Jamison v. Kincaid

DANIEL W. JAMISON, Plaintiff, v. STACEY A. KINCAID, et al., Defendants.

Civil Action No. 3:19CV19

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division

September 9, 2020

MEMORANDUM OPINION

Daniel W. Jamison, a Virginia inmate proceeding pro se and in forma pauperis, filed this 42 U.S.C. § 1983 action.¹ The action proceeds on Jamison's Particularized Complaint ("Complaint," ECF No. 19.) The matter is before the Court on Jamison's failure to serve Defendants Aramark, Carlisle, Rauf, and Thompson in a timely matter and the Motion to Dismiss filed by Defendants Kincaid, Sites, Kassa, Conner, Wurie, Aughavin, Rejeili, Able, Jones, and Plazyk.² (ECF No 28.) Jamison responded, (ECF Nos. 34, 35, 46), and Defendants replied, (ECF No. 37). For the reasons set forth below, the claims against Aramark, Carlisle,Rauf, and Thompson will be DISMISSED WITHOUT PREJUDICE and the Motion to Dismiss will be GRANTED IN PART AND DENIED IN PART.

I. Failure to Serve Defendants Aramark, Carlisle, Rauf, and Thompson

Pursuant to Federal Rule of Civil Procedure 4(m), Johnson had ninety (90) days from the filing of the Particularized Complaint to serve the defendants. Here, that period commenced on October 25, 2019. By Memorandum Order entered on June 30, 2020, the Court directed to Jamison to show good cause for his failure to serve Defendants Aramark, Carlisle, Rauf, and Thompson within the time required by Rule 4(m).³

Jamison responded that he was unaware that Defendants Aramark, Carlisle, Rauf, and Thompson had not been served. (ECF No. 46, at 1.) Jamison thought because the names of these defendants were on the docket sheet, "this meant these Defendants were served." (Id. at 2.)

District courts within the Fourth Circuit have found good cause to extend the ninety-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)).Leniency is especially appropriate when factors beyond the plaintiff's control frustrate his or her diligent efforts. See McCollum v. GENCO Infrastructure Sols., No. 3:10cv210, 2010 WL 5100495, at *2 (E.D. Va. Dec. 7, 2010) (citing T & S Rentals v. United States, 164 F.R.D. 422, 425 (N.D. W.Va. 1996)). Thus, courts are more inclined to find good cause where extenuating factors exist such as active evasion of service by a defendant, T & S Rentals, 164 F.R.D. at 425 (citing Prather v. Raymond Constr. Co., 570 F. Supp. 278, 282 (N.D. Ga. 1982)), or stayed proceedings that delay the issuance of a summons. McCollum, 2010 WL 5100495, at *2 (citing Robinson v. Fountainhead Title Grp. Corp., 447 F. Supp. 2d 478, 485 (D. Md. 2006)). However, "'[i]nadvertence, neglect, misunderstanding, ignorance of the rule or its burden, or half-hearted attempts at service' generally are insufficient to show good cause." Venable, 2007 WL 5145334, at *1 (quoting Vincent v. Reynolds Mem'l Hosp., 141 F.R.D. 436, 437 (N.D. W.Va. 1992)). While a court might take a plaintiff's pro se status into consideration when coming to a conclusion on good cause, Lane v. Lucent Techs., Inc., 388 F. Supp. 2d 590, 597 (M.D.N.C. 2005), neither pro se status nor incarceration alone constitute good cause. Sewraz v. Long, No. 3:08cv100, 2012 WL 214085, at *2 (E.D. Va. Jan. 24, 2012) (citations omitted).

Jamison has failed to demonstrate good cause for his failure to timely serve Defendants Aramark, Carlisle, Rauf, and Thompson. Nothing on the docket indicates these defendants were served. Moreover, inspection of the Motion to Dismiss filed by the other defendants would have revealed that Defendants Aramark, Carlisle, Rauf, and Thompson had not made an appearance. Additionally, the Marshal's Process Receipts and Returns for Defendants Aramark, Carlisle, Rauf, and Thompson reflect that the Marshal sent Jamison notice that the Marshal had not be able to serve Defendants Aramark, Carlisle, Rauf, and Thompson. (See, e.g., ECF No. 24, at 3.) Given these circumstances, Jamison fails to demonstrate that he made a "reasonable, diligenteffort[] to effect service on" Defendants Aramark, Carlisle, Rauf, and Thompson. Venable, 2007 WL 5145334, at *1 (citation omitted) (internal quotation marks omitted). Accordingly, all claims against Defendants Aramark, Carlisle, Rauf, and Thompson 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 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[ ] 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 thespeculative 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).

III. Defendants and Their Arguments for Dismissal

In his Complaint, Jamison names the following individuals as defendants: Stacey A. Kincaid, Sheriff of the Fairfax County Adult Detention Center ("ADC"); Lieutenant Colonel Mark W. Sites; First Lieutenant Aughavin; Second Lieutenant Messier; First Lieutenant Rejeili; PFC Able; PFC Jones; PFC Plazyk; Lishan Kassa, MD; Jonita Conner, MD; and, Janet Wurie, NP. Although Jamison listed as a defendant Jonita Conner, he fails to mention her in the body of the Complaint. "Where a complaint alleges no specific act or conduct on the part of the defendant and the complaint is silent as to the defendant except for his name appearing in the caption, the complaint is properly dismissed, even under the liberal construction to be given prose complaints." Potter v. Clark, 497 F.2d 1206, 1207 (7th Cir. 1974) (citing Brzozowski v. Randall, 281 F. Supp. 306, 312 (E.D. Pa. 1968)). Accordingly, all claims against Jonita Conner will be DISMISSED WITHOUT PREJUDICE.

In arguing for dismissal, the Defendants focus not on the specific allegations in the Complaint, but on broad arguments of mootness, immunity, and misjoinder. Moreover, as often as not, Defendants' arguments for dismissal fail to adequately address why under the governing law and in light of the pertinent allegations from the Complaint, any particular claim should be dismissed.

For example, Defendants notes that "Sheriff Kincaid and others cannot be personally liable for actions performed by their subordinates because there is no respondeat superior liability under § 1983." (ECF No. 29, at 8 (citing Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Defendants then conclude, "[t]o the extent plaintiff Jamison appears to claim that Sheriff Kincaid and Lt. Col. Sites are responsible for the actions of any other of the defendants, his claim should be dismissed." (Id.) Defendants, however, do not identify the claims against them, much less identify which claims are merely predicated on a theory of respondeat superior liability. Cf. United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991) ("A 'skeletal argument', really nothing more than an assertion, does not preserve a claim." (citing United States v. Giovannetti, 919 F.2d 1223, 1230 (7th Cir. 1990))). The Court "may properly depend upon counsel to apprise [it] of the issues for decision. [It] is not obligated to conduct a search for other issues which may lurk in the pleadings." Libertyville Datsun Sales, Inc. v. Nissan Motor Corp. in U.S.A., 776 F.2d 735, 737 (7th Cir. 1985) (quoting Desert Palace, Inc. v. Salisbury, 401 F.2d 320, 324 (7th Cir. 1968)). Because...