Robertson v. Dameron

• Decision Date: 31 March 2023
• Docket Number: Civil Action 7:22-cv-00086
• Parties: JAMES CALVIN ROBERTSON Plaintiff, v. R.N. D. DAMERON et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

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JAMES CALVIN ROBERTSONPlaintiff, v. R.N. D. DAMERON et al., Defendants.

Civil Action No. 7:22-cv-00086

United States District Court, W.D. Virginia, Roanoke Division

March 31, 2023

MEMORANDUM OPINION & ORDER

Joel C. Hoppe U.S. Magistrate Judge.

James Calvin Robertson, a Virginia inmate appearing pro se, filed this action under 42 U.S.C. § 1983, alleging that two medical providers at Augusta Correctional Center violated his Eighth Amendment right against cruel and unusual punishment by not properly caring for Robertson's injured jawbone.SeeCompl. 2, ECF No. 1.^[1]DefendantsDerinda Dameron R.N., and Kyle Smith, M.D., moved to dismiss the action under Rules 4(m)and12(b)(5) of the Federal Rules of Civil Procedure because Robertson served each of them with a summons, but not a copy of his complaint, before his service deadline expired on June 1, 2022.ECF No. 11;see Defs.'Br. in Supp., ECF No. 12.In response, Robertson asked the Court to extend his Rule 4(m) deadline and give him another opportunity to properly serve his complaint on Defendants.SeeECF No. 14.Defendants oppose that request.ECF No. 18.

I.The Legal Framework

Rule 4 governs service of process in federal district courts.“On or after filing the complaint, the plaintiff may present a summons to the clerk for signature or seal.If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant.”Fed.R.Civ.P. 4(b);seeFed.R.Civ.P. 4(a)(1)(A)-(G)(listing a summons's required contents).“A summons must be served with a copy of the complaint.The plaintiff is responsible for having the summons and complaint served [on each named defendant] within the time allowed by Rule 4(m),”^[2]Fed.R.Civ.P. 4(c)(1), and in the manner required by Rule 4(e)-(j), as applicable.See generallyMurphy Bros. Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344, 350-51(1999)(“In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as a defendant.Accordingly, one becomes a [defendant] officially, and is required to take action in that capacity only upon service of a summons or other authority-asserting measure stating the time which the party served must appear and defend.”(citations omitted)).

“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);see generallyGelin v. Shuman, 35 F.4th 212, 220(4th Cir.2022)(“[W]e hold that under Rule 4(m), a district court possesses discretion to grant the plaintiff an extension of time to serve a defendant with the complaint and summons even absent a showing of good cause by the plaintiff for failing to serve the defendant during the 90-day period provided by the Rule.And if the plaintiff is able to show good cause for the failure, then the courtmust grant the extension.”).Rule 12(b)(5) authorizes motions to dismiss the action against a named defendant because plaintiff's “service of process”-i.e., the mode of delivery or lack of delivery-on that defendant was “insufficient,”Fed.R.Civ.P. 12(b)(5), under Rule 4.SeeSmith v McCarthy,Civ. No. ELH-20-419, 2021 WL 4034193, at *27-28(D. Md.Sept. 3, 2021);Brown-Thomas v. Hynie, 367 F.Supp.3d 452, 460-61(D.S.C.2019).

“Where a defendant raises a Rule 12(b)(5) challenge to sufficiency of service, the plaintiff bears the burden to establish that service of process conformed with Federal Rule of Civil Procedure 4.”Rice v. Alpha Sec., Inc., 940 F.Supp.2d 321, 325(E.D. Va.2013), vacated on other grounds, 556 Fed.Appx. 257, 261-62(4th Cir.2014).“[T]he real purpose of service of process is to give notice to the defendant[s],”Karlsson v. Rabinowitz, 318 F.2d 666, 669(4th Cir.1963), that the plaintiff has sued them and that they“must appear and defend” against the action within a specified time, seeMurphy Bros., 526 U.S. at 351.Thus, “[t]o the extent that there is any rule or guide to be followed by the federal courts in such a case it is that where actual notice of the commencement of the action and the duty to defend has been received by the one served, the provisions of Rule 4[] should be liberally construed to effectuate service,”Karlsson, 318 F.2d at 668, so “mere technicalities [will] not stand in the way of consideration of a case on its merits,”Scott v. Md. St. Dep't of Labor, 673 Fed.Appx. 299, 304(4th Cir.2016)(quotingTorres v. Oakland Scavenger Co., 487 U.S. 312, 316-17(1988)(other quotation marks omitted)).“‘Actual notice,' however, is not the controlling standard,”Scott, 673 Fed.Appx. at 304(citingMining Energy, Inc. v. Dir., Office of Workers' Comp. Programs, 391 F.3d 571, 576(4th Cir.2004)), and Rule 4's “plain requirements for the means of effective service of process may not be ignored,”Armco, Inc. v. Penrod-Stauffer Bldg. Sys, Inc., 733 F.2d 1087, 1089(4th Cir.1984).Ultimately, “[t]he propriety of dismissal under Rule 12(b)(5) is left to the sound and broad discretion of the court.”Walker v. Prince George's Cnty., No. TDC-15-2274, 2016 WL 1572866, at *2(D. Md.Apr. 18, 2016)(citingUmbenhauer v. Woog, 969 F.2d 25, 30(3d Cir.1992));accordScott, 673 Fed.Appx. at 304(“We review a district court's decision for abuse of discretion where, as here, it dismisses a [complaint] for improper service of process under Rule 12(b)(5).”).

