Steele v. Robinson et al

Filing 20

ORDER denying 17 , 18 Motions for Entry of Default. Defendant Robinson is no longer employed at Lanesboro Correctional and may not have received service of process, this Court will instruct the U.S. Marshal to use reasonab le efforts to locate and obtain service on Defendant Robinson at Robinson's home address. The address may be redacted from the summons forms for security purposes following service on Defendant. Signed by Chief Judge Frank D. Whitney on 12/21/2015. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:15-cv-252-FDW
BRANDON GERALD STEELE,

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Plaintiff,
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vs.
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FNU ROBINSON, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s two Motions for Entry of Default
against Defendant FNU Robinson, (Doc. Nos. 17; 18), following Defendant Robinson’s failure to
answer or otherwise appear in this action.
Pro se Plaintiff Brandon Gerald Steele, a North Carolina state inmate currently incarcerated
at Lanesboro Correctional Institution, filed this action on June 8, 2015, pursuant to 42 U.S.C. §
1983. On July 23, 2015, the Court found that the action survived initial review as to Plaintiff’s
excessive force claim against Defendants FNU Henderson and FNU Robinson. (Doc. No. 6). The
U.S. Marshal thereafter attempted to effectuate service by certified mail on Defendant Robinson
at Lanesboro Correctional Institution, where Robinson was employed at all relevant times. On
September 23, 2015, the summons was returned as executed by the U.S. Marshal, but the summons
does not indicate who accepted service for Robinson, nor does the record indicate that Robinson
has actually received service of process. Furthermore, in response to an inquiry from the Court,
the North Carolina Attorney General has indicated that Defendant Robinson may no longer be
employed with the North Carolina Department of Public Safety.
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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).
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”).
Because it appears to the Court that Defendant Robinson is no longer employed at
Lanesboro Correctional Institution and may not have received service of process, this Court will
instruct the U.S. Marshal to use reasonable efforts to locate and obtain service on Defendant
Robinson at Robinson’s home address in accordance with Rule 4 of the Federal Rules of Civil
Procedure. If the U.S. Marshal obtains the home address for Defendant Robinson, the address may
be redacted from the summons forms for security purposes following service on Defendant.
IT IS THEREFORE ORDERED that:
(1)

The U.S. Marshal shall use reasonable efforts to locate and obtain personal
service on Defendant FNU Robinson.

(2)

The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.
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(3)

The Court denies Plaintiff’s Motions for Entry of Default, (Doc. Nos. 17; 18), as it
appears that FNU Robinson has not yet been properly served with notice of this
action.

3