Harper v. Gore et al, No. 3:2015cv00303 - Document 38 (E.D. Va. 2016)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 11/09/2016. Copy mailed to Plaintiff. (walk, )
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Harper v. Gore et al Doc. 38 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division :NQV I 0 20l6 LINWOOD HARPER, CLERK, U.S. DISTRICT COURT RICHMOND VA Plaintiff, Civil Action No. 3:1SCV303 v. DR. GORE, et al., Defendants. MEMORANDUM OPINION Linwood Harper, a Virginia inmate proceeding pro se and in forma pauperis, Order Memorandum directed No . 1 o, has Harper at Complaint. 2.) filed this 42 U.S.C. entered to on submit a Harper has (ECF No. 14.) 18, 2015, Particularized submitted the By Court Complaint. his (ECF Particularized The matter is before the Court on the Motion to Dismiss (ECF No. 31) 1 November action. 1 1983 § filed by Defendants Nurse Jones, The statute provides, in pertinent part: Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law . . . . 42 u.s.c. § 1983. Dockets.Justia.com Nurse Hamlin, and Dr. Order of August 22, why Defendants Gore, 2 as well as the Court's Memorandum 2016, directing Harper to show cause as to Quintana and Dugger should not be dismissed without prejudice for failure to serve them in a timely manner Despite receiving Roseboro 3 notice, Harper has not (ECF No. 36) . responded below, to the against the Motion Court will Quintana and to Dismiss. dismiss Williams For without pursuant the reasons prejudice to Rule all 4 (m) stated claims of the The Court will also grant in Federal Rules of Civil Procedure. part and deny in part the Motion to Dismiss. I. Under ninety (90) FAILURE TO SERVE QUINTANA AND DUGGER Federal Rule of Civil days from March 23, Procedure 4 (m), 4 Harper had 2016 to serve the Defendants. 2 Nurse Jones is a Registered Nurse at Greensville Correctional Center ( "GCC") . Nurse Hamlin is the Head Nurse at GCC. Dr. Gore is the Medical Director at GCC. 3 Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975). 4 Rule 4(m) provides, in pertinent part: If a defendant is not served within 90 days after the complaint is filed, the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period. Fed. R. Civ. P. 4(m). 2 In his Notice of Appearance, counsel for Matheny, Crowell, and Lowe stated that he was unable to enter an appearance or waive service of process for Quintana "because there are no current or former Greensville Correctional No. 21, 1 at Center Counsel n.1.) Corrections of Department Virginia with was that also employees last name." unable to enter at (ECF an appearance or waive service of process for Dugger, "who [was] no longer Corrections." employed by the Virginia Department of (Id.) By Memorandum Order entered on August 22, 2016, the Court directed Harper "to show good cause why the action should not be dismissed without prejudice" No. 36, at 1.) as to Quintana and Dugger. (ECF Harper has responded, stating in pertinent part: 1. On or about April, 2016 the defendants Dr. Gore, et al. were served with a copy of said Complaint in the above styled matter. 2. Plaintiff now respectfully submits to this Court that because the defendants in this matter were served by Quintana and Dugger, and within the required time frame, that the plaintiff has complied and met the required rules under Federal Rules of Civil Procedure in this matter and therefore, plaintiff's action pending in this Court should not be dismissed. (ECF No. 37, at 1 (spelling and grammar corrected).) Rule 4 (m) requires that, absent a showing of good cause, the Court must dismiss without prejudice any complaint in which the plaintiff fails 90-day period. to serve the defendant within the allotted Fed. R. Civ. P. 4(m). 3 Courts within the United States Court of Appeals for the Fourth Circuit found good cause to extend the 90-day time period when the "'reasonable, diligent defendant.'" 