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Harper v. Gore

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

November 10, 2016

DR. GORE, et al., Defendants.


          Robert E. Payne Senior United States District Judge.

         Linwood Harper, a Virginia inmate proceeding pro se and in forma pauperis, has filed this 42 U.S.C. § 1983 action.[1] 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, [2] 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[3] 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.


         Under Federal Rule of Civil Procedure 4(m), [4] 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.)

         By 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 matter.
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).)

         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 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).

         Contrary 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.


         ''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. Iqbal, 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, 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).


         On June 25, 2013, Harper participated in "pill call" at GCC. (Part. Compl. 5, ECF No. 14.)[5] 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.)

         On July 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 specialist." (Id.)

         On 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.)

         Harper's Particularized Complaint raises the following claims for relief with respect to Nurse Jones, Nurse Hamlin, and Dr. Gore:

Claim One: Nurse Jones (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment[6] by providing Harper the wrong medication ...

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