United States District Court, E.D. Virginia, Richmond Division
HERMAN L. BLACK, Plaintiff,
PHIL GRIMES, et al, Defendants.
Hannah Lauck, United Stares District Judge.
a Virginia prisoner proceeding pro se filed this
action. The matter is before the Court on Plaintiffs failure
to serve Defendant Miller within the time required by Federal
Rule of Civil Procedure 4(m). 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).
to Federal Rule of Civil Procedure 4(m), Plaintiff had 90
days from the filing of the Complaint to serve the
defendants. Here, that period commenced on October 13, 2017.
(ECF No. 16.) More than 90 days have elapsed and Plaintiff
has not served Defendant Jason Miller. By Memorandum
Order entered on May 24, 2018, the Court directed Plaintiff,
within eleven (11) days of the date of entry thereof, to show
good cause for his failure to serve Defendant Miller within
the time required by Rule 4(m). (ECF No. 28.)
has responded. ("Response, " ECF No. 29.) Instead
of demonstrating good cause for his failure to serve
Defendant Miller, Plaintiff states the following:
At the time I filed this Complaint, Jason Miller was employed
at the Rappahannock Regional Jail. At some point in early
2017 c/o Jason Miller committed ... [a] crime against another
inmate . . . and was fired, and he was charged with that
crime, and he himself was locked up... . I do not know where
he is locked up at
(Id. at 1 (capitalization, spelling, and punctuation
corrected).) Plaintiff indicates that he "do[es] not
have any way of finding out where Officer Jason Miller [is]
locked up at." (Id. at 2.)
courts within the Fourth Circuit have found good cause to
extend the ninety-day time period when the plaintiff has made
"reasonable, diligent efforts to effect service on the
defendant." Venable v. Dep't of Corr., No.
3:05cv821, 2007 WL 5145334, at *1 (E.D. Va. Feb. 7, 2007)
(quoting Hammad v. Tate Access Floors, Inc., 31
F.Supp.2d 524, 528 (D. Md. 1999)). Leniency is especially
appropriate when factors beyond the plaintiffs control
frustrate his or her diligent efforts. See McCollum v.
GENCO Infrastructure Sols., No. 3:10CV210, 2010 WL
5100495, at *2 (E.D. Va. Dec. 7, 2010) (citing T&S
Rentals v. United States, 164 F.R.D. 422, 425 (N.D.
W.Va. 1996)). Thus, courts are more inclined to find good
cause where extenuating factors exist such as active evasion
of service by a defendant, T & S Rentals, 164
F.R.D. At 425 (citing Prather v. Raymond Constr.
Co., 570 F.Supp. 278, 282 (N.D.Ga. 1982)), or stayed
proceedings that delay the issuance of a summons.
McCollum, 2010 WL 5100495, at *2 (citing
Robinson v. Fountainhead Title Grp. Corp., 447
F.Supp.2d 478, 485 (D. Md. 2006)). However,
'"[i]nadvertence, neglect, misunderstanding,
ignorance of the rule or its burden, or half-hearted attempts
at service' generally are insufficient to show good
cause." Venable, 2007 WL 5145334, at *1
(quoting Vincent v. Reynolds Mem'l
Hosp., 141 F.R.D. 436, 437 (N.D. W.Va. 1992)). While
a court might take a plaintiff s pro se status into
consideration when coming to a conclusion on good cause,
Lane v. Lucent Techs., Inc., 388 F.Supp.2d 590, 597
(M.D. N.C. 2005), neither pro se status nor
incarceration alone constitute good cause. Sewraz v.
Long, No. 3:08CV100, 2012 WL 214085, at *2 (E.D. Va.
Jan. 24, 2012) (citations omitted).
not the Court, nor the United States Marshals Service, is
responsible for providing the appropriate addresses for
serving a Defendant. See Lee v. Armontrout, 991 F.2d
487, 489 (8th Cir. 1993) (holding that prisoners proceeding
in forma pauperis retain responsibility for
providing address at which service can be effectuated);
see also Geter v. Horning Bros. Mgmt., 502 F.Supp.2d
69, 70 n.3 (D.D.C. 2007) (advising that in forma
pauperis status conveys right to have court effect
service only to extent plaintiff provides a valid address).
Plaintiff has failed to identify any effort at all on his
part to find an address for Defendant Miller. Thus, Plaintiff
fails to demonstrate that he made a "reasonable,
diligent effort to effect service on the
defendant[s]." Venable, 2007 WL 5145334, at * 1
(citation omitted) (internal quotation marks omitted).
Accordingly, Plaintiff has failed to demonstrate good cause
to excuse his failure to serve Defendants or good cause to
warrant an extension of time. The claims against Defendant
Miller will be DISMISSED WITHOUT PREJUDICE.
appropriate Order shall issue.
On October 20, 2017, the
United States Marshal returned the summons unexecuted, with a
note that Defendant Miller was no longer employed at the