United States District Court, E.D. Virginia, Richmond Division
A. Gibney, Jr., United States District Judge.
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.
to Federal Rule of Civil Procedure 4(m), Hinton had ninety
(90) days from the filing of the complaint to serve the
defendants. 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.
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).
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
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).
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).
Summary of Pertinent Allegations
matter is currently proceeding on Hinton's Second
Particularized Complaint ("Complaint," ECF No.
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.
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
demands monetary damages and injunctive ...