McClellan v. Cothron et al

Filing 24

ORDER: The Clerk will send a copy of this Order and Docket No. 23 to the U.S. Marshal. The Marshal shall use reasonable efforts to locate and obtain service on Defendant Schetter.The Clerk is to correct the spelling of Defendant Todd Schitter to Todd Schetter as reflected in Docket No. 23 . Signed by Chief Judge Martin Reidinger on 1/6/2021. (Pro se litigant served by US Mail.) (maf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:20-cv-00189-MR
IAIAN EVANS MCCLELLAN,

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)
Plaintiff,
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vs.
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TODD SCHITTER,
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Defendant.
)
________________________________ )

ORDER

THIS MATTER is before the Court on its own motion.
On October 13, 2020, Plaintiff’s Amended Complaint survived this
Court’s frivolity review as to his Eighth Amendment claim against Defendant
Schetter. [Doc. 19]. On December 14, 2020, the North Carolina Department
of Public Safety (NCDPS) filed a document under seal indicating it was
unable to procure a waiver of service for Defendant Schetter for the reasons
stated in that document. [Doc. 23]. The sealed document provides the last
known address for Defendant Schetter, which is in the State of Louisiana.
[See id.].
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, pursuant

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to 28 U.S.C. § 1915(d), if the civil action of a prisoner who is proceeding in
forma pauperis survives initial review under 28 U.S.C. §§ 1915(e)(2), “[t]he
officers of the court shall issue and serve all process, and perform all duties
in such cases.” 28 U.S.C. § 1915(d). Further, under Rule 4(c)(3) of the
Federal Rules of Civil Procedure, the Court must “order that service be made
by a United States marshal or deputy marshal or by a person specially
appointed by the court” “if plaintiff is authorized to proceed in forma pauperis
under 28 U.S.C. § 1915.” Fed. R. Civ. P. 4(c)(3).
Where an individual defendant is a non-resident, service may proceed
according to Rule 4(e), which provides that such defendant may be served
by “following state law for serving a summons in an action brought in courts
of general jurisdiction in the state where the district court is located or where
service is made.” Fed. R. Civ. P. 4(e). Rule 4(j)(1)(c) of the North Carolina
Rules of Civil Procedure permits service “[b]y mailing a copy of the summons
and of the complaint, registered or certified mail, return receipt requested,
addressed to the party to be served, and delivering to the addressee.” N.C.
Gen. Stat. § 1A-1, Rule 4(j)(1)(c).
Here, despite that a request for a waiver of service was submitted to
the NCDPS, no waiver from Defendant Schetter was obtained and it appears
that Defendant Schetter did not receive service of process.

With the

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additional information supplied for service on Defendant Schetter, the U.S.
Marshal is hereby ordered to use reasonable efforts to locate and obtain
service on Defendant in accordance with Rule 4 of the North Carolina Rules
of Civil Procedure, as described above.
To that end, the Court will direct the Clerk of Court to provide a copy of
Docket No. 23 to the U.S. Marshal for its eyes only for the sole purpose of
serving Defendant Schetter.
ORDER
IT IS, THEREFORE, ORDERED that the Clerk of Court will send a
copy of this Order and Docket No. 23 to the U.S. Marshals Service. The U.S.
Marshal shall use reasonable efforts to locate and obtain service on
Defendant Schetter in accordance with the terms of this Order.
The Clerk is also respectfully instructed to correct the spelling of
Defendant Todd Schitter to Todd Schetter as reflected in Docket No. 23.
IT IS SO ORDERED.

Signed: January 6, 2021

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