Trent v. Roberts et al

Filing 32

ORDER directing Plaintiff to file proof that service of process has been effected within 5 business days of entry of this order. Signed by District Judge Martin Reidinger on 4/29/13. (Pro se litigant served by US Mail.)(bsw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:12cv329

JERRY JUSTIN TRENT,

)
)
Plaintiff,
)
)
vs.
)
)
RICHARD B. ROBERTS,
)
THE STATE OF NORTH CAROLINA, )
STEVE E. BROOKS, and
)
WAYNE E. JOHNSON,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court sua sponte.
The Plaintiff, who appears pro se, initiated this action pursuant to 42
U.S.C. §1983. [Doc. 1]. Although not entirely clear, it appears that the
litigation arises from an administrative garnishment of the Plaintiff’s wages
by the North Carolina State Education Assistance Authority in order to
collect a debt owed by the Plaintiff as the result of student loans. [Doc. 1-5
at 19-20, 22-24, 27-28, 37]; [Doc. 1-6 at 20]. On February 14, 2013, the
Plaintiff was granted an extension of time through March 1, 2013 within
which to file an Amended Complaint in order to add new defendants. [Doc.
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27]. On March 22, 2013, twenty-one days after the deadline imposed by
this Court, the Plaintiff filed a “Waiver” in which he stated that he does not
intend to filed an amended complaint or to add defendants. [Doc. 30].
On that same date, the Plaintiff renewed his Motion for Default
Judgment, claiming that the Defendants have been “served summonses
and failed to respond[.]” [Doc. 31]. The Defendant’s previous motion for
default judgment was denied on March 14, 2013 because there has been
no entry of default. [Doc. 31]. Although the Plaintiff has filed what he
purports to be proof of service of summonses on the Defendants, it does
not appear that the Complaint was also included in the alleged certified
mail by which Plaintiff claims to have accomplished service. Fed.R.Civ.P.
4(c)(1) (requiring a copy of the complaint be served with summons);
Patterson v. Whitlock, 392 Fed. App’x. 185, 188 n.7 (4th Cir. 2010) (noting
that while the Federal Rules of Civil Procedure do not authorize service by
mail, they do permit service in accordance with state law which in North
Carolina may be accomplished by certified mail, return receipt requested).
Based on what has been filed to date, the Court is compelled to
question whether this action is frivolous. The Plaintiff will nonetheless be
provided an opportunity to prove that he has served each of the

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Defendants with not only the summons but also a copy of the Complaint.
The Plaintiff is warned that Federal Rule of Civil Procedure 41(b) provides
that an action may be dismissed if the plaintiff fails to prosecute or to
comply with a court order. F.R.Civ.P. 41(b). Failure to properly serve a
copy of the Complaint on each Defendant constitutes a failure to prosecute.
The Federal Rules of Civil Procedure recognize that courts
must have the authority to control litigation before them, and
this authority includes the power to order dismissal of an action
for failure to comply with court orders.
Ballard v. Carlson, 882 F.2d 93, 95 (4th Cir.), cert. denied 493 U.S. 1084,
110 S.Ct. 1145, 107 L.Ed.2d 1049 (1990). This Court therefore issues this
Order as an explicit warning that continued failure to comply could result in
dismissal. Id. at 96.
IT IS, THEREFORE, ORDERED that on or before five (5) business
days from entry of this Order, the Plaintiff shall file proof in the record that
each Defendant has been served with a summons and a copy of the
Complaint.
Signed: April 29, 2013

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