Penaloza v. Hubbert et al, No. 3:2012cv00565 - Document 22 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/2014. Copies as directed to Penaloza.(cmcc, )
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IN THE UNITED FOR THE STATES DISTRICT 1 L 1 COURT l£ SEP I I EASTERN DISTRICT OF VIRGINIA Richmond Division CLERK, U.S. DISTRICT COURT RICHMOND. VA VIRGILIO PENALOZA, Plaintiff, Civil v. DR. HUBBERT, Action No. 3:12CV565 et al. , Defendants. MEMORANDUM OPINION Virgilio Penaloza, in forma pauperis a federal inmate proceeding pro se and filed this 42 U.S.C. § 19831 action, Under Federal Rule of Civil Procedure 4(m),2 Penaloza had 120 days to serve Dr. Gordon and Dr. Hubbert ("Defendants") . Here, 1 That statute provides, in pertinent part: Every person who, under color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... 42 U.S.C. § 1983. 2 Rule 4(m) provides, in pertinent part: If after a the defendant complaint is is not served filed, the within court-on 120 days 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 appropriate period. Fed. R. Civ, 4(m) the time for service for an that period commenced elapsed and Accordingly, Court on February Penaloza by directed 18, had 2014. not More served than the 120 defendants. Memorandum Order entered on July 23, Penaloza to show good cause for days the failure his 2014, to serve Defendants. District cause made courts within to extend the "'reasonable, defendant.'" 5145334, Access at the Fourth Circuit have found good 120-day time period when the plaintiff has diligent Venable v. efforts to effect Pep't of Corr., *1 (E.D. Va. Feb. Floors, Inc., 31 F. 7, 2007) Supp. 2d No. service 3:05cv821, on the 2007 WL (quoting Hammad v. Tate 524, 528 (D. Md. 1999)). This leniency is especially appropriate when factors beyond the plaintiff's control frustrate his or her diligent efforts. McCollum 2010 v. WL GENCO 5100495, Rentals v. at United Infrastructure *2 {E.D. States, Solutions, Va. 164 Dec. 7, F.R.D. No. 2010) 422, See 3:10-CV-210, (citing T 425 (N.D. W. & S Va. i 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, Raymond Constr. stayed Co., proceedings McCollum, 2010 WL 164 F.R.D. at 425 570 F. Supp. that delay 5100495, 278, the at 282 (citing Prather v. (N.D. Ga. issuance *2 (citing of 1983)), a or summons. Robinson v. Fountainhead Titlle Grp. Corp., 447 F. Supp. 2d 478, 485 (D. Md. 2006)). However, "*[i]nadvertence, neglect, of the rule or its burden, misunderstanding, ignorance or half-hearted attempts at service' generally are insufficient to show good cause." Venable, 5145334, F.R.D. at {quoting *1 Vincent v. Reynolds 437 (N.D. W. Va. plaintiff's pro se status into consideration on good cause, Lane v. 590, 597 Supp. 2d 1992)). (M.D.N.C. constitute 3:08CV100, 214085, 2012 WL Lucent 2005), incarceration alone cause. *l-2 when Techs., neither good at Hosp., 141 While a court might take a 436, conclusion Mem'1 2007 WL pro Inc., se Sewraz (E.D. Va. coming to 388 a F. status Long, v. Jan. nor No. 24, 2012) (citing cases). By Memorandum Order entered on February 18, 2014, informed Marshal for Penaloza that, in serving Defendants. Penaloza. On if Defendants For June 119 17, he wished the during the days, 2014, Penaloza apparently 120-day made no assistance of the he must provide a street address the the Court Court request for the appointment of counsel, However, the Court period effort heard nothing received from Penaloza's which the Court denied. for to serving Defendants, ascertain Defendants' addresses and provide the same to the Court. Indolence such as that is hardly consistent with "'reasonable, diligent efforts to effect service on the defendant.'" Venable, *1 (quoting Hammad, 31 F. Supp. 2d at 528). 2007 WL 5145334, at Penaloza providing forma suggests Defendants' pauperis. is providing in a timely manner. 522 F. App'x 10)5, 991 he addresses Penaloza responsibility j for Defendants that F.2d 487, bears because responsibility he incorrect. the See 108 (3d Cir. 2013) 489 (8th Cir. no 1993)}. Court is proceeding Penaloza with Maltezos v. for in bore the addresses for Giannakouros, (citing Lee v. Armontrout, Because Penaloza has failed to establish good cause for his failure to serve Defendants, the action will be dismissed without prejudice. The Clerk is directed to send a copy of the Memorandum Opinion to Penaloza. ist /LW Robert E. Payne Senior United States District Judge Richmond, Virginia Date: September! (t?, 2014
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