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Hinton v. Amonette

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

May 9, 2019

DONALD HINTON, Plaintiff,
v.
MARK AMONETTE, et al., Defendants.

          MEMORANDUM OPINION

          John A. Gibney, Jr., United States District Judge.

         Donald Hinton, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action. The matter is before the Court on Hinton's failure to serve Defendants Calhoun, Corion Health Care Group, the Geo Group, Inc., and McCabe and the Motion to Dismiss filed by Defendants Amonette and Clarke.

         I. Service Issues

         Pursuant to Federal Rule of Civil Procedure 4(m), Hinton had ninety (90) days from the filing of the complaint to serve the defendants.[1] Here, that period commenced on December 6, 2018. More than ninety (90) days elapsed and Hinton failed to serve Defendants Calhoun, Corion Health Care Group, the Geo Group, Inc., and McCabe. Accordingly, by Memorandum Order entered on March 20, 2019, the Court directed Hinton to show good cause for his failure to serve the above defendants. Hinton responded.

         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 120-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 * 1-2 (E.D. Va. Jan. 24, 2012) (citing cases).

         Here, Hinton fails to offer any coherent explanation of his efforts to provide a viable service address for Defendants Calhoun, Corion Health Care Group, the Geo Group, Inc., and McCabe during the 90-day service window. Instead, Hinton appears to argue that he has properly served a copy of each document upon the two Defendants who have responded, Defendants Amonette and Clarke. Because Hinton fails to demonstrate good cause, all claims against Defendants Calhoun, Corion Health Care Group, the Geo Group, Inc., and McCabe will be DISMISSED WITHOUT PREJUDICE.

         II. Standard for a Motion to Dismiss

          "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 plaintiffs 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).

         III. Summary of Pertinent Allegations

         The matter is currently proceeding on Hinton's Second Particularized Complaint ("Complaint," ECF No. 19).[2] Harold Clarke is the Director of the Virginia Department of Corrections ("VDOC"). (Id. at 3.) Although Hinton has Hepatitis C, Defendant Clarke has promulgated a policy that denies inmates medication for Hepatitis C "solely because of cost. 'The policy states you must be real sick with this deadly virus' before medication can be given . ..." (Id. at 3.) Defendant Clarke promulgated this policy despite the fact that the available medication can cure the Hepatitis C virus if provided in the earlier stages of the infection. (Id.)

         Mark Amonette, is the Chief Medical Director of the VDOC. (Id. at 4.) In this capacity, Defendant Amonette enforces the above-described policy. (Id.) Defendant Amonette "say[s] you must be real sick with the deadly virus, before treating the virus" (Id.) This policy violates Hinton's rights to be protected "from not only ongoing harm, but also against the risk of future harm." (Id. (internal quotation marks omitted).)

         Hinton demands monetary damages and injunctive ...


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