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Danik v. Housing Authority of Baltimore, 09-2240 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 09-2240 Visitors: 58
Filed: Sep. 15, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-2240 GAIL HEMPHILL DANIK, Plaintiff - Appellant, v. HOUSING AUTHORITY OF BALTIMORE CITY; PAUL GRAZIANO, Housing Director; SHEILA DIXON, Mayor of Baltimore City; MARTIN O’MALLEY, Governor, Defendants - Appellees. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (1:08-cv-03036-JFM) Submitted: August 25, 2010 Decided: September 15, 2010 Before SHEDD, DU
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 09-2240


GAIL HEMPHILL DANIK,

                Plaintiff - Appellant,

          v.

HOUSING AUTHORITY OF BALTIMORE CITY; PAUL GRAZIANO, Housing
Director; SHEILA DIXON, Mayor of Baltimore City; MARTIN
O’MALLEY, Governor,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.     J. Frederick Motz, District Judge.
(1:08-cv-03036-JFM)

Submitted:   August 25, 2010             Decided:   September 15, 2010


Before SHEDD, DUNCAN, and DAVIS, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Gail Hemphill Danik, Appellant Pro Se. Carrie Blackburn Riley,
Baltimore, Maryland; Gary Gilkey, Assistant Solicitor, BALTIMORE
CITY DEPARTMENT OF LAW, Baltimore, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Gail      Danik   appeals       the    district    court’s     order

dismissing her complaint, filed under Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e to 2000e-17

(2006), for failure to effect sufficient service of process and

for failure to state a claim on which relief can be granted.

Fed. R. Civ. P. 12(b)(5), (6).             On appeal, she challenges only

the district court’s dismissal of Defendant Graziano.

           We review for abuse of discretion a district court’s

grant of a motion to dismiss for insufficient service of process

under Fed. R. Civ. P. 12(b)(5).             Dickerson v. Napolitano, 
604 F.3d 732
, 740 (2d Cir. 2010); Shao v. Link Cargo (Taiwan) Ltd.,

986 F.2d 700
, 708 (4th Cir. 1993).                  A plaintiff may defend

against   a   Rule    12(b)(5)   motion      to    dismiss   by   establishing

adequate service.        
Dickerson, 604 F.3d at 752
.               The federal

rules   require   that   a   defendant     be     served   with   the   complete

pleading and a copy of the summons.             Fed. R. Civ. P. 4(c).

           Federal Rule of Civil Procedure 10(c) provides that a

“copy of a written instrument that is an exhibit to a pleading

is a part of the pleading for all purposes.”                  See Horsley v.

Feldt, 
304 F.3d 1125
, 1134 (11th Cir. 2002) (“It would seem to

follow [from Rule 10(c)] that if an attachment to an answer is a

‘written instrument,’ it is part of the pleadings.”); Cortec

                                       2
Indus., Inc. v. Sum Holding L.P., 
949 F.2d 42
, 47 (2d Cir. 1991)

(“Relying on Rule 10(c), we have held that the complaint is

deemed to include any written instrument attached to it as an

exhibit or any statements or documents incorporated in it by

reference.”).        Here, in addition to her substantive complaint,

all exhibits Danik attached when she filed her complaint are

part of that pleading.              Thus, Danik’s complaint included her

recitation of her cause of action, along with appended material

she    filed     with     and     received       from   the   Equal    Employment

Opportunity Commission (“EEOC”).

            In   a   case   in     which   the    district    court   permits     the

plaintiff to file in forma pauperis, the district court must

direct the United States Marshals Service to effectuate service

of    process.       28   U.S.C.    §   1915(d)     (2006);   Fed.    R.   Civ.   P.

4(c)(3).       See Robinson v. Clipse, 
602 F.3d 605
, 608 (4th Cir.

2010) (“In forma pauperis plaintiffs must rely on the district

court and the U.S. Marshals Service to effect service of process

according to 28 U.S.C. § 1915.”).                 However, the plaintiff must

provide sufficient information to identify the defendant with

“reasonable effort.”            Richardson v. Johnson, 
598 F.3d 734
, 738-

40 (11th Cir. 2010); Graham v. Satkoski, 
51 F.3d 710
, 713 (7th

Cir. 1995).



                                           3
              Here,     the     record    indicates         that   the   address     Danik

initially       provided      was     insufficient     to     effectuate     service      on

Graziano because “the addressee was not known” at the specified

address.        Before the district court, Danik did not provide any

explanation for this error.                  Nevertheless, out of an abundance

of caution, the district court granted Danik an extension of

time in which to effectuate service of process on Graziano.

              Despite this extension, Danik still failed to effect

sufficient service of process because she provided an incomplete

packet to the Marshals for service on Graziano, including only

the complaint, without the appended materials or summons.                                 In

her informal brief, Danik does not contest this vital omission.

Thus,    we     conclude       that    the    district      court    did    not    err    in

dismissing Danik’s cause of action, pursuant to Fed. R. Civ. P.

12(b)(5).

              We also find that the district court gave appropriate

consideration to Danik’s pro se status.                      Further, the court did

not     abuse     its    discretion          in    denying     Danik’s      motion       for

appointment of counsel under 28 U.S.C. § 1915(e)(l) (2006).                              See

Miller v. Simmons, 
814 F.2d 962
, 966 (4th Cir. 1987).

              Accordingly, we affirm the district court order.                           We

dispense      with      oral     argument         because    the    facts    and     legal



                                              4
contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED




                                5

Source:  CourtListener

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