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Matthews v. Rational Wiki Foundation

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

March 24, 2017

Alexander Otis Matthews Plaintiff,
v.
Rational Wiki Foundation, et al, Defendants.

          MEMORANDUM OPINION

         This matter comes before the Court for failure to serve pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and failure to prosecute pursuant to Rule 41(b). For the reasons discussed below, the Court hereby DISMISSES the Complaint WITHOUT PREJUDICE.

         I. Background

         Plaintiff has been incarcerated in the Bureau of Prisons since September 30, 2011. During that time he has filed no less than fourteen lawsuits in state or federal court. The present action represents one of a number of civil lawsuits alleging injuries unrelated to Plaintiffs incarceration. The Complaint, filed on February 25, 2014, alleges per se libel, libel, and injurious falsehood perpetrated by Defendant, Rational Wiki Foundation, and certain unidentified authors (the "John Doe Defendants") based on statements appearing on the Rational Wiki internet site. Dkt. No. 1. On July 13, 2015, the Court granted Plaintiff leave to amend the complaint to add Rational Media Foundation (an entity related to the Rational Wiki Foundation) as an additional defendant. Dkt. No. 2. On March 10, 2016, Plaintiff moved to amend the Complaint to update the identities of the John Doe Defendants. Dkt. No. 3. In conjunction with the Motion, Plaintiff submitted evidence concerning the purported identities of the John Doe Defendants. Dkt. No. 4. On the basis of this additional evidence, on October 3, 2016, the Court granted the Motion to Amend the Complaint for the limited purpose of providing the date of discovery of the identities of the John Doe Defendants and gave Plaintiff leave to serve Rational Media Foundation as a Defendant. Dkt. No. 6. The Court also admonished Plaintiff to cease conflating the case captions or procedural history of this matter with another suit Plaintiff had filed with the Court, 1:14CV207, in which Plaintiff alleges a breach of contract involving unrelated parties. Id. Plaintiff complied with the Court's Order to amend the complaint with the date of discovery for the identified John Doe Defendants. Dkt. No. 7. The Court found on October 13, 2016 that, based on the date of discovery, the statute of limitations had run with respect to Plaintiffs claims against the John Doe Defendants. Dkt. No. 8. Plaintiff timely filed a Motion for Reconsideration. Dkt. No. 9. On February 8, 2017, the Court denied the Motion for Reconsideration finding that "Plaintiff waited more than a year after he discovered [the John Doe Defendants'] identities before attempting to amend the Complaint to include their names" thereby imposing significant prejudice on the John Doe Defendants. Dkt. No. 10, at 4.

         On the same day, the Court ordered Plaintiff to show cause why no Defendants have been served in this matter since the filing of the Complaint on February 2014. Dkt. No. 12. Plaintiff has filed a response, Dkt. No. 13, which the Court takes under consideration in issuing this memorandum opinion.

         II. Legal Standard

         Ordinarily, "[i]f a defendant is not served within 120 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant." Fed.R.Civ.P. 4(m). Further, "[a] district court may dismiss an action for lack of prosecution, either upon motion by a defendant pursuant to Federal Rule of Civil Procedure 41(b) or on its own motion." McCargo v. Herick, 545 F.2d 393, 396 (4th Cir. 1976). In deciding whether to dismiss a case under Rule 41(b), a court should "ascertain (1) the degree of personal responsibility of the plaintiff, (2) the amount of prejudice caused the defendant, (3) the existence of a drawn out history of deliberately proceeding in a dilatory fashion, and (4) the existence of a sanction less drastic than dismissal." Chandler Leasing Corp. v. Lopez, 669 F.2d 919, 920 (4th Cir. 1982) (internal quotation marks and citation omitted). "[T]he four factors discussed in Chandler are not a rigid four-prong test. Rather, the propriety of a dismissal [with prejudice] depends on the particular circumstances of the case." Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir. 1989).

         III. Discussion

         In order to determine whether dismissal is warranted in this case, the Court considers each of the Chandler Leasing factors in turn.

