Bennett v. Steward et al, No. 3:2011cv00751 - Document 10 (E.D. Va. 2013)

Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 5/14/13. Copy sent: Yes(tdai, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Richmond Division CHRISTOPHER D. BENNETT, Plaintiff, Civil Action No. v. JAMES STEWARD, III, 3:11CV751 et al., Defendants. MEMORANDUM OPINION Christopher D. Bennett, a Virginia detainee proceeding pro se and in forma pauperis, matter is Defendant before the filed this civil rights action. Court on the time Rule of Steward within Bennett's failure required by to Federal The serve Rule of Civil Procedure 4(m).1 Pursuant had one to hundred Federal and twenty Civil days (120) complaint to serve the defendants. on June 25, 2012. Procedure from the 4(m), Bennett filing of Here, that period commenced More than one hundred and twenty (120) 1 Rule 4(m) provides: If a defendant is not served within 120 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 4(j) (1) . Fed. R. Civ. P. 4(m). the days elapsed and Accordingly, Court Bennett failed to by Memorandum Order directed Bennett serve the defendants. to show serve entered good the on March cause for defendants. 1, his 2013 the failure to Bennett failed to respond to the March 1, 2013 Memorandum Order. Rule 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 120-day period. Fed. R. Civ. P. 4(m). Courts within the United States Court of Appeals for the Fourth Circuit found good cause to extend the 120-day time "^reasonable, diligent defendant."' Venable v. 5145334, Access at period when the efforts to Dep't of Corr., 2007) *1 (E.D. Va. Feb. Floors, Inc., 31 F. 7, Supp. 2d plaintiff has made service on the effect No. 3:05cv821, 2007 WL (quoting Hammad v. 524, 528 (D. Md. Tate 1999)). Neither pro se status nor incarceration constitutes good cause. Sewraz v. Long, Jan. 24, No. 2012) 3:08CV100, (citing 2012 WL 214085, cases). Because at *l-2 Bennett (E.D. Va. fails to demonstrate good cause for his failure to serve the defendants, the action will be dismissed without prejudice. An appropriate Order shall issue. /s/ fl£4 Robert E. Payne Senior United States District Judge Richmond, Virginia :^y/i/^/3^ Date:

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