Grantham v. United States Of America
Filing
31
ORDER ADOPTING 23 Report and Recommendations of the Magistrate Judge as applied to Defendant Veterans Affairs and Defendant United States of America. Plaintiff's request to voluntarily dismiss his claims against the Department of Veterans Affa irs will be GRANTED. Therefore, the Department of Veterans Affairs' 16 Motion to Dismiss is DENIED AS MOOT, the United States of America's 18 Motion to Dismiss is GRANTED and Plaintiff's claims against the United States of America will be DISMISSED WITHOUT PREJUDICE. The Court requests that the parties clarify the status of the Veteran Affairs Clinic Nurse Manager and Dr. Christian Jimmerson within 10 days of the issuance of this Order. Signed by Chief Judge Lisa G. Wood on 4/11/2017. (ca)
Sn
Btsitrtct Court
for tfie ^outl^em Btotrtct of 4leorsta
Wapttoisi Bttiifiiton
FILED
Scott L. Poff, Clerk
United States District Court
By casbell at 8:32 am, Apr 11, 2017
DENNIS RAY GRANTHAM,
Plaintiff,
No. 5:16-CV-61
V.
UNITED STATES OF AMERICA &
DEPARTMENT OF VETERANS
AFFAIRS,
Defendants.
ORDER
Before the Court are Plaintiff Dennis Ray Grantham's
(^'Plaintiff") Objections (Dkt. No. 24) to the Magistrate
Judge's Report and Recommendation ("R & R") (Dkt. No. 23).
For the reasons stated below. Plaintiff's Objections are
OVERRULED and the Court ADOPTS the R &
Defendant
the
United
States
of
R as applied to
America
and
Defendant
Department of Veterans Affairs.
FACTUAL BACKGROUND
Plaintiff
2016.
filed
Dkt. No. 1.
his
initial
Complaint
on
July
25,
Plaintiff then amended his Complaint
in August 2016, naming three Defendants: the United States
of America, the
A0 72A
(Rev. 8/82)
Department of
Veterans Affairs, and the
Department of Veterans Affairs Clinic Nurse Manager and
Dr.
Christian
Plaintiff's
Jimmefson.
Complaint
Dkt.
is
that
No.
he
4.
The
received
care at the Department of Veterans Affairs.
basis
of
insufficient
Dkt. No. 4.
DISCUSSION
While not specifically stated, it appears Plaintiff
bases
his
U.S.C.
ยง
claim
the
Affairs,
dismissal.
As
the
without
Tort
to
Plaintiff
Dkt. No. 14.
dismissal
against
Federal
2679(b)(1).
Veterans
to
on
Defendant
has
Act.
See
Department
requested
28
of
voluntary
Neither Defendant has objected
prejudice.
Department
Claims
of
As
such,
Veterans
all
Affairs
claims
will
be
DISMISSED WITHOUT PREJUDICE.
Plaintiff's letter, however, did not clearly request
a
voluntary dismissal as to the
Veterans Affairs Clinic
Nurse Manager and Dr. Christian Jimmerson.
Dkt. No. 14.
As such, the Court declines to grant voluntary dismissal
as to those parties.
parties
have
Plaintiff
individual
that
the
made
seeks
In addition, it is unclear if these
an
to
continue
defendants.
parties
appearance
his
in
claims
Accordingly,
clarify
the
this
the
status
of
action
against
or
if
these
Court
requests
the
Veterans
Affairs Clinic Nurse Manager and Dr. Christian Jimmerson.
As
for
the
United
States
against it must be dismissed.
of
America,
the
claims
A plaintiff serving the
United States of America or its agencies must deliver a
copy of the summons and the complaint to both the United
States Attorney for the district in which the action is
brought and
Fed.
the
Attorney
General of the
R. Civ. P. 4(i){l){A).
United
Here, there is
States.
no dispute
that no summons was sent to the United States Attorney for
the Southern District of Georgia and no documentation at
all was sent to the Attorney General of the United States'
Office.
However, under Federal Rule of Civil Procedure 4(m),
even
the
plaintiff
fails
to
properly
serve
the
defendant," the court may ^'direct that service be effected
within a specified time; provided that if the plaintiff
shows good cause for the failure, the court shall extend
the time for service for an appropriate period."
Lepone-
Dempsey v. Carroll Cty. Comm'rs, 476 F.3d 1277, 1281 (11th
Cir. 2007) (citing
Fed. R. Civ. P. 4(m))
.
''Good cause
exists 'only when some outside factor[,] such as reliance
on faulty advice, rather than inadvertence or negligence,
prevented
service.'"
(citing
Prisco
v.
Frank,
929
F.2d 603, 604 (11th Cir. 1991) (alteration in original)).
Here, Plaintiff cites nothing more than his pro-se status
to excuse his failure to properly serve the United States
of
America.
However,
because
This
the
it
is
Court
bases
insufficient
grants
its
to
survive
dismissal
decision
on
a
dismissal.
without
failure
prejudice
of
service
rather than substantive grounds and Plaintiff s action is
not yet barred by the statute of limitations.
As such.
Plaintiff is free to refile this action and effect proper
service of process on the United States of America.
CONCLUSION
For the reasons above, the Plaintiffs Objections are
OVERRULED (Dkt. No. 24) and the Magistrate Judge's R & R
(Dkt. No. 23) is ADOPTED as applied to Defendant Veterans
Affairs
and
Plaintiffs
Defendant
request
to
the
United
voluntarily
States
of
dismiss
America.
his
claims
against the Department of Veterans Affairs (Dkt. No. 14)
will be GRANTED.
Affairs'
MOOT,
Motion
the
Therefore, the
to
United
Dismiss
States
of
Department of
(Dkt.
No.
America's
16)
is
Motion
Veterans
DENIED
to
AS
Dismiss
(Dkt. No. 18) is GRANTED and Plaintiff's claims against
the
United
PREJUDICE.
States
of
America
will
be
DISMISSED
WITHOUT
The Court requests that the parties clarify
the status of the
Veterans Affairs Clinic Nurse
Manager
and Dr. Christian Jimmerson within ^ days of the issuance
of this Order.
so ORDERED, this 11th day of March, 2017.
LISJTGODBEY "WOOp, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN
A0 72A
(Rev. 8/82)
DISTRICT OF GEORGIA
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