         A. The Degree of Personal Responsibility of the Plaintiff

         Because Plaintiff litigates pro se, he alone bears the responsibility for his failure to effect service and prosecute the case. See Craft v. Astrue, No.1:10CV9, 2012 WL 6569021, at *2 (M.D. N.C. Dec. 17, 2012) ("Plaintiff has proceeded pro se from the outset, thus she has demonstrated that she is capable of filing pleadings and papers and she alone bears the responsibility for her failure to prosecute her case."). While leniency is most appropriate for pro se prisoners because of the unique circumstances of incarceration, "[p]ro se litigants are not immune from any sanction by virtue of their status alone." Zaczek v. Fauquier Cty., Va., 764 F.Supp. 1071, 1076 (E.D. Va. 1991), aff'd, 16 F.3d 414 (4th Cir. 1993).

         Plaintiff argues that he is entitled to leniency in this case for two reasons. First, "the plaintiff is a federal inmate who the Court permitted to proceed on an indigent basis when this instant suit was originally joined with EDVA/Alexandria Case No. 1:14-cv-207." Dkt. No. 13 at 1. Second, Plaintiff argues that the Court's October 13, 2016 Order contained an implicit acknowledgment that the defendants were due to be served pursuant to the rules for a plaintiff proceeding in forma pauperis.

         Plaintiffs arguments are not supported by the record and Plaintiffs experience as a regular litigant before this Court necessitates holding him accountable for his failure to prosecute. The record in this case does not include a request to proceed in forma pauperis. Plaintiff did make a request to proceed in forma pauperis which was received by the Court one day after the filing of the Complaint in this matter (and one day after the filing of the Complaint in 1:14CV207) but the motion to proceed in forma pauperis is captioned for the named defendant in 1:14CV207 not 1:14CV257.[1] The Court has also never explicitly or impliedly instructed the clerk of court to effect service on Plaintiffs behalf. In the October 13, 2016 Order the Court stated that the "Court is positioned to rule on Plaintiffs outstanding requests for relief, to update the identities of the John Doe Defendants and serve those individuals." Dkt. No. 8. The most appropriate reading of this clause, taking into account that Plaintiff had hitherto not received any authorization to proceed in forma pauperis in this matter, is that the Court was prepared to rule on Plaintiffs request to add the John Doe Defendants to the Complaint so that he could serve them-and this is precisely what the Court did.

         Furthermore, any possible ambiguity in the Order is undermined by Plaintiffs experience filing with the Court. Plaintiff has filed numerous motions before the Court and on appeal to the Fourth Circuit and in his motions he demonstrates a familiarity with the Federal Rules of Civil Procedure. See Zaczek, 764 F.Supp. at 1079 (E.D. Va. 1991) (finding inability to claim ignorance of the Federal Rules significant in attributing blame for delay); see also U.S. ex. Rel. Prince, 2014 WL 1463786, at *7 (same); VanDiver v. Martin, 304 F.Supp.2d 934, 942 (E.D. Mich. 2004) ("The record shows that Plaintiff has been a party in at least two prior lawsuits and he should have inquired, at some point before December 2003, about the status of [serving defendants], especially as the 120 day service of process deadline under Rule 4(m) rapidly approached."). Plaintiffs failure to effect service is especially inexcusable, and his arguments that he believed he was proceeding in forma pauperis ring hollow, because he has previously effected service while proceeding in forma pauperis. In Matthews v. Faulconer et al, 1:12CV1473, Plaintiff received authorization to proceed in forma pauperis and successfully effected service through the clerk of court. 1:12CV1473, Dkt. No. 29. Plaintiff even expressly instructed the clerk of court to add additional defendants to the complaint and serve them at the addresses he provided. 1:12CV1473, Dkt. No. 26. But in this case, as discussed above, Plaintiff did not request authorization to proceed in forma pauperis and no one has effected service on his behalf. Nevertheless, Plaintiff has taken no action since filing the Complaint to inquire with the Court as to any in forma pauperis status or to effect service on his own. Either Plaintiff understood that he had not received in forma pauperis status and failed to effect service on his own or he unreasonably believed that he had received in forma pauperis status and failed to follow up with the clerk of court when no service was issued on his behalf. In either case, Plaintiffs failure to obtain service was within his control and this factor favors dismissal.

         B. The Amount of Prejudice ...


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