United States District Court, E.D. Virginia, Richmond Division
E. PAYNE, SENIOR UNITED STATES DISTRICT JUDGE
Taylor, a Virginia inmate proceeding pro se and
in forma pauperis, filed this 42 U.S.C. § 1983
action. This matter is before the Court on the
Motion to Dismiss (ECF No. 31) filed by Superintendent
Hunter,  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 should not be dismissed without prejudice
for failure to serve them in a timely manner. Despite
receiving Roseboro 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. The action will
FAILURE TO SERVE JENKINS AND WILLIAMS
Federal Rule of Civil Procedure 4(m),  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.)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.)
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.)
(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).
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
PRELIMINARY REVIEW AND STANDARD FOR MOTION TO DISMISS
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).
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[ ]
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).
SUMMARY OF TAYLOR'S ALLEGATIONS
Complaint, Taylor states:
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." ...