United States District Court, E.D. Virginia, Richmond Division
ERIC L. PROSHA, Plaintiff,
DAVID ROBINSON, et al, Defendants.
Hannah Lauck, United States District Judge
Prosha, a Virginia inmate proceeding pro se and
in forma pauperis, filed this civil rights action.
The matter is before the Court on Prosha's failure to
serve Defendants Wiggins and John/Jane Doe Kitchen Supervisor
within the time required by Federal Rule of Civil Procedure
to Federal Rule of Civil Procedure 4(m), Prosha had ninety
(90) to serve the defendants. Here, that period commenced on
April 24, 2017. By Memorandum Order entered on April 24,
2017, the Court attempted to serve the defendants pursuant to
an informal service agreement with the Attorney General's
Office for the Commonwealth of Virginia. On May 30, 2017, the
Attorney General's Office for the Commonwealth of
Virginia filed a Notice of Appearance on behalf of Defendants
Robinson, Parker, and Springs and informed Prosha that it
could not accept service for Defendants Wiggins and John/Jane
Doe Kitchen Supervisor. (ECF No. 27.)
Memorandum Order entered on September 15, 2017, the Court
directed Prosha to show good cause, within eleven (11) days
of the date of entry thereof, for his failure to serve
Defendant Wiggins within the time required by Rule 4(m). (ECF
No. 38.) By Memorandum Order entered on December 12, 2017,
the Court directed Prosha to show good cause, within eleven
(11) days of the date of entry thereof, for his failure to
serve Defendant John/Jane Doe Kitchen Supervisor. (ECF No.
42.) Prosha has responded. (ECF Nos. 39, 43.) Nevertheless,
for the reasons detailed below, Prosha has failed to
establish good cause for his failure to serve Defendants
Wiggins and John/Jane Doe Kitchen Supervisor within the
4(m) requires that, absent a showing of good cause, the Court
must dismiss without prejudice any complaint in which the
plaintiff fails to serve the defendant within the allotted
90-day period. Fed.R.Civ.P. 4(m). Courts within the Fourth
Circuit found good cause to extend the 90-day time period
when the plaintiff has made "reasonable, diligent
efforts to effect service on the defendant." Venable
v. Dep't of Corr., No. 3;O5cv82l, 2007 WL 5145334,
at *1 (E.D. Va. Feb. 7, 2007) (quoting Hammadv. Tate
Access Floors, Inc., 31 F.Supp.2d 524, 528 (D. Md.
1999)). Neither pro se status nor incarceration
constitutes good cause. Sewraz v. Long, No.
3.08CV100, 2012 WL 214085, at * 1-2 (E.D. Va. Jan. 24, 2012)
Prosha's Responses, he essentially argues that the action
should not be dismissed against Defendants Wiggins and
John/Jane Doe Kitchen Supervisor because these individuals
are liable for the deprivation of Prosha's constitutional
and statutory rights. (See, e.g., ECF No. 39, at
1-5.) However, Prosha has not provided an explanation of
diligent efforts he made to serve Defendants Wiggins and
John/Jane Doe Kitchen Supervisor. Furthermore, nothing
submitted by Prosha gives this Court any indication that
Defendants Wiggins and John/Jane Doe Kitchen Supervisor will
be properly served at any time in the future. Under such
circumstances, courts appropriately dismiss the action
against the unserved parties. See Sewraz, 2012 WL
214085, at *3 (citing Myers v. Schroder, No. 09-528
(RHK/JJK), 2010 WL 2777483, at *8 (D. Minn. June 4, 2010);
Greene v. Neven, No. 3.07-CV-00474-LRH-VPC, 2010 WL
1300903, at *2 (D. Nev. Feb. 10, 2010); Villeneuve v.
Connecticut, No. 09-13-P-S, 2009 WL 1783540, at *2 (D.
Me. June 22, 2009). Because Prosha fails to demonstrate good
cause for his failure to serve Defendants Wiggins and
John/Jane Doe Kitchen Supervisor, all claims against these
individuals will be DISMISSED WITHOUT PREJUDICE.
appropriate Order shall issue.
 Rule 4(m) provides:
If a defendant is not served within 90 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. This subdivision (m) does
not apply to service in a foreign country under Rule 4(f) or
Fed. R. Civ. P. 4(m).
The Court considers the Complaint
"filed" on the date it concludes statutory
screening under the Prison Litigation Reform Act. See
Ford v. Johnson, 362 F.3d 395, 398 (7th Cir.
 Counsel for Robinson, Parker, and
Springs stated that Defendant Wiggins no longer worked at the
institution and Prosha had not provided sufficient
information for counsel to identify John/Jane Doe ...