Ellenburg v. Henderson County Jail et al
Filing
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ORDER that Within 30 days of this Order, the U.S. Marshal shall use reasonable efforts to locate and obtain service on Defendant Brensen. If the U.S. Marshal is unable to locate and obtain and service on Defendant within this time period, the U.S. Marshal shall inform the Court of the efforts taken to locate and serve Defendant. Signed by Chief Judge Frank D. Whitney on 08/21/15. (Pro se litigant served by US Mail.)(emw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:14-cv-290-FDW
EDDIE ELLENBURG,
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Plaintiff,
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vs.
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HENDERSON COUNTY JAIL, et al.,
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Defendants.
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__________________________________________)
ORDER
THIS MATTER is before the Court on periodic status review.
Pro se Plaintiff Eddie Ellenburg, a North Carolina state inmate currently incarcerated at
Pasquotank Correctional Institution, filed this action on November 5, 2014, pursuant to 42 U.S.C.
§ 1983, alleging, among other things, that Defendant Shawn Brensen used excessive force against
Plaintiff on October 16, 2014, while Plaintiff was a pre-trial detainee at the Henderson County
Detention Center. Defendant Brensen was identified in the Complaint as an officer at the
Henderson County Detention Center at all relevant times. Following initial review by the Court,
Plaintiff submitted a summons form for service by the U.S. Marshal. On August 20, 2015, the
U.S. Marshal returned as unexecuted a summons form, indicating that service was attempted by
certified mail on a personal address in South Carolina, but that the summons was returned as “not
deliverable as addressed—unable to forward.” See (Doc. No. 15 at 1).
Generally, a plaintiff is responsible for effectuating service on each named Defendant
within the time frame set forth in Fed. R. Civ. P. 4(m), and failure to do so renders the action
subject to dismissal. However, if an incarcerated plaintiff proceeding in forma pauperis provides
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the Marshals Service sufficient information to identify the defendant, the Marshals Service’s
failure to complete service will constitute good cause under Rule 4(m) if the defendant could have
been located with reasonable effort. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995).
Before a case may be dismissed based on failure to effectuate service, the Court must first ensure
that the U.S. Marshal has used reasonable efforts to locate and obtain service on the named
defendants. See Greene v. Holloway, No. 99-7380, 2000 WL 296314, at *1 (4th Cir. Mar. 22,
2000) (where the district court dismissed a defendant in a Section 1983 action based on the
prisoner’s failure to provide an address for service on a defendant who no longer worked at the
sheriff’s office, remanding so the district court could “evaluate whether the marshals could have
served [Defendant] with reasonable effort”). Therefore, this Court will instruct the U.S. Marshal
to use reasonable efforts to locate and obtain service on Defendant Brensen.
IT IS THEREFORE ORDERED THAT:
(1)
Within 30 days of this Order, the U.S. Marshal shall use reasonable efforts to locate
and obtain service on Defendant Brensen. If the U.S. Marshal is unable to locate
and obtain and service on Defendant within this time period, the U.S. Marshal shall
inform the Court of the efforts taken to locate and serve Defendant.
(2)
The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.
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