5145334, Access efforts to ef feet Venable v. Dep' t of Corr., at *1 (E.D. Va. Floors, Inc., Feb. 31 F. 7, 2007) Supp. plaintiff has made service No. 3: 05cv821, on the 2007 WL (quoting Hammad v. Tate 2d 524, 528 {D. Md. 1999)). Neither pro se status nor incarceration constitutes good cause. Sewraz v. Long, No. 3:08CV100, 2012 WL 214085, at *1-2 (E.D. Va. Jan. 24, 2012) (citing cases). Contrary to Harper's assertion, Harper's response not been served. Quintana and Dugger have fails to demonstrate good cause for his failure to serve Quintana and Dugger in a timely manner. Accordingly, Harper's claims against Quintana and Dugger will be dismissed without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure. II. "A motion sufficiency of STANDARD FOR MOTION TO DISMISS to a dismiss complaint; contests surrounding the under importantly, facts, applicability of defenses." Rule 12 (b) ( 6) it does tests not the merits of a claim, the resolve or the Republican Party of N. C. v. Martin, 980 F. 2d 943, 952 (4th Cir. 1992) (citing SA Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure§ 1356 (1990}}. In considering a motion to dismiss for failure to state a claim, 4 a plaintiff's well-pleaded allegations are taken as true and the complaint is plaintiff. Cir. viewed in the most favorable to the Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th 1993) ; see also Martin, applies light only to factual considering a identifying pleadings conclusions, motion are 980 F. 2d at 952. allegations, to dismiss that, not entitled to however, can because This principle are "a to choose they the and begin no assumption court more of by than truth." Ashcroft v. Igbal, 556 U.S. 662, 679 {2009). The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to notice of what the . claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, (second alteration in original) U.S. 41, 47 (1957)). 'give 550 the defendant fair u. s. 544, 555 {2007) {quoting Conley v. Gibson, 355 Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" "formulaic recitation of the Id. Instead, a plaintiff must allege facts (citations omitted). sufficient level," "to raise a id. "plausible (citation on its "conceivable." Id. right to relief omitted), face," "A elements of a or a id. above stating at 570, cause of action." a the speculative claim rather that than is merely claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw 5 the reasonable inference Iqbal, misconduct alleged." Corp., that for 556 U.S. is liable for the at 678 (citing Bell Atl. In order for a claim or complaint to 550 U.S. at 556). survive dismissal the defendant failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of or] her claim." [his Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 construes 1151 and (4th Cir. 2002}}. pro se (4th Cir. develop, that the inmate complaint. 1997) complaints, 1978), sua Lastly, while Gordon v. the Court liberally Leeke, 574 F.2d 1147, it will not act as the inmate's advocate sponte, failed statutory to See Brock v. and clearly raise Carroll, constitutional on the 107 F.3d 241, face 243 claims of his (4th Cir. (Luttig, J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). III. SUMMARY OF PERTINENT ALLEGATIONS On June 25, 2013, GCC. (Part. Compl. pills "that he was 5, not Harper participated 14.) 5 ECF No. familiar 5 in "pill call" at Nurse Jones gave Harper with." (Id.) According to The Court utilizes the pagination assigned to the Particularized Complaint by the CM/ECF docketing system. The Court corrects the spacing, capitalization, and punctuation in quotations from the Particularized Complaint. The Court omits those allegations that do not pertain to Defendants Gore, Hamlin, and Jones. 6 Harper, wrong he told Nurse prescription drugs (Id.) medication." Jones "that she ha [d] given him take and that it to Nurse Jones replied, was night, Harper (Id.) Center." "was rushed to not his "'Harper it's your meds take them,'" so Harper took the medication. that [the] Southside (Id.) Regional Later Medical His pulse and sugar were "very low," he had an irregular heartbeat, and was "showing signs of an overdose. 