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.

§

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