Part. Compl. 5, ECF No. 14.) Nurse Jones gave Harper
pills "that he was not familiar with."
(Id.) According to Harper, he told Nurse Jones
"that she ha[d] given him [the] wrong prescription drugs
to take and that it was not his medication."
(Id.) Nurse Jones replied, "*Harper it's
your meds take them, '" so Harper took the
medication. (Id.) Later that night, Harper "was
rushed to Southside Regional Medical Center."
(Id.) His pulse and sugar were "very low,
" he had an irregular heartbeat, and was "showing
signs of an overdose." (Id.)
1, 2013, Nurse Hamlin "interviewed Harper to let him
know that Nurse Jones did indeed give him the wrong
medication and that he had the right to refuse medication
offered to him if [it was] not [his] medication[. ]"
(Id. at 6 (internal quotation marks omitted).) On
April 3, 2014, Nurse Hamlin told Harper "that he was
being monitored and prescribed Tylenol x 14 days thereafter,
" which Harper could buy from commissary. (Id.
(internal quotation marks omitted).) Harper "explained
to Nurse Hamlin that he needed more treatment and wanted to
see a specialist [for] dizziness, headaches, breathing
problems . . . and chest pains." (Id.) However,
he "was . . . ignored about the treatment for a
February 18, 2014, Harper had an appointment with Dr. Gore.
(Id. at 8.) Harper "explained to Dr. Gore the
headaches, dizziness and shortness of breathing [during]
conversations." (Id. (internal quotation marks
omitted)) Harper suggested that Dr. Gore send Harper "to
see a specialist to have a CAT scan [and] MRI done."
(Id.) Dr. Gore told Harper that "she felt that
seeing a specialist was not necessary." (Id.)
Dr. Gore "told Harper you are being monitored; since you
have written a complaint, you will be scheduled to see a
specialist." (Id.) Dr. Gore also mentioned that
Harper had been offered "Tylenol until further
notice." (Id.) Harper was subsequently
transferred to Lawrenceville Correctional Center
("LVCC") and has not yet seen a specialist.
(Id.) Harper seeks monetary damages from all
Defendants. (Id. at 9-10.)
Particularized Complaint raises the following claims for
relief with respect to Nurse Jones, Nurse Hamlin, and Dr.
Claim One: Nurse Jones (a) acted negligently and (b) violated
Harper's rights under the Eighth Amendment by providing
Harper the wrong medication ...