11 (Id.) On July 1, him 2013, Nurse Hamlin "interviewed Harper to let know Nurse Jones medication that and that offered to him if he did indeed the right had [it was] not give to him the ref use [his] medication [.] (internal quotation marks omitted) . ) On April 3, wrong medication (Id. at 6 11 2014, Nurse Hamlin told Harper "that he was being monitored and prescribed Tylenol x 14 commissary. days (Id. thereafter," which Harper could (internal quotation marks omitted).) "explained to Nurse Hamlin that he needed more buy from Harper treatment and wanted to see a specialist [for] dizziness, headaches, breathing problems . . . and chest pains . " (Id. ) However, he "was . ignored about the treatment for a specialist." On February 18, Gore. (Id. at 8.) dizziness (Id. and 2014, (Id.) Harper had an appointment with Dr. Harper "explained to Dr. Gore the headaches, shortness of breathing (internal quotation marks omitted)) 7 [during] conversations." Harper suggested that Dr. Gore send Harper "to see a [and] {Id.} MRI done. 11 Dr. specialist to have a CAT scan Gore told Harper that "she felt Dr. that seeing a specialist was not necessary." "told Harper you are being monitored; complaint, Dr. Gore since you have written a you will be scheduled to see a specialist. 11 Gore also mentioned that Harper had been offered "Tylenol until further transferred to notice." Lawrenceville has not yet seen a Particularized Harper Correctional (Id.) specialist. damages from all Defendants. Harper's {Id.) was Center subsequently {"LVCC"} and Harper seeks monetary (Id. at 9-10.} Complaint raises the following claims for relief with respect to Nurse Jones, Nurse Hamlin, and Dr. Gore: Claim One: Nurse Jones (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment 6 by providing Harper the wrong medication on June 25, 2013. (Id. at 5.) 7 6 "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. 11 u. s. Const. amend. VIII. 7 Harper also asserts that Nurse Jones, Nurse Hamlin, and Dr. Gore violated his rights under the Fourteenth Amendment by demonstrating indifference to his medical needs. However, "when a prison official is accused of deliberate indifference to a serious risk of harm, that claim is properly considered under the Eighth Amendment." Lovings v. Johnson, No. Civ .A. 7:05CV000050, 2005 WL 2076535, at *l (W.D. Va. Aug. 25, 2005). Moreover, to the extent that Harper claims Nurse Jones, Nurse Hamlin, and Dr. Gore acted negligently, " [a] prison official's negligence does not violate the due process clause." Gordon v. Kidd, 971 F. 2d 1087, 1095 (4th Cir. 1992) (citing Davidson v. Cannon, 474 U.S. 344, 347 (1986)). Accordingly, the Court 8 Claim Two: Nurse Hamlin (a} acted negligently, (b) violated Harper's rights under the First 8 and Fourteenth 9 Amendments by "respond [ing] to Harper's informal complaint in an unprofessional manner," and (c) violated Harper's rights under the Eighth Amendment by failing "to take the proper precautions [for] treating Harper." (Id. at 6.) Claim Five: Dr. Gore (a) acted negligently and (b) violated Harper's rights under the Eighth Amendment by failing to ref er Harper to a specialist. (Id. at 8.) IV. A. SECTION 1983 CLAIMS Eighth Amendment Claims To state an Eighth Amendment claim, facts that (1) indicate that an inmate must allege objectively the deprivation suffered or harm inflicted "was 'sufficiently serious, ' that subjectively the prison officials 'sufficiently culpable state of mind.'" 145 F.3d 164, 167 (4th Cir. 1998) U.S. 294, medical 298 care, (1991)). "a acted Johnson v. and ( 2) with a Quinones, (quoting Wilson v. Seiter, 501 With respect to the denial of adequate prisoner must allege acts or omissions considers Harper's deliberate indifference claim with respect to Nurse Jones, Nurse Hamlin, and Dr. Gore under the Eighth Amendment only. 8 speech "Congress shall make no law . . . abridging the freedom of ,, U.S. Const. amend. I. 9 deprive any person of life, liberty, "No State shall . . " u. S. Const. or property, without due process of law . . amend. XIV, § l. 9 sufficiently harmful to /1 serious medical needs. (1976). evidence deliberate Estelle v. Gamble, indifference 429 U.S. 97, to 106 A medical need is "serious" if it "'has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention.' Cir. 2008) Iko v. /1 Shreve, 535 F.3d 225, 241 (4th (quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)). The subjective prong requires the plaintiff to allege facts that indicate indifference. a particular defendant See Farmer v. Brennan, "Deliberate indifference is a with 511 U.S. 825, deliberate 837 (1994). very high standard-a showing of mere negligence will not meet it. 692, 695 (4th Cir. 1999) acted /1 Grayson v. Peed, 195 F. 3d {citing Estelle v. Gamble, 429 U.S. 97, 105-06 (1976)). [A] prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Farmer, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial risk of harm is not enough. prison general official facts must and the also draw specific 10 the risk inference of harm between The those confronting the inmate." 