Penaloza v. Hubbert et al

Filing 22

MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 9/10/2014. Copies as directed to Penaloza.(cmcc, )

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

his

2014,

the

failure

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.

*1

(E.D.
Inc.,

to

effect

Pep't of Corr.,

Va.

Floors,

efforts

Feb.

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

436,

plaintiff's

conclusion
Supp.

2d

{quoting

*1

Vincent

437

(N.D. W. Va.

pro

se

on

consideration

cause,

Lane

v.

(M.D.N.C.

constitute

3:08CV100,

214085,

WL

Lucent

2005),

incarceration alone

cause.

*l-2

when

Techs.,

neither

good

at

Mem'1

Hosp.,

141

While a court might take a

1992)).

into

597

2012

Reynolds

status

good

590,

v.

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