Keith Barkley v. State of Maryland

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:14-cv-00957-GLR Copies to all parties and the district court/agency. [999677364]. Mailed to: Keith Barkley. [15-6494]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-6494

KEITH BARKLEY,
Plaintiff - Appellant,
v.
STATE OF MARYLAND; TYRONE
M.R.D.C.C.; D.P.S.C.S.,

CROWDER,

Warden;

PAUL

LEE;

Defendants - Appellees.

Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-00957-GLR)

Submitted:

August 25, 2015

Decided:

October 14, 2015

Before KEENAN, WYNN, and HARRIS, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.

Keith Barkley, Appellant Pro Se.
Nichole Cherie Gatewood,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Keith Barkley appeals the district court’s order denying
relief

on

his

42

U.S.C.

§ 1983

(2012)

complaint.

Barkley

asserts that the district court erred in granting Defendants’
motion to dismiss.

We affirm in part, vacate in part, and

remand.
Defendant Paul Lee was not served in the district court and
did

not

move

dismissed

to

dismiss

Barkley’s

the

claims

action.

against

Lee

The
as

district

untimely.

court
“[T]he

statute of limitations is an affirmative defense, meaning that
the

defendant

generally

pleading its existence.”

bears

when it

“evaluat[es]

burden

of

affirmatively

Eriline Co. S.A. v. Johnson, 440 F.3d

648, 653 (4th Cir. 2006).
as

the

Only in limited circumstances, such
a

complaint

filed

in

forma

pauperis

pursuant to § 1915,” may the district court consider a statute
of limitations defense sua sponte.

Id. at 656.

Here, because

this action was filed in forma pauperis pursuant to 28 U.S.C.
§ 1915

(2012),

sua

sponte

consideration

of

timeliness

was

permissible.
Nevertheless, the record does not show that the district
court complied with Fed. R. Civ. P. 4 before dismissing the
claims against Lee.

“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
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without prejudice against that defendant or order that service
be

made

within

(emphasis added).

a

specified

time.”

Fed.

R.

Civ.

P.

4(m)

If the plaintiff can show good cause for his

failure to serve, “the court must extend the time for service
for an appropriate period.”

Id.

Accordingly, we conclude that

prior to dismissing Barkley’s claims against Lee, Barkley is
entitled to an opportunity to show good cause for failure to
serve.
We have reviewed the record and find no reversible error as
to the dismissal of Barkley’s remaining claims against the State
of Maryland, the Department of Public Safety and Correctional
Services, the Maryland Reception Diagnostic and Classification
Center, and Warden Tyrone Crowder.

Accordingly, we vacate and

remand the district court’s judgment dismissing Barkley’s claim
against Lee, but affirm as to the remaining defendants for the
reasons stated by the district court.

Barkley v. Maryland, No.

1:14-cv-00957-GLR (D. Md. Mar. 25, 2015).

We dispense with oral

argument because the facts and legal contentions are adequately
presented in the materials before this Court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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