837); Quinones, 145 F. 3d at 168 {citing Farmer, see (stating Rich v. Bruce, same). Thus, 129 to F.3d 336, survive a 338 u. S. 511 (4th Cir. motion to at 1997) dismiss, the deliberate indifference standard requires a plaintiff to assert facts sufficient to form an inference that "the official in question subjectively recognized a substantial risk of harm" and "that the official in question subjectively recognized that his actions were 'inappropriate in light of that risk.'" rel. Lee v. Cleveland, 372 F.3d 303 294, Parrish ex (4th Cir. 2004) {quoting Rich, 129 F.3d at 340 n.2). "To establish that constitute deliberate the treatment excessive as must 1990) Cir. health indifference be care to a so grossly provider's incompetent, 1986)). Miltier v. Beorn, (citing Rogers v. Absent Evans, exceptional 792 actions serious medical need, to shock the conscience or to be fundamental fairness." Cir. a inadequate, or intolerable to 896 F.2d 848, 851 {4th F.2d 1052, circumstances, 1058 an (11th inmate's disagreement with medical personnel with respect to a course of treatment is insufficient to state a claim, much less Wright v. cognizable constitutional to demonstrate deliberate Collins, 766 F.2d 841, 428 Gittlemacker v. Prasse, Furthermore, in evaluating a 849 F.2d indifference. {4th Cir. 1, prisoner's 6 ( 3d See 1985) (citing Cir. 1970)). complaint regarding medical care, the Court is mindful that "society does not expect 11 that prisoners will have unqualified access to health care" or to the medical treatment McMillian, 503 U.S. 103-04). 1, In this 9 of their (1992) regard, choosing. Hudson v. 429 U.S. at treatment is (citing Estelle, the right to medical limited to that treatment which is medically necessary and not to \\that which may be considered merely desirable." Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977). Here, Harper medication on has June alleged 25, 2013, Regional Medical Center." the emergency room, [he] 2014, he after was his "pulse [and] problems [and] allegations, sufficient chest the facts Eighth Amendment Henderson, 196 pains." with at Southside When he arrived at in February and April of (Id. concludes respect claim. to wrong showing signs of an overdose." lot of dizziness, Court F.3d "rushed the sugar w [ere] very low and Harper further alleges that, he "was having a taking (Part. Compl. 5.) had irregular heartbeats; (Id.) that to See at that the Iko, 846). headaches, Given 6.) Harper objective 535 F. 3d at Accordingly, breathing the has these alleged prong 241 of an (quoting Court will consider whether Harper has alleged sufficient facts as to each Defendant with respect to the subjective prong. 1. In Nurse Jones Claim inadequate One (b) , Harper medical care by contends "giving 12 [the} that Jones wrong provided prescription (Part. Compl. 5.) drugs" to him. Jones "that she ha [d] to take and replied, that According to Harper, he told given him it was not [the] his wrong prescription drugs Jones medication." "'Harper it's your meds take them,'" so Harper took the medication. (Id.) Approximately one week later, Nurse Hamlin informed Harper that "Nurse Jones did indeed give him the wrong ,, medication . Harper, indicating [Harper] (Id. at 6.) however, that Nurse "does not Jones intentionally the wrong medication," Amendment claim. allege any facts or as he must whatsoever recklessly gave to state an Eighth Baldwin v. Bell, No. 1:11CV180 (CMH/TRJ), 2012 WL 214915, at *3 (E.D. Va. Jan. 20, 2012}. Harper also fails to allege facts suggesting that Nurse Jones gave him the medication "with knowledge it would cause him harm. " 2002 WL 31180743, omitted). medication, at Moreover, [and] *2 (N.D. "[t] he Ill. fact was assured by Sept. that Crowley v. 30, 