Mayberry v. Arkansas Department of Correction et al

Filing 8

ORDER OF PARTIAL DISMISSAL, defts Lymon, Kitchens, and McCormick are dismissed without prejudice due to lack of service; the Court certifies that an ifp appeal from this Order would not be taken in good faith. Signed by Chief Judge J. Leon Holmes on 4/19/11. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
EDWARD EUGENE MAYBERRY, JR.
v.

PLAINTIFF

No. 5:10CV00307 JLH/JTR

ARKANSAS DEPARTMENT
OF CORRECTION, et al.

DEFENDANTS

ORDER OF PARTIAL DISMISSAL
Plaintiff, Edward Eugene Mayberry, Jr., is a prisoner in the Grimes Unit of the Arkansas
Department of Correction (“ADC”). On October 21, 2010, his retained counsel filed a § 1983
Complaint alleging that Defendants ADC, ADC Director Ray Hobbs, Sergeant Lymon, Sergeant
Kitchens, and Lieutenant McCormick violated Plaintiff’s constitutional rights while he was a
prisoner in the Jefferson County Correctional Facility. See docket entry #1.
On February 25, 2011, the Court granted Plaintiff an extension, until March 21, 2011, to
serve Defendants. See docket entry #4. Thereafter, Plaintiff served only Defendants ADC and
Hobbs. See docket entry #6.
On March 31, 2001 the Court entered an Order giving Plaintiff fourteen days to show cause
why Defendants Lymon, Kitchens, and McCormick should not be dismissed, without prejudice, due
to lack of service. See docket entry #7; see also Fed. R. Civ. P. 4(m) (providing that: “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”).
As of the date of this Order of Partial Dismissal, Plaintiff has not responded to the Court’s
March 31, 2011 Order to Show Cause or served Defendants Lymon, Kitchens, and McCormick.

IT IS THEREFORE ORDERED THAT:
1.

Defendants Lymon, Kitchens, and McCormick are DISMISSED, WITHOUT

PREJUDICE, due to lack of service.
2.

The Court CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an in forma pauperis

appeal from this Order of Partial Dismissal would not be taken in good faith.
Dated this 19th day of April, 2011.

UNITED STATES DISTRICT JUDGE

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