Huff v. McCormick et al, No. 3:2014cv00349 - Document 17 (E.D. Va. 2015)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 3/24/2015. (sbea, )
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Huff v. McCormick et al Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OP VIRGINIA CLERK, U.S. niSTRICT COURT Richmond Division JOHNNY R. RICi :t.:OND. VA HUFF, Plaintiff, V. Civil Action No. MR. McCORMICK, ^ 3:14CV349 al., Defendants. MEMORANDUM OPINION Johnny this 42 Huff, U.S.C. Procedure Here, R. § 4(m),^ that a 1983^ Huff period federal inmate action. had 120 commenced on proceeding Under days to serve September 22, se filed Rule Federal pro of Civil the defendants. 2014. More than ^ 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. ^ 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 the time for service for an appropriate period. Fed. R. Civ. P. 4 (m) . Dockets.Justia.com 120 days elapsed Accordingly, and Huff had not served defendants. by Memorandum Order entered on February 6, the Court directed Huff to show good cause serve the for his 2015, failure to Defendants. District courts within the Fourth Circuit have found good cause to extend the 120-day time period when the plaintiff has made "'reasonable, defendant.'" 5145334, Access diligent Venable v. at *1 (E.D. Inc., to effect Dep't of Corr., Va. Floors, efforts Feb. 31 F. 7, 2007) Supp. 2d No. service on 3:05cv821, 2007 WL (quoting Hammad v. 524, 528 (D. the Md. Tate 1999)). This leniency is especially appropriate when factors beyond the plaintiff's control frustrate his or her diligent efforts. McCollum 2010 v. WL GENCQ 5100495, Rentals v. 1996)). Infrastructure at United Thus, *2 (E.D. States, Solutions, Va. 164 Dec. 7, F.R.D. No. 2010) 422, See 3:10-CV-210, (citing 425 (N.D. T & S W. Va. courts are more inclined to find good cause where extenuating factors exist such as active evasion of service by a defendant, T & S Raymond Constr. stayed Rentals, Co., proceedings McCollum, 2010 570 Fountainhead Title Grp. 2006)). However, F. that WL 164 F.R.D. Supp. 278, delay 5100495, Corp., at 282 the F. "Mi]"advertence, ignorance of the rule or its burden, (citing (N.D. issuance at *2 447 425 Ga. of (citing Supp. 2d 478, neglect, Prather v. 1983)), a summons. Robinson 485 or (D. v. Md. misunderstanding, or half-hearted attempts at service' generally Venable, 2007 WL are insufficient 5145334, at *1 Mem'l Hosp., 141 F.R.D. 436, 437 to (quoting show good Vincent cause." v. Reynolds (N.D. W. Va. 1992)). Huff responds that his failure to serve the defendants in a timely manner should be excused because: in jail," (3) (2) (1) "he is still held he assumed the Court would serve defendants; and, he sent a copy of the lawsuit in the mail to "Petitioners." (ECF No. 14, at 1 (capitalization corrected).) While a court might take a plaintiff's pro se status into consideration when coming Inc., to a conclusion 388 F. Supp. on good 2d 590, 597 cause. Lane (M.D.N.C. v. Lucent 2005), neither pro se status nor incarceration alone constitute good cause. Long, No. 3:08CV100, 2012) (citing incarceration 2012 WL 214085, cases). fails to Thus, excuse at *1-2 the his (E.D. simple failure Sewraz v. Va. fact to Techs., Jan. of timely 24, Huff's serve the defendants. Additionally, the Court would serve the defendants fails to constitute good cause. Huff is not proceeding responsible for misunderstanding See Venable, at 437). of the Huff's ^ forma serving of erroneous that Finally, lawsuit to pauperis. the fact 2007 WL 5145334, assumption Thus, defendants. fails at *1 to that he His was solely ignorance constitute good (quoting Vincent, or cause. 141 F.R.D. Huff's vague statement that he mailed a copy someone fails to constitute good cause or constitute proper demonstrate good defendants or Accordingly, service. cause good Accordingly, to cause excuse to his warrant Huff has failure to an failed serve extension Huff's Motion for Extension of Time of to the time. (ECF No. 15) will be denied. Huff's Complaint Motion (ECF No. to Compel 12) No. 10) will be denied. No. 11) Defendants and Motion for to Respond to Summary Judgment the (ECF Huff's Motion to Submit an Exhibit (ECF will be granted. The action will be dismissed without prejudice because Huff failed to timely serve the defendants. The Clerk will be directed to mail a copy of this Memorandum Opinion to Huff. /s/ Robert E. /l&/^ Payne Senior United States District Judge Date: Richmond, Virginia
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