Pickens v. Lewis et al

Filing 42

ORDER that within 30 days of this Order, USM shall use reasonable efforts to locate and obtain service on Defts John S. Carbone and Jennie Lancaster and in accordance with Fed. R. Civ. P. 4.; and USM shall inform Court of efforts taken to locate and serve these Defts. Signed by Chief Judge Frank D. Whitney on 2/28/17. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:15-cv-275-FDW
BRANDON MICHAEL PICKENS,

)
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Plaintiff,
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vs.
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ROBERT LEWIS, et al.,
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Defendants.
)
___________________________________ )

ORDER

THIS MATTER is before the Court on periodic status review.
Pro se Plaintiff Brandon Pickens is a prisoner of the State of North Carolina, currently
incarcerated at Pender Correctional Institution in Burgaw, North Carolina. Plaintiff filed this
action on December 9, 2015, pursuant to 42 U.S.C. § 1983, bringing claims against numerous
Defendants. All Defendants except for Defendants John S. Carbone and Jennie Lancaster have
either been dismissed or have been served and have appeared in this matter. On September 20,
2016, the U.S. Marshal returned unexecuted summons forms for Defendants John S. Carbone and
Jennie Lancaster, noting that these Defendants are no longer employed with the North Carolina
Department of Public Safety. See (Doc. Nos. 25, 26).
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
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).
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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 Defendants John S. Carbone and Jennie
Lancaster.
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 Defendants John S. Carbone and Jennie Lancaster and in
accordance with Fed. R. Civ. P. 4. If the U.S. Marshal is unable to locate and obtain
and service on these Defendants within this time period, the U.S. Marshal shall
inform the Court of the efforts taken to locate and serve these Defendants.

(2)

The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.

Signed: February 28, 20
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