Opinion
Case No: 2:16-cv-694-FtM-38CM
10-30-2018
JAMES DARYL WEST, Plaintiff, v. 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.
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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). 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.
/s/ _________
SHERI POLSTER CHAPPELL
UNITED STATES DISTRICT JUDGE FTMP-1
Copies: All Parties of Record