Wright v. Lassiter et al
ORDER granting 77 Motion to Deem Answer Timely Filed. Signed by Chief Judge Martin Reidinger on 02/13/2021. The Clerk is instructed to separately docket Defendant Williams' [77-1] Answer. (Pro se litigant served by US Mail.) (hms)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CIVIL CASE NO. 1:18-cv-00090-MR
KAYIE SHAUNE WRIGHT,
KENNETH E. LASSITER, et al.,
THIS MATTER is before the Court on Defendant Alfred Williams’
Motion to Deem Answer Timely Filed [Doc. 77].
This civil rights action was filed by the incarcerated pro se Plaintiff
pursuant to 42 U.S.C. § 1983. The Amended Complaint passed initial review
on a number of claims, including a claim that Defendant Williams, a
disciplinary hearing officer, violated Plaintiff’s due process rights in a prison
disciplinary proceeding. [See Doc. 14].
Several Defendants filed a Motion for Summary Judgment in which
defense counsel noted that Defendant Williams had never been served.
[Doc. 65 at 1 n.1]. The Court ordered the Plaintiff to show cause why
Defendant Williams should not be dismissed pursuant to Federal Rule of Civil
Procedure 4(m). [Doc. 72 at 30].
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Plaintiff filed a Notice in which he stated that it was impossible for him
to locate Defendant Williams because his incarceration and lack of resources
had rendered him unable to ascertain Defendant Williams’ current employer
or address. [Doc. 73]. The Court found that Plaintiff had demonstrated good
cause for his failure to serve Defendant Williams and directed the U.S.
Marshal to locate and serve him. [Doc. 74]. On November 3, 2020, a
Summons was returned executed for Defendant Williams, which indicated
that Defendant Williams had been served on September 16, 2020. [Doc.
On January 19, 2021, Defendant Williams filed the instant Motion to
Deem Answer Timely Filed, [Doc. 77], attaching thereto his proposed
Answer. [Doc. 77-1]. Defendant Williams explains that the Office of the
Commissioner of Prisons was notified on September 23, 2020 that an
employee at Lanesboro Correctional Institution had signed for a certified mail
package addressed to Defendant Williams.
On September 23, 2020,
defense counsel received a copy of Defendant Williams’ military orders
indicating that he would be out of the office until September 30, 2020 on
military assignment. This information was conveyed to defense counsel’s
office. However, Defendant Williams’s office was not located at Lanesboro
C.I. Therefore, he was never notified that service had been accepted on his
Case 1:18-cv-00090-MR Document 78 Filed 02/16/21 Page 2 of 4
behalf.1 Therefore, defense counsel asserts, he had no reason to believe
that Defendant Williams had been served. Counsel noticed during a review
of the case that the USMS’s report of service was on September 16, 2020,
making his answer due on October 7, 2020. Counsel argues that his failure
to file an Answer on behalf of Defendant Williams was due to excusable
neglect, i.e., an administrative oversight by counsel in failing to timely review
the docket and appreciate that service on Defendant Williams had been
served. Counsel further argues that this oversight was not the fault of
Defendant Williams; that Defendant Williams will be prejudiced if this Motion
is denied; that the proceedings will not be negatively impacted by the Court’s
acceptance of Defendant Williams’ Answer; and that Plaintiff would not be
prejudiced if the Answer is deemed timely filed. The Plaintiff has not filed a
response to the Motion, and the time to do so has expired.
A court may extend the time when an act may or must be done, for
good cause, on a motion made after the time has expired if the party failed
to act because of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B). Excusable
neglect requires consideration of equitable factors such as “danger of
prejudice … the length of delay and its potential impact on the judicial
Arguably, such was insufficient service of process, but Defendant Williams waives such
objection by the present motion.
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proceedings, the reason for the delay, including whether it was in the control
of the movant, and whether the movant acted in good faith.” Pioneer Inv.
Serv. Co. v. Brunswick Assoc., 507 U.S. 380, 395 (1993).
Counsel has demonstrated that the failure to timely file an Answer on
Defendant Williams’ behalf was an administrative oversight and that denying
the Motion would unfairly prejudice Defendant Williams. Further, the Plaintiff
has failed to suggest that he would be prejudiced by the Court granting the
Motion, and the record does not suggest that any prejudice would occur.
Further, the Motion will not unduly delay these proceedings. Accordingly, for
good cause shown, the Motion will be granted and Defendant Williams’
Answer [Doc. 77-1] will be accepted as timely filed.
The Clerk will be
instructed to docket the Answer separately.
IT IS, THEREFORE, ORDERED that Defendant Alfred Williams’
Motion to Deem Answer Timely Filed [Doc. 77] is GRANTED.
The Clerk is instructed to separately docket Defendant Williams’
Answer [Doc. 77-1].
IT IS SO ORDERED.
Signed: February 13, 2021
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