United States District Court, M.D. Georgia, Valdosta Division
HUGH LAWSON, Senior District Judge.
Before the Court is Defendant Bill Gray's Motion to Dismiss (Doc. 29), Amended Motion to Dismiss (Doc. 35), and Second Amended Motion to Dismiss. (Doc. 37). For the reasons discussed below, the Court denies Defendant's two amended motions. The Court grants in part and denies in part Defendant's initial Motion to Dismiss.
Plaintiff, a Chinese citizen, entered the United States via the Texas Border on August 19, 2013. The United States Border Patrol apprehended Plaintiff and charged her with inadmissibility under 8 U.S.C. § 1182(a)(6)(A)(i). Immigration officials then transferred Plaintiff to the Irwin County Detention Center in Ocilla, Georgia for detention pending removal proceedings. Plaintiff admitted the factual allegations asserted against her in a September 23, 2013 Notice to Appear. Plaintiff conceded the charge of removability and then sought asylum based on alleged religious persecution in China resulting from her membership in an underground Christian church. On November 21, 2013, an immigration judge denied Plaintiff's application for asylum and ordered her removed from the United States to China. Plaintiff filed a timely appeal to the Board of Immigration appeals on December 13, 2013. Her appeal was denied April 25, 2014. She subsequently filed a petition for review in the Eleventh Circuit Court of Appeals. Throughout the immigration proceedings, Plaintiff remained detained and refused to produce her Chinese passport, preventing immigration officials from effectuating her removal.
Plaintiff filed this civil rights action against the United States and various agents and officers of the United States in both their individual and official capacities. She also names as a defendant Bill Gray, Warden at the Irwin County Detention Center, where Plaintiff was held while awaiting removal. Plaintiff alleges Defendants collectively committed tortious acts in violation of her constitutional and statutory rights, namely by wrongfully and unreasonably detaining her for a prolonged period of time in violation of her due process rights.
Defendant moves to dismiss all claims raised against him in Plaintiff's Complaint on two grounds. First, Defendant argues that Plaintiff's Complaint should be dismissed for failure to effect service under Fed.R.Civ.P. 12(b)(5). Alternatively, Defendant moves under Fed.R.Civ.P. 12(b)(6) to dismiss this action for Plaintiff's failure to state any claim against Defendant.
A. Motion to Dismiss under Fed.R.Civ.P. 12(b)(5)
Federal Rule of Civil Procedure 4(m) provides,
If a defendant is not served within 120 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.
It is undisputed that Plaintiff failed to serve Defendant within the required time period. Plaintiff initiated this lawsuit on August 29, 2014. She did not effectuate service on Defendant until January 21, 2015, 25 days after the running of the 120 days mandated by Rule 4(m). Accordingly, the Court must determine whether Plaintiff has demonstrated good cause for the failure that would warrant the Court extending the time for service.
"Good cause exists only when some outside factor, such as reliance on faulty advice, rather than inadvertence or negligence, prevented service." Lepone-Dempsey v. Carroll Cnty. Comm'rs, 476 F.3d 1277, 1281 (11th Cir. 2007) (internal quotation omitted). Absent a showing of good cause, a district court may in its discretion extend the time for service. Id. (citing Horenkamp v. Van Winkle & Co., 402 F.3d 1129, 1132 (11th Cir. 2005)). The Advisory Committee Note to Rule 4(m) outlines a nonexhaustive list of circumstances which may warrant a discretionary extension of the service deadline, including where "the applicable statute of limitations would bar the refiled action, or if the defendant is evading service or conceals a defect in attempted service.'" Id. (quoting Fed.R.Civ.P. 4(m), Advisory Committee Note, 1993 Amendments); see also Horenkamp, 402 F.3d 1129 (affirming decision of district court to extend the time for service where the defendant had notice of the suit via a request for waiver of service and plaintiff subsequently properly served defendant).
Plaintiff has failed to demonstrate good cause. Plaintiff's first attempt at serving Defendant occurred on October 3, 2014, when Plaintiff sent a copy of the Complaint to the Irwin County Detention Center by certified mail. (Doc. 10). Plaintiff also provided a copy by certified mail to the Civil Process Clerk at the United States Attorney's Office for the Middle District of Georgia. After receiving notice from the United States Attorney's office that the documents received by that office did not contain the required summons form (Doc. 16), on October 14, 2014, Plaintiff again ...