United States District Court, E.D. Virginia, Richmond Division
MARCUS J. BARBEE, Plaintiff,
LT. T. MAYO, et al., Defendants.
HANNAH LAUCK, UNITED STATES DISTRICT JUDGE
a Virginia prisoner proceeding pro se, filed this
action. The matter is before the Court on Plaintiffs failure
to serve Defendants K-A Officer Smith and Sgt. Hanes within
the time required by Federal Rule of Civil Procedure 4(m).
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
Civ. P. 4(m). Pursuant to Federal Rule of Civil Procedure
4(m), Plaintiff had 90 days to serve K-A Officer Smith. Here,
that period commenced on April 2, 2019. More than 90 days
elapsed, and Plaintiff has not served Defendant Smith.
Accordingly, by Memorandum Order entered on October 10, 2019,
the Court directed Plaintiff, within eleven (11) days of the
date of entry thereof, to show good cause why the action
against Defendant Smith should not be dismissed without
Sgt. Hanes, by Memorandum Order entered on September 19,
2019, the Court directed the Attorney General's Office to
notify the Court whether it could accept service on behalf of
Sgt. Hanes. Counsel responded and indicated that she cannot
accept service because the institution has never employed a
Sgt. Hanes. Accordingly, in the October 10, 2019 Memorandum
Order, the Court also explained that, at this juncture,
Plaintiff was responsible for providing a more thorough
identification of Sgt. Hanes within eleven (11) days or the
Court would dismiss the action against Sgt. Hanes for failure
to effect service.
has responded. ("Response," ECF No. 49.) With
respect to the identification of Sgt. Hanes, Plaintiff states
... All defendants should be able to give the identity of
Sgt. Hanes/unknown name of Sgt in question.
He is officer seen on camera of day in question. Grab me by
my left arm and ram my face into metal table in the pod. He
has a tribal tattoo that goes up his left, right arm and he
came to the assistance call with S. Hall and Hall can
identify the defendant in question by video footage of the
entire incident that took place on 10-17-17 in Z-Bravo-pod
involving all defendants.
(Id. at 1-3 (capitalization, spelling, and
respect to Defendant Smith, Plaintiff states the following:
I don't have the means without help from the courts to
serve KA Officer Smith.
Without help from the courts, it is impossible for me to
serve Defendant Smith. I have no address or first name or
anything for ...