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Grantham v. United States

United States District Court, S.D. Georgia, Waycross Division

February 21, 2017

DENNIS RAY GRANTHAM, Plaintiff,
v.
UNITED STATES OF AMERICA, et. al, Defendants.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          R. STAN BAKER, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Defendants Department of Veterans Affairs and Unite States of America's Motions to Dismiss. (Docs 16, 18.) For the reasons which follow, RECOMMEND that the Court DISMISS all claims against Defendant Department of Veteran Affairs pursuant to Plaintiff's Notice of Dismissal and DISMISS as moot this Defendant' Motion to Dismiss, (doc. 16). The Court should GRANT Defendant United States of America' Motion to Dismiss, (doc. 18). I further RECOMMEND that the Court DISMISS Plaintiff' Complaint, without prejudice, CLOSE this case, and DENY Plaintiff in forma pauperis statu on appeal.

         BACKGROUND

         Plaintiff filed this action against the United States Department of Veterans Affairs an the United States of America contesting his provision of healthcare by the United State Department of Veterans Affairs. (Docs. 1, 4.) Plaintiff contends he has been diagnosed wit bleeding, cancerous tumors, and Defendants have failed to provide him medical care. (Doc. 4 p. 5.) Plaintiff filed his Amended Complaint on August 2, 2016, and then moved this Court t instruct the United States Marshals Service to serve his summonses on all Defendants. (Doc. 6.) The Court denied Plaintiff's motion on September 20, 2016, (doc. 8). Plaintiff then filed a Motion for Extension of Time to Serve Summons on October 25, 2016, (doc. 10), which the Court granted on November 21, 2016, (doc. 11). Accordingly, Plaintiff had until December 21, 2016, to timely serve the summonses, (doc. 11). While Plaintiff timely served a Complaint and summons on Christopher Blasy, Chief of Staff at the Carl Vinson VA Hospital in Dublin, Georgia, and Latesha Ferrette-Holt at the VA Clinic in Brunswick, Georgia, (docs. 12, 13), he failed to deliver a copy of the summons to the United States Attorney's Office in the Southern District of Georgia or to serve any documentation on the Attorney General of the United States in Washington, D.C.

         On December 21, 2016, Plaintiff filed a Notice in which he requested that the Court “[d]ismiss Defendant #3 U.S. Dep[artment] of Veteran[ ] Affair[s].”[1] (Doc. 14, p. 1.) Following Plaintiff's Notice, Defendant Department of Veterans Affairs filed a Motion to Dismiss for lack of subject matter jurisdiction and for failure to state a claim upon which relief may be granted. (Doc. 16.) Defendant United States of America also filed a Motion to Dismiss based upon insufficiency of process. (Doc. 18.) In Response to Defendants' Motions, Plaintiff admits that he did not properly serve Defendants but attributes that failure to bureaucratic delays, his mental and physical disabilities, and his lack of financial resources. (Doc. 19, p. 2; Doc. 21, p. 2.)

         DISCUSSION

         I. Plaintiff's Notice of Voluntary Dismissal

         In his December 21, 2016, Notice for Filing Documents of Cost, which the Court construes as a Notice of Voluntary Dismissal, [2] Plaintiff requests that the Court dismiss Defendant Department of Veterans Affairs from this action “[t]o move this case along without further delay.” (Doc. 14, p. 1.) Within that Notice, Plaintiff informed the Court that he was aware that he had failed to properly serve Defendant Department of Veterans Affairs by the extended deadline granted by the Court. Defendant Department of Veterans Affairs then filed a Motion to Dismiss. (Doc. 16.)

         Under Federal Rule of Civil Procedure 41(a)(1)(A), a “plaintiff may dismiss an action without a court order by filing . . . a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment.” Plaintiff filed his Notice requesting dismissal of Defendant Department of Veterans Affairs on December 21, 2016, prior to the filing of Defendant's Motion to Dismiss on January 13, 2017, and prior to the filing of any Answer. Accordingly, and because Defendant has not objected to Plaintiff's Notice or otherwise filed any counterclaim that might impede Plaintiff's ability to dismiss certain claims voluntarily, the Court should GRANT Plaintiff's request for voluntary dismissal and DISMISS without prejudice all claims against Defendant Department of Veterans Affairs. Consequently, the Court should DISMISS as moot Defendant Department of Veterans Affairs Motion to Dismiss, (doc. 16).

         II. Defendant United States of America's Motion to Dismiss

         Defendant United States of America also filed a Motion to Dismiss Plaintiff's Complaint on January 13, 2017. Within its Motion, Defendant argues that the Court must dismiss Plaintiff's Complaint, without prejudice, because Plaintiff failed to properly serve a copy of the Complaint and summons upon Defendant, as required by Federal Rule of Civil Procedure 4(i)(1). Plaintiff does not dispute that he failed to properly serve Defendant, but contends that his mistakes are attributable to physical and mental disabilities and his inability to hire an attorney to represent him in this case. (Doc. 21, p. 2.)

         In its analysis of Defendant's Motion to Dismiss, the Court will abide by the longstanding principle that the pleadings of unrepresented parties are held to a less stringent standard than those drafted by attorneys and, therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff's unrepresented status will not excuse mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel.”).

         Under the Federal Rules of Civil Procedure, to serve the United States, a party must:

(A)(i) deliver a copy of the summons and of the complaint to the United States attorney for the district in which the action is brought-or to an assistant United States attorney or clerical employee whom the United States ...

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