Young v. O'Brien et al
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING 27 REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING 30 THE PLAINTIFFS OBJECTIONS AND DENYING 29 PLAINTIFFS MOTION FOR COUNSEL. Should the petitioner choose to appeal, she is ADVISE D that she must file a notice of appeal within 60 days after the date of entry of this order. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 3/9/2016. (copy to Pro Se Plaintiff via CM,rrr) (nmm) Modified docket text on 3/9/2016 re: service copy(nmm). (Additional attachment(s) added on 3/9/2016: # 1 Certified Mail Return Receipt) (nmm).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Civil Action No. 5:15CV89
DR. GREGORY MIMS,
Clinical Director and
DR. JANET SHACKELFORD,
BOP Medical Director,
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING THE PLAINTIFF’S OBJECTIONS
AND DENYING PLAINTIFF’S MOTION FOR COUNSEL
The pro se1 plaintiff, a federal inmate, filed an action under
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971).
The plaintiff asserts that the defendants were
deliberately indifferent to her medical needs regarding a knee
The plaintiff seeks at least $500,000.00 in compensatory
Previously, United States Magistrate Judge James E.
Seibert entered a report and recommendation in which he denied the
plaintiff’s motion to proceed without prepayment of fees.
plaintiff filed objections to that report and recommendation, and
“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Dictionary 1416 (10th ed. 2014).
this Court affirmed and adopted the ruling of the magistrate judge.
The plaintiff ultimately paid the filing fee on October 26, 2015,
albeit long after it was initially due.
Judge Seibert then entered an order informing the plaintiff
about the preliminary review of her case and the requirements for
ECF No. 24.
The docket shows that the plaintiff
sent signed copies of the summonses, which were unexecuted, back to
ECF Nos. 25 and 26.
No explanation was provided as to
why the summonses were unexecuted, and the plaintiff did not
provide the Court with further information.
Seibert has since entered a report and recommendation, recommending
that the plaintiff’s complaint be dismissed without prejudice. The
magistrate judge points out that the plaintiff received an order
describing service of process and the summonses.
means that the plaintiff knew of her responsibility to timely serve
the defendants, but failed to do so.
Moreover, it has now been six
months since the plaintiff filed her complaint, and she has not
shown good cause as to why she failed to serve the defendants.
Therefore, the magistrate judge recommends that the plaintiff’s
civil action be dismissed without prejudice.
objections, she contends that she is autistic, and has been relying
on the help of another inmate.
She believes that her lack of
assistance explains why she has not served the proper parties for
over six months.
Further, she attaches what she claims are copies
of executed summonses.
The plaintiff also filed a motion seeking
the appointment of counsel, and points to her autism as justifying
her need for counsel.
For the reasons set forth below, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED, the plaintiff’s
objections are OVERRULED, and the plaintiff’s motion for counsel is
Under 28 U.S.C. § 636(b)(1)(C), this Court must conduct a de
novo review of any portion of the magistrate judge’s recommendation
to which an objection is timely made.
Because the plaintiff filed
objections to the report and recommendation, the magistrate judge’s
recommendation will be reviewed de novo.
Rule 4(m) of the Federal Rules of Civil Procedure,2 which
discusses the time limits for service of process, states the
If service of the summons and complaint is not made upon
a defendant within 120 days after the filing of the
complaint, the court, upon motion or on its own
initiative after notice to the plaintiff, shall dismiss
the action without prejudice as to that defendant or
direct that service be effected within a specified time;
It should be noted that the previous, unamended Federal Rules
of Civil Procedure effective when the plaintiff filed her action
apply, rather than the recently amended version which became
effective on December 1, 2015.
provided that if the plaintiff shows good cause for the
failure, the court shall extend the time for service for
an appropriate period. This subdivision does not apply
to service in a foreign country pursuant to subdivision
(f) or (j)(1).
The record shows that the plaintiff filed her complaint on July 10,
ECF No. 1.
Based on Rule 4(m), that means the plaintiff had
to serve the defendants by November 9, 2015.
