West v. Secretary, DOC et al
Filing
111
OPINION AND ORDER denying re: 104 MOTION to Dismiss amended complaint. Defendants shall file an answer to Plaintiff's Amended Complaint within twenty (20) days of the date of this Order. Signed by Judge Sheri Polster Chappell on 10/30/2018. (SLU)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
JAMES DARYL WEST,
Plaintiff,
v.
Case No: 2:16-cv-694-FtM-38CM
RONALD HEMPHILL, CARMELLO
BERRIOS, KAREN BLANKENSHIP,
H. WETTERER, BONNIE LAROSA,
ROBERT GILBREATH, FNU
SCHULTZ, DIANN SPRATT, JULIE
JONES, WEXFORD HEALTH
SOURCES, KATHY CONNER, K.
WILLIAMS and JAMES LICATA,
Defendants.
/
OPINION AND ORDER1
Before the Court is Defendants Blakenship and Larosa’s Motion to Dismiss
Amended Complaint (Doc. 104).
Defendants seek dismissal of Plaintiff’s Amended
Complaint (Doc. 21) filed on May 15, 2017, pursuant to Fed. R. Civ. P. 4 (m). Defendants
aver they are entitled to dismissal of the Amended Complaint because service of process
was not effectuated upon Defendants Blankenship and Larosa until May 21, 2018 (Doc.
88) and May 24, 2018, respectively, well beyond the 90-day period set forth in Rule 4(m).
1
Disclaimer: Documents filed in CM/ECF may contain hyperlinks to other documents or
websites. These hyperlinks are provided only for users’ convenience. Users are
cautioned that hyperlinked documents in CM/ECF are subject to PACER fees. By
allowing hyperlinks to other websites, this Court does not endorse, recommend, approve,
or guarantee any third parties or the services or products they provide on their websites.
Likewise, the Court has no agreements with any of these third parties or their websites.
The Court accepts no responsibility for the availability or functionality of any hyperlink.
Thus, the fact that a hyperlink ceases to work or directs the user to some other site does
not affect the opinion of the Court.
Because Plaintiff is incarcerated and proceeding in forma pauperis on his Amended
Complaint filed pursuant to 42 U.S.C. § 1983, the Court must “issue and serve all
process.” 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3). In the instant case,
Plaintiff completed corrected service forms as directed by Court in its February 12, 2018
Order. See Doc. 48. Thereafter, the Court directed service upon the Defendants on May
16, 2018. See Doc. 54. There is nothing in the record to indicate that pro se Plaintiff was
responsible for any delay in effectuating service in this matter. Richardson v. Johnson,
598 F. 3d 734, 739-40 (11th Cir. 2010) (reversing the district court’s dismissal of complaint
under Rule 4(m) on basis that pro se incarcerated plaintiff was not at fault for delay in
service). Indeed, “the failure of the United States Marshal to effectuate service on behalf
of an in forma pauperis plaintiff through no fault of that plaintiff constitutes ‘good cause’
for the plaintiff’s failure to effect timely service within the meaning of Rule 4(m).” Allen v.
Carey, 626 F. App’x 852, 853 (11th Cir. 2015) (quoting Rance v. Rocksolid Granit USA,
Inc., 583 F.3d 1284, 1288 (11th Cir. 2009)).
Accordingly, it is now
ORDERED:
Defendants Blankenship and Larosa’s Motion to Dismiss Amended Complaint
(Doc. 104) is DENIED and Defendants shall file an answer to Plaintiff’s Amended
Complaint within twenty (20) days of the date of this Order.
DONE and ORDERED in Fort Myers, Florida this 30th day of October 2018.
FTMP-1
Copies: All Parties of Record
2
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?