Corey Coles v. Ralph Northcutt and Spouse

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-6006
COREY COLES,
Plaintiff - Appellant,
v.
RALPH NORTHCUTT ET AL., AND SPOUSE, Supervisor/Teacher;
HAROLD CLARKE AND SPOUSE, Director of Virginia Department of
Corrections; G. ROBINSON AND SPOUSE, Manager Ombudsman
Service Unit; LOUIS B. CEI, PH. D. AND SPOUSE, Special
Programs Manager; MS. C. BOONE AND SPOUSE, Institutional
Ombudsman at Sussex II State Prison; A. WOODS AND SPOUSE,
Eastern Regional Ombudsman; MASSENBURG AND SPOUSE,
Institutional Ombudsman at Sussex II State Prison; J. TAYLOR
AND SPOUSE, O.S.S. - Complaint Officer; MS. MURPHY AND
SPOUSE, Head Counselor/Treatment (T.P.S.)/Head Case Manager;
MR. MOORE AND SPOUSE, Institutional Chaplain; LISA HICKS-
THOMAS AND SPOUSE, Secretary of Administration of Virginia;
CITY/COUNTY OF WAVERLY, Governing Party/Jurisdicition;
UNITED STATES OF AMERICA, Governing Party/Jurisdiction;
VIRGINIA DEPARTMENT OF CORRECTIONS, Governing Body of
Laws/Jurisdiction; STATE OF VIRGINIA, Governing
Party/Jurisdiction; GENE JOHNSON AND SPOUSE, Director of
Virginia Department of Corrections; LARRY TAYLOR AND SPOUSE;
A. DAVID ROBINSON AND SPOUSE, Eastern Regional Director;
DAVID B. EVERETT AND SPOUSE, Warden of Sussex II State
Prison/Regional Operations Chief; THOMAS QUIGLEY AND SPOUSE,
Assistant Chief Special Investigations Unit; CHRISTOPHER S.
COLVILLE ED. D. AND SPOUSE, Assistant Superintendent of
Adult Operations Department of Correctional Education; JOHN
JABE AND SPOUSE, Deputy Director of the Virginia Department
of Corrections; JANET POLAREK AND SPOUSE, Secretary for the
Commonwealth of Virginia; ROBERT MCDONNELL AND SPOUSE,
Governor of Virginia; WENDY S. HOBBS AND SPOUSE,
S.S.G./Regional Administrator/Ombudsman Service Unit; BRYAN
PHILLIPS AND SPOUSE, Principal at Sussex II State Prison
D.C.E.; R. WOODSON AND SPOUSE, Regional Ombudsman, Eastern
Region; WALLACE BRITTLE, JR. AND SPOUSE, Institutional
Attorney; ROBIN HALBERT AND SPOUSE, Clinical Director of
the Virginia Department of Corrections; MARIA VARGO AND
SPOUSE, Warden/Assistant warden; PUGH AND SPOUSE, Unit
Manager; J. EVERETT AND SPOUSE, Administrative Assistant; R.
WILLIAMS AND SPOUSE, Unit manager of Unit 10 (Segregation,
Special Housing Unit, Etc.); K. WHITEHEAD AND SPOUSE,
Regional Administrator; V. M. WASHINGTON AND SPOUSE,
Warden/Superintendent; K. TURNER AND SPOUSE, Property
Officer/Correctional Officer; JACOBS AND SPOUSE, Unit
Manager; HONORABLE STEPHEN D. BLOOM AND SPOUSE, Judge; TAMMY
SHEFFIELD AND SPOUSE, Deputy Clerk, Sussex Combined Court;
VIRGINIA DEPARTMENT OF CORRECTIONAL EDUCATION, Governing
body over the Virginia Department of Correctional Education;
YOUNG, Officer/Sergeant/Investigator,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Robert G. Doumar, Senior
District Judge. (2:12-cv-00630-RGD-LRL)
Submitted: May 27, 2014 Decided: June 3, 2014
Before GREGORY and DUNCAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Dismissed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Corey Coles, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Corey Coles, a Virginia state prisoner, appeals the
dismissal without prejudice of his 42 U.S.C. § 1983 (2006)
action for failing to comply with the district court’s order
that he provide sufficient copies of his complaint for service
on the numerous defendants. Coles also challenges the denial of
his motions to appoint counsel. We vacate in part, dismiss in
part, and remand for further proceedings.
Under Fed. R. Civ. P. 41(b), a district court may
dismiss a complaint if a plaintiff fails to comply with a court
order, and such dismissals are reviewed for an abuse of
discretion. See Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.
1989) (setting forth factors courts entertaining dismissal
should consider); see also Larson v. Scott, 157 F.3d 1030, 1031
(5th Cir. 1998). Although generally, a district court does not
abuse its discretion in dismissing an action when a party fails
to comply with a reasonable court order after being warned of
the consequences of neglecting the court’s direction, see id. at
95-96, we conclude that the district court acted too quickly.
See id. at 95 (noting that “propriety of a dismissal . . .
depends on the particular circumstances of the case”).
First, a prisoner proceeding pro se and in forma
pauperis, like Coles, is entitled to rely on the U.S. Marshals
Service to prepare and effect service of process on his behalf.
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See Fed. R. Civ. P. 4; Walker v. Schult, 717 F.3d 119, 123 n.6
(2d Cir. 2013). This includes providing copies of the
complaint. See Holly v. Anderson, 467 F.3d 1120, 1122 (8th Cir.
2006). Additionally, Coles requested that the district court
serve the Defendants, and he still had considerable time to
perfect service when the district court entered its dismissal
order. See Robinson v. Clipse, 602 F.3d 605, 608-09 (4th Cir.
2010). Accordingly, the dismissal cut substantially short
Coles’ 120-day period to serve process, either on his own or
with the district court’s and U.S. Marshals Service’s
assistance. Fed. R. Civ. P. 4(m); see Meilleur v. Strong, 682
F.3d 56, 63 (2d Cir. 2012).
Accordingly, we conclude that the district court
failed to afford Coles sufficient assistance and time to serve
his complaint. Therefore, we vacate the order of dismissal and
remand for proceedings consistent with this opinion. We dismiss
as moot the portion of Coles’ appeal challenging the denial of
his motions to appoint counsel, and we deny Coles’ motions in
this court requesting the appointment of counsel and transcripts
at Government expense. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
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materials before this court and argument would not aid the
decisional process.
DISMISSED IN PART,
VACATED IN PART,
AND REMANDED
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