According to the
record, however, the plaintiff failed to do so.
judge entered an order, which the plaintiff received, that notified
the plaintiff that she “is responsible for obtaining service of
process on her own, and in doing so, should be aware of” the
requirements under Rule 4(m).
ECF No. 24.
That order also
notified the plaintiff that she must serve the defendants by
summonses for the named defendants.
The record shows that the
plaintiff then sent signed copies of the unexecuted summonses to
this Court on January 22, 2016.
She did not identify either on the
summonses or by any other means why she failed to serve the
Therefore, based on the record, it is clear that the
plaintiff failed to comply with the requirements of Rule 4(m).
In her objections, the plaintiff believes that good cause
exists so as to excuse her untimely service.
She points to the
fact that she has autism, and that an inmate she relied on for
assistance is no longer available. She also attached copies of the
summonses that the Clerk provided her in October, and claims that
they have since been executed.
The United States Court of Appeals
for the Fourth Circuit has noted that “Rule 4(m) requires that if
the complaint is not served within 120 days after it is filed, the
complaint must be dismissed absent a showing of good cause.”
Mendez v. Elliot, 45 F.3d 75, 78 (4th Cir. 1995).
“plaintiff bears the burden of showing good cause.”
U.G. Lively, 897 F.Supp. 955, 959 (S.D. Tex. 1995) (citing Kersh v.
Derozier, 851 F.2d 1509, 1512 (5th Cir. 1988)).
its minimum, “means excusable neglect.
A plaintiff may also be
personally received actual notice of the lawsuit; (b) the defendant
would suffer no prejudice; and (c) plaintiff would be severely
prejudiced if his complaint were dismissed.” Boudette v. Barnette,
923 F.2d 754, 756 (9th Cir. 1991).
In this case, the plaintiff has made no showing of good cause.
The plaintiff has not provided any medical proof of her autism.
Taking her claim of autism at face value, the plaintiff has
demonstrated no inability to litigate her claim. Her responses and
filings do not show any limitations in her writing, and the record
shows that she has previously filed documents in support of her
Absent good cause, the plaintiff’s complaint must be
complaint is DISMISSED WITHOUT PREJUDICE and her objections are
As to the plaintiff’s motion for appointment of counsel, this
Court points out that in civil cases, “there is no constitutional
or statutory right to appointed counsel.”
Ward v. Smith, 721 F.3d
determining whether to appoint counsel, “a trial judge should
consider: (1) the plaintiff’s financial ability to retain an
attorney; (2) the efforts of the plaintiff to retain counsel; and
(3) the merits of the case.” Scott v. Health Net Federal Services,
LLC, 463 F. App’x 206, 209 (4th Cir. 2012) (citing Young v. K-Mart
Corp., 911 F. Supp. 210, 211-12 (E.D. Va. 1996).
“decision of whether to appoint counsel is within the discretion of
the trial judge.” Young, 911 F. Supp. at 211 (citing Poindexter v.
Federal Bureau of Investigation, 737 F.2d 1173, 1179 (D.C. Cir.
1984); Ivey v. Board of Regents, 673 F.2d 266, 269 (9th Cir.
In this, case, the above factors weigh against appointing
Although proceeding pro se, the plaintiff has not shown
any effort to obtain counsel.
Further, the merits of her case do
not warrant the appointment of counsel.
Therefore, based on the
discretion possessed by this Court, the plaintiff’s motion for
counsel is DENIED.
For the reasons set forth above, the report and recommendation
of the magistrate judge is AFFIRMED AND ADOPTED (ECF No. 27) and
Accordingly, the plaintiff’s complaint is hereby DISMISSED WITHOUT
Finally, the plaintiff’s motion for counsel is DENIED
(ECF No. 29).
Should the petitioner choose to appeal this order of this
Court to the United States Court of Appeals for the Fourth Circuit
on the issues to which objection was made, she is ADVISED that she
must file a notice of appeal with the Clerk of this Court within 60
days after the date of the entry of this order.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to the pro se plaintiff by certified mail and to
counsel of record herein. Pursuant to Federal Rule of Civil
Procedure 58, the Clerk is DIRECTED to enter judgment on this
March 9, 2016
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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