Free Memorandum and Order - District Court of Delaware - Delaware

Case 1:07—cv—00239-JJF Document 76 Filed 05/14/2008 Page1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICHARD E. CLARK, JR., :
Plaintiff, E
v. E C.A. No. 07-239 JJF
WARDEN RAPHAEL WILLIAMS, ; Jury Trial Requested
et al., :
Defendants. E
MEMORANDUM ORDER
Pending before the Court is Defendant Dr. Binnon’s Motion to
Dismiss Pursuant to Rule 4(m)(D.I. 57). For the reasons
discussed, the Court will deny Defendant Dr. Binnon’s motion.
I. BACKGROUND
On May 2, 2007, Plaintiff Richard E. Clark, Jr., (“Mr.
Clark") an inmate at the Howard R. Young Correctional Institution
(“HRYCI”), filed this civil rights action pursuant to 42 U.S.C. §
1983. (D.I. 2.) He appears pro se and was granted in forma
pauperis status pursuant to 28 U.S.C. § l9l5. (D.I. 4.) The
gravamen of Mr. Clark’s action is that Defendants violated his
Eighth Amendment rights by housing him in a cell with an inmate
infected with HIV and Hepatitis B, and by failing to provide him
with medical treatment after he contracted Hepatitis B.
Mr. Clark initially named Warden Raphael Williams,
Lieutenant Sheets and Dr. Smith, all HRYCI employees, as
defendants. On June 25, 2007, Mr. Clark filed an Amended
Complaint, which added Dr. McDonald and Jim Welch as defendants.

Case 1:07—cv—00239-JJF Document 76 Filed 05/14/2008 Page 2 of 3
(D.1. 8.) On July 31, 2007, Mr. Clark filed a Second Amended
Complaint, which added Dr. Peter Binnon as a defendant. (D.I.
11.) On November 19, 2007, the Clerk of the Court forwarded a
USM 285 to the U.S. Marshall for service upon Dr. Binnon. (D.1.
56.) Neither the Clerk of the Court nor Mr. Clark have received
a Return of Service regarding Dr. Binnon. (Id.; D.I. 60.)
II. DISCUSSION
Federal Rule of Civil Procedure 4(m) provides for dismissal
of an action against a defendant if that defendant “is not served
within 120 days after the complaint is filed." However, where
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).
As he has not been served, Dr. Binnon contends that Mr.
Williams claims against him should be dismissed. As Dr. Binnon
is aware, Mr. Clark proceeds in forma pauperis and, therefore,
must rely upon the court to issue a service order and the United
States Marshal Service to effect proper service of the summons
and complaint. See 28 U.S C. § 1915(d) (stating that where a
plaintiff is proceeding in forma pauperis, “the officers of the
court shall issue and serve all process, and perform all duties
in such cases"). Mr. Clark had nothing to do with any delay in
service. Indeed, he timely complied with all court orders and
deadlines. Dismissal for failure to timely serve is thus not
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Case 1:07—cv—00239-JJF Document 76 Filed 05/14/2008 Page 3 of 3
proper. Accordingly, the court will extend the time for service
and deny Defendant Dr. Binnon’s Motion to Dismiss on the basis of
untimely service.
III. Conclusion
Accordingly, for the reasons discussed above, the Court will
deny Defendant Dr. Binnon’s motion.
NOW THEREFORE, IT IS HEREBY ORDERED that Defendant Dr.
Binnon’s Motion to Dismiss Pursuant to Rule 4(m)(D.I. 57) is
DENIED.
May Il , 2008 j
ED ES DISTRICT UDGE
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