Revis v. Buchanan et al

Filing 18

ORDER that Defendant Davis is DISMISSED without prejudice. Signed by Chief Judge Martin Reidinger on 5/10/2024. (Pro se litigant served by US Mail.)(brl)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
1:23-cv-00294-MR-WCM
MATTHEW S. REVIS,

)
)
Plaintiff,
)
)
vs.
)
)
)
TRACEY BUCHANAN, et al.,
)
)
Defendants.
)
___________________________ )

ORDER

THIS MATTER is before the Court on Plaintiff’s “Response to Judicial
Order From 04/22/2024.” [Doc. 17].
Pro se Plaintiff Matthew S. Revis (“Plaintiff”) is a prisoner of the State
of North Carolina currently incarcerated at Mountain View Correctional
Institution in Spruce Pine, North Carolina.

Plaintiff filed this action on

October 16, 2023, pursuant to 42 U.S.C. § 1983, against Defendants Tracey
Buchanan, Steve Davis, and Hailey Hicks. [Doc. 1]. On January 16, 2024,
Plaintiff’s Complaint passed initial review against Defendants Buchanan and
Davis, and Defendant Hicks was dismissed. [Doc. 8]. The Clerk issued the
Summonses previously filed by Plaintiff to the U.S. Marshal for service on
Defendants Buchanan and Davis.

[Doc. 9].

Defendant Buchanan was

served and timely answered Plaintiff’s Complaint. [Docs. 10, 12]. The

Summons for Defendant Davis, however, was returned unexecuted on
February 5, 2024.

[Doc. 11].

On the unexecuted Summons, the U.S.

Marshal swore under penalty of perjury that the summons was returned
unexecuted because he was “unable to locate” Defendant Davis, who was
“[n]o longer employed at Avery County Jail.” [Doc. 11 at 3; see id. at 1]. It
appears that Defendant Davis remains unserved.
On April 22, 2024, the Court notified Plaintiff that it would dismiss
Defendant Davis without prejudice unless Plaintiff showed good cause for
the failure to timely serve him. [Doc. 15]. Plaintiff timely responded to the
Court’s Show Cause Order. [Doc. 17]. As grounds for failing to serve
Defendant Davis, Plaintiff states he “has been in contact with an aquaintance
[sic] of Defendant Steve Davis” who claims that Defendant Davis “is just
gonna try to keep dodging the Feds cause that’s what [Defendant Buchanan
and his attorney] told him to do.” [Id. at 1-2]. Plaintiff further asserts “that it
is not within his capabilities or his legal responsibilities to effectuate service
of a summons on an individual who is actively dodging the process server”
and that he “has reason to believe” that Defendant Davis “was still employed
by Avery County Sheriff’s Department” when the U.S. Marshal attempted
service. [Id. at 2].

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. Under Rule 4(m):
If a defendant is not served within 90 days after the
complaint is filed, the court---on motion or on its own
motion after notice to the plaintiff---must dismiss the
action without prejudice against the defendant or
order that service be made within a specified time.
But if the plaintiff shows good cause for the failure,
the court must extend the time for service for an
appropriate period.
Fed. R. Civ. P. 4(m). The service period in Rule 4(m) is tolled while the
district court considers an in forma pauperis complaint. Robinson v. Clipse,
602 F.3d 605, 608 (4th Cir. 2010). Initial review of Plaintiff’s Complaint in
this case occurred on January 16, 2024. [Doc. 8]. Plaintiff, therefore, had
until April 15, 2024 to serve Defendant Davis.
As noted, the Court notified Plaintiff that it would dismiss Defendant
Davis without prejudice unless Plaintiff showed good cause for the failure to
timely serve him. [Doc. 15]. As grounds for failing to serve Defendant Davis,
Plaintiff offers only that he “has reason to believe” that Defendant Davis was
employed at the Avery County Sheriff’s Department at the time of attempted
service and that he is not legally responsible for effecting service on
someone “dodging” service. [Doc. 17]. Plaintiff’s vague, unsupported, and
conclusory assertions that conflict with the U.S. Marshal’s statement under

penalty of perjury do not constitute good cause for failing to timely serve
Defendant Davis. Because Plaintiff has failed to show good cause for his
failure to serve Defendant Davis, the Court will dismiss Defendant Davis
without prejudice. See Fed. R. Civ. P. 4(m).
ORDER
IT IS, THEREFORE, ORDERED that Defendant Davis is DISMISSED
without prejudice.
IT IS SO ORDERED.
Signed: May 10, 2024