Barkley v. State of Maryland et al
Filing
41
MEMORANDUM OPINION. Signed by Judge George Levi Russell, III on 8/16/2016. (c/m 8/16/16)(krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
KEITH BARKLEY,
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Plaintiff,
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v.
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STATE OF MARYLAND, et al.,
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Defendants.
Civil Action No. GLR-14-957
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MEMORANDUM OPINION
On December 9, 2015, the Court granted Plaintiff Keith Barkley ninety days to show
cause why this case should not be dismissed for failure to serve Defendant Paul Lee, to state why
his claims were not extinguished by Lee’s death, and to move for a substitution of party, as may
be appropriate. (ECF No. 38). The Court cautioned Barkley that failure to timely comply would
result in dismissal of his claims. Barkley filed two untimely responses on March 11, 2016.
(ECF Nos. 39, 40). He titles the first as a “Motion to Show Cause” (ECF No. 39) and the second
as a “Motion Showing Why Claim is not Extinguished by Lee’s Apparent Death and to Name
Substitutes” (ECF No. 40). For the reasons that follow, the Court will dismiss this case with
prejudice because Barkley’s responses are untimely and unresponsive.
Barkley filed this case on March 27, 2014, alleging that in May 2010, he was sexually
molested in an elevator at the Maryland Reception, Diagnostic and Classification Center
(“MRDCC”) by Correctional Officer Paul Lee. Defendants, the State of Maryland, former
MRDCC Warden Tyrone Crowder, the MRDCC, and the Department of Public Safety and
Correctional Services, by their counsel from the Office of the Attorney General of Maryland,
filed a Motion to Dismiss or, in the Alternative, for Summary Judgment. (ECF No. 13). Lee,
who was no longer employed by the Department of Public Safety and Correctional Services
when Barley filed this case, was not served. (ECF No. 13-1 n.1).
The Court determined Keith Barkley’s claims were time-barred, granted the dispositive
motion, and closed the case. (ECF No. 25). On October 14, 2015, the United States Court of
Appeals for the Fourth Circuit affirmed the decision as to all Defendants, except Lee. (ECF No.
31). The Fourth Circuit vacated and remanded Lee’s dismissal because the record did not show
compliance with Federal Rule of Civil Procedure 4(m) before the claims against him were
dismissed. Rule 4(m) provides that if a defendant is not served within 1201 days after the
Complaint is filed, the Court, on motion or on its own motion after notice to the Plaintiff, must
dismiss the action without prejudice or order that service be made within a specified time. Prior
to dismissing Barkley’s claims against Lee, Barkley was entitled to show good cause for failure
to serve Lee.
On remand, this Court ordered counsel to provide Lee’s last known address under seal.
(ECF No. 32). On November 6, 2015, the Summons and Complaint were sent to Paul Lee at his
last known address by the U.S. Marshal, certified mail restricted delivery. (ECF No. 36). On
December 7, 2015, the U.S. Postal Service returned the Summons and Complaint to the Clerk
unexecuted. On the envelope was written “deceased” and “return to sender, unable to forward.”
(ECF No. 37).
On December 9, 2015, the Court granted Barkley 90 days to show why his claim was not
extinguished by Lee’s apparent death.
Barkley was also provided an opportunity to state
whether he wanted to substitute another party on whom to effectuate service, and why this party
was an appropriate substitute for Lee. (ECF No. 38).
1
For Complaints filed after December 1, 2015, the time limit for service is shortened to
90 days. Fed.R.Civ.P. 4(m) (2015 Amendment).
2
Barkley’s response fails to show cause why his claim is not extinguished by Lee’s
apparent death or specify the name of a substitute defendant for service Barkley. (ECF Nos. 39,
40). Instead, Barkley asks this Court and the United States Congress to “override” the Eleventh
Amendment so that he may bring suit against the State and its employees for failing to have
cameras in prison elevators. (Id.). He also asks for the names of the policy makers who
promulgated the MRDCC strip search policy. Barkley questions how and when Lee died. (ECF
No. 40). Additionally, he asks for DNA testing on the boxers he wore on the night of the alleged
sexual assault and on Officer Lee, and offers to take a polygraph test. (Id.). None of Barkley’s
requests is responsive to the Court’s Order to Show Cause.
Accordingly, Barkley’s claims against Paul Lee will be dismissed with prejudice. A
separate Order follows.
Entered this 16th day of August, 2016
/s/
_______________________
George L. Russell, III
United States District Judge
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