II.Background & Procedural History

Robertson initiated this § 1983 damages action in February 2022.His two-page complaint, ECF No. 1, was conditionally filed on February 14, 2022.ECF No. 2;see28 U.S.C. § 1915A(a).On March 3, 2022, the filing fee was paid and the oral order of service was entered, ECF No. 5, meaning that Robertson's Rule 4(m) deadline ran from this date.Cf.Robinson v. Clipse, 602 F.3d 605, 608-09(4th Cir.2022)(prisoner-plaintiffsRule 4(m) deadline ran from the date on which the court authorized service of process under 28 U.S.C. § 1915).A staff note entered the same date indicates that the Clerk's Office mailed Robertson “Information Regarding Service of Process,” which provided detailed instructions on how to serve an individual defendant under Rule 4, as well as blank summons forms.See Staff Note of Mar. 3, 2022.The instructions made clear that Robertson needed to serve both a “summons and complaint” on each named Defendant within 90 days of March 3, 2022.Seeid.(emphasis omitted).They also explained how he could obtain the necessary copies of his complaint.Id.Robertson returned proposed summonses directed to “Nurse Dameron” and to “Dr. K. Smith,” both of whom could be served at Augusta Correctional Center (“Augusta”) in Craigsville, Virginia.ECF No. 6.The Clerk's Office issued these summonses on April 12, 2022.Id.^[3]There is no indication that Robertson requested copies of his complaint.See Staff Note of Mar. 3, 2022;Admin. P. for Filing, Signing & Verifying Pleadings & Papers by Elec. Means§ D(3)(pro se litigation)(W.D. Va. 2020).

Robertson's deadline to serve each named Defendant was June 1, 2022.On May 3, the Clerk's Office entered a staff note indicating that Robertson's mother had “called several times” to report that Robertson “mailed her service paperwork so she could serve,” but the “[p]leadings have not arrived.”Staff Note of May 3, 2022.The Clerk agreed to send her copies of the “Summons[es] Issued [and] Complaints,” but cautioned that the Court had “no control over the USPS” once these documents were in the mail.Seeid.Nothing indicates that the Clerk mailed the summonses separately from the copies of Robertson's complaint.Seeid.

The Augusta County Sherriff's Office(“ACSO”) received both summonses on May 26, 2022.SeeECF No. 20, at 2, 6.Each named Defendant concedes that they“received” their respective summons on May 26, 2022, although neither individual explains how they obtained them or from whom.See Defs.'Br. in Supp. 1(“On May 26, 2022, Kyle Smith MD and Derinda Dameron(Lokey), RN received a summons only.”(citingDefs.' Ex. A, ECFNo. 12-1)).On June 15, 2022, the named Defendants, appearing through counsel, moved to dismiss the action under Rule 12(b)(5).They argued that Roberson failed to properly serve them within the time allowed by Rule 4(m) because the summonses were not served with a copy of the complaint, as Rule 4(c)(1) expressly requires.Seeid. at 2-3.Neither individual challenged the mode or method of delivery under Rule 4(e).See generallyid.

On July 5, Robertson filed a response explaining why he thought Defendants did not get a copy of his complaint with their summonses.Pl.'s Resp. in Opp'n 1, ECF No. 14.Because Robertson is incarcerated, he had been relying on his mother, Linda Robertson, to handle “much of the clerical duties” in his case, including “copy[ing] all materials, then forward[ing] them to the necessary parties.”Id.“Due to a need to reissue the documents for the summons, the claims were sent to Mrs. Robertson separately.Apparently, she never received the claims [(complaint)] copies meant for the defendants.Upon receiving the signed and stamped summons[es], she was under the impression that she had all the documentation necessary for the process server, and forwarded everything to the Augusta County Sheriff's Department.”Id. at 1-2.From Robertson's perspective, it was “clear that the copies of the claims [(complaint)] meant for the Defendants were lost in the mail.”Id.Appearing to recognize...