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Taylor v. Hunter

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

November 15, 2016

HUNTER, et al., Defendants.



         Gregory Taylor, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.[1] This matter is before the Court on the Motion to Dismiss (ECF No. 31) filed by Superintendent Hunter, [2] the Court's authority to review complaints by individuals proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2), and the Court's Memorandum Order of September 27, 2016, directing Taylor to show cause as to why Jenkins and Williams[3] should not be dismissed without prejudice for failure to serve them in a timely manner. Despite receiving Roseboro[4] notice, Taylor has not responded to the Motion to Dismiss. For the reasons that follow, the Court will dismiss without prejudice all claims against Jenkins and Williams pursuant to Rule 4(m) of the Federal Rules of Civil Procedure, grant the Motion to Dismiss (ECF No. 31) filed by Superintendent Hunter, and dismiss Taylor's claim against Duty Sergeant.[5] The action will be dismissed.


         Under Federal Rule of Civil Procedure 4(m), [6] Taylor had ninety (90) days from April 14, 2016 to serve the Defendants. The summonses issued to Defendants Jenkins and Williams were returned as unexecuted on June 24, 2016. (ECF No. 24, at 2, 5.) With respect to Williams, the Marshal stated: "Unable to determine which Off. Williams is referenced in summons; multiple Williams located @ Piedmont Reg. Jail. Please provide more identifiers and time frame." (Id. at 2.)[7]With respect to Jenkins, the Marshal noted: "No longer employed[.] Per Gloria Giles, Admin. Asst. does not know where Lt. Jenkins works currently. Has no forwarding info regarding whereabouts." (Id. at 5.) Copies of the Marshal's service documents were sent to Taylor. (Id. at 3, 6.)

         After the summonses were returned unexecuted as to Jenkins and Williams, Taylor made no attempt to provide (1) more identifying information, such as a first name, for Williams and (2) a current place of employment or address for Jenkins. Accordingly, by Memorandum Order entered on September 27, 2016, the Court directed Taylor "to show good cause why his claims against Defendants Jenkins and Williams should not be dismissed without prejudice." (ECF No. 33, at 1.) Taylor has responded, stating:

I received a[] Memorandum Order October 4, 2016 to show good cause for the failure to serve defendants Jenkins and Williams. I have no way to serve them and need the help of the federal marshals to assist me again. I'm not sure but I believe Jenkins does not work here anymore but Williams is still employed at Piedmont Regional Jail. Defendants can be reached at Piedmont Regional Jail 801 Industrial Park Road Farmville, VA 23901.

(ECF No. 34, at l.)

         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. 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)). 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).

         Taylor's response fails to demonstrate good cause for his failure to serve Williams and Jenkins in a timely manner. In June of 2016, Taylor was advised that the United States Marshal Service would need more identifying information for Defendant Williams since there were multiple individuals with the last name Williams employed at PRJ. Taylor was also advised that Jenkins no longer worked at PRJ, and that the Marshal was unable to obtain information regarding a current place of employment or a forwarding address. Despite this notice, Taylor failed to make an attempt to submit such information to the Court. Taylor provides no reason for his lack of diligence. Accordingly, Taylor's claims against Defendants Jenkins and Williams will be dismissed without prejudice pursuant to Rule 4 (m) of the Federal Rules of Civil Procedure.


         Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon "'an indisputably meritless legal theory, '" or claims where the "'factual contentions are clearly baseless.'" Clay v. Yates, 809 F.Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). The second standard is the familiar standard for a motion to dismiss under Fed.R.Civ.P. 12(b)(6).

         "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[ ] onlyla 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).


         In his Complaint, Taylor states:[8]

I was told by officer Shearn and Williams to pack up my things. I was moving to A pod. I immediately told them I had an enemy over there. They asked me what was his name. I told them "Inferno" was his nickname. They said so you're moving anyway. So I packed up and went into A pod. And immediately as soon as I went in, I was told to leave or I was going to get my ass kicked. Both officers heard this. They left. The inmates told me again to get out or they were going to whip my ass. I banged on the door and both officers came back. I told them what the inmates kept saying. Officer Shearn told me "It's not my problem you deal with it." And they left again. I then went into my cell and was confronted by 4 to 6 inmates questioning me about a tattoo on my neck. They were saying a lot of racial comments to me. Then they said you're the one who killed two black guys in Buckingham. I said no I am accused of killing two white guys in self-defense. Then I turned around to make up my bunk and someone said hey so I turned around and was punched above my left eye, also in my left ear. I was bleeding so badly I could barely see. They started going through my things taking what they wanted. They told me to go "beat the door" also they said you better clean up all that blood and someone gave me a rag and some kind of cleaning stuff. So I cleaned up all the blood really quick. Then I went and banged on the window and got the officers' attention. I then had my things by the door and the inmates started taking more of my things. I could not do anything because I was literally afraid for my life. Finally the officers came back. They took me out and handcuffed me. Officer Shearn asked me who had done it. I told him again I only knew the one inmate's nickname "Inferno." Then I said look at the video. Officer Shearn laughed and said "Oh urn the video is broken." ...

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