West v. Secretary, DOC et al, No. 2:2016cv00694 - Document 111 (M.D. Fla. 2018)

Court Description: 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)

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West v. Secretary, DOC et al Doc. 111 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. Dockets.Justia.com 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

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