2002) [Harper] [Nurse Jones] . at most amounts to negligence." Id. Meyers, (citation questioned his that it was his (citations omitted) ; see Williams v. Snyder, No. Civ.A. 01-632-JJF, 2002 WL 32332192, at *2 (D. Del. Sept. 30, 2002) administering medication is negligence rather than a § error in providing the more (noting that appropriately 1983 action"} . wrong "[a] medication Here, to mistake in recoverable in Nurse Jones' s Harper "only constitutes negligence, or perhaps malpractice, neither of which 13 become a constitutional violation merely because prisoner." Baldwin, 2012 WL 214915, at *3 [Harper] is a {citations omitted) . Harper has failed to allege sufficient facts showing that Nurse Jones "subjectively recognized a Harper and "subjectively substantial recognized that at F.3d 303 {quoting Rich, [her] actions to were Parrish ex rel . Lee, 'inappropriate in light of that risk. ' " 372 risk of harm" 129 F.3d at 340 n.2). Accordingly, Claim One {b) will be dismissed. 2. In Nurse Hamlin Claim Two {c), Harper faults "tak [ing] the proper precautions [for] Compl. 6.) On April 4, Nurse for treating Harper." not (Part. 2014, Nurse Hamlin "told Harper that he was being monitored and prescribed Tylenol x Harper could purchase Tylenol (Id. Hamlin from the 14 days" and that commissary thereafter. (internal quotation marks omitted) . ) Harper alleges that he "explained to Nurse Hamlin that he needed more treatment and wanted to see a specialist." However, ignored about the treatment for a specialist." Harper fails to allege facts Hamlin knew of and disregarded a that at 837. "was having a . "was (Id.) indicate that Nurse substantial risk to Harper's health by not referring him to a specialist. U.S. he See Farmer, Although Harper indicates that in April 2014, lot of dizziness, and chest pains," {Part. 14 headaches, Compl. 6), 511 he breathing problems he fails to allege that he told Nurse Thus, symptoms. Hamlin Harper that fails he to was experiencing allege sufficient these facts to suggest that Nurse Hamlin was deliberately indifferent to his medical needs by failing to refer him to a specialist for those symptoms. 2006) See Self ("Matters medical Ledoux v. most, or respect to condition. 1232 (10th Cir. fall within the scope of such decisions as whether to consult a undertake the additional 961 F. 2d 1536, a medical 153 7 disagreement appropriate See Wright, 3. F.3d 1227, traditionally states 428 F.2d at 6). 439 are Davies, Harper Crum, that judgment specialist v. 766 course testing" (10th Cir. with of F.2d at 849 Nurse (citing 1992))) . Hamlin treatment At with for his (citing Gittlemacker, Accordingly, Claim Two (c) will be dismissed. Dr. Gore In Claim Five (b), Harper contends that Dr. Gore failed to refer him to a specialist to undergo a CAT scan and MRI, though she stated that she would do so. " [T] he question whether a [ CAT scan] techniques or forms of treatment is (Part. Compl. even at 8.) or additional diagnostic indicated example of a matter for medical judgment. is a classic A medical decision not to order a[ CAT scan], or like measures, does not represent cruel and unusual punishment." Estelle, 429 U.S. at 107. Here, Dr. Gore concluded that Harper's condition could be managed with 15 Tylenol and monitoring, and that Harper did not require a (Part. Compl. 8.) scan or an MRI, or referral to a specialist. Although Dr. that Harper Harper Gore saw fails a to failed to specialist allege follow before facts that CAT through with ensuring Harper suggest was Dr. transferred, Gore perceived that such a lapse posed a substantial risk to Harper's health. Parrish ex rel. Lee, 372 F.3d at 303 340 n.2). that he Rather, it appears that Dr. would be placate Harper. (quoting Rich, referred to a 129 F.3d at Gore likely told Harper specialist in an attempt to Because Harper fails to allege sufficient facts demonstrating that Dr. Gore was deliberately indifferent to his medical needs, Claim Five (b) will be dismissed. B. First and Fourteenth Amendment Claim In Claim Two rights under "respond [ing] unprofessional (b), the to First and Harper's manner." constitutional right Adams v. Rice, Harper alleges that Hamlin violated his Fourteenth informal (Part. Compl. to participate 40 F.3d 72, 75 Amendments complaint 6.) in "[T]here is by an no in grievance proceedings." {4th Cir. 1994) Alba, 932 F.2d 728, 729 (8th Cir. 1991)). (citing Flick v. Because Harper enjoys no constitutional right to participate in grievance proceedings, his allegation that Hamlin improperly responded to his informal complaint is legally Nos. 3:07CV-419-HEH, frivolous. 3:09CV14, See Banks 2009 WL 1209031, 16 at *3 v. Nagle, (E.D. Va. May 1, 2009} Moreover, (citation omitted). simply "[r] uling against a prisoner on an administrative complaint does not cause or contribute to the [constitutional] George v. violation." Smith, 507 F.3d 605, 609-10 (7th Cir. 2007}. Accordingly, Claim Two (b) will be dismissed. V. In Claims One (a), that Jones, Hamlin, his medical care. negligence, NEGLIGENCE CLAIMS Two (a}, and Five (a), Harper contends and Gore acted negligently with respect to (Part. however, Compl. does not dimension. See Deavers v. 692835, at *4 Brennan, 511 U.S. (E.D. Va. 825, 5-6, state a Diggins, Feb. 835, 836 18, 8.} An assertion of claim of constitutional No. 3:13-CV-821, 2015) (1994}; (citing 2015 WL Farmer Estelle v. Gamble, v. 429 U.S. 97, 105-06 (1976}). Jones, Hamlin, and Gore contend that Harper's claims for negligence are barred by the one-year statute of limitations set forth in section 8. 01-243. 2 of the Virginia Code. Mot. Dismiss 4-5, ECF No. 32.) (Mem. Supp. That section provides: No person confined in a state or local correctional facility shall bring or have brought on his behalf any personal action relating to the conditions of his confinement until all available administrative remedies are exhausted. Such action shall be brought by or on behalf of such person within one year after cause of action accrues or within six months after all administrative remedies are exhausted, whichever occurs later. 17 Va. Code Ann. 8.01-243.2 (West 2016) § filed this action on May 13, 2015, (emphasis added). Harper the date that he placed his Motion for Enlargement of Time in the prison mailing system. 10 See Houston v. Lack, 487 U.S. 266, 276 Harper's claims (1988). against Jones, Hamlin, and Gore accrued, at the latest, on June 25, 2013, April 3, 2014, and February 18, when these Defendants allegedly failed 2014, respectively, to provide appropriate medical care. Harper failed to file this action within one year of that date. However, the record does not establish, and these Defendants have exhaust all respect to not of his his addressed, whether available claims. determine whether Harper administrative Because filed Harper of this this, the even tried remedies Court to with cannot action within six months after he exhausted his available remedies. Because the Court cannot determine at this time whether Harper's negligence claims are barred by the limitations period set forth in section 8.01243. 2, the Motion to Dismiss will be denied with respect to Claims One {a), Two (a), and Five (a). 10 The Court opened this action upon receipt of Harper' s Motion for Extension of Time. By Memorandum Order entered on May 29, 2015, the Court directed Harper to submit a statement identifying the nature of the action. (ECF No. 3, at 1.) The Court received Harper's response on June 10, 2015. (ECF No. 4.) By Memorandum Order entered on July 20, 2015, the Court granted Harper's Motion for Extension of Time to the extent that the Clerk was directed to file Harper's June 10, 2015 submission as the Complaint in this matter. {ECF No. 7, at l.) 18 VI. For No. 31) One (b), the foregoing CONCLUSION reasons, the Motion will be granted in part and denied Two (b), Two {c), and Five (b) to Dismiss in part. will be (ECF Claims dismissed. Harper's claims against Quintana and Dugger will be dismissed without prejudice pursuant to Rule 4(m} of the Federal Rules of Civil Procedure. Any party wishing to file a motion for summary judgment must do so within sixty (60) days of the date of entry hereof. The Clerk is directed to send a copy of this Memorandum Opinion to Harper and counsel of record. 1s1 J2W Robert E. Payne Senior United States District Judge r; Date: 1'11 Richmond, Virginia/ 19
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