Steele v. Robinson et al

Filing 25

ORDER that the U.S. Marshal shall use all reasonable efforts to locate and obtain personal service on Defendant Renisha Robinson at Defendants home address. If the U.S. Marshal is unable to obtain personal service on Defendant Robinson, the U.S. Marshal shall inform the Court of the reasonable attempts to obtain service. Signed by Chief Judge Frank D. Whitney on 10/28/2016. (Pro se litigant served by US Mail.)(eef)

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 a periodic status review.
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 Renisha 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 4, 2015, Defendant Henderson filed an Answer. (Doc. No. 12). On
September 23, 2015, the summons as to Robinson 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. (Doc. No. 14).
On December 21, 2015, the Court entered an order noting that the Court had been informed
that Defendant Robinson is no longer employed with the North Carolina Department of Public
Safety, and the Court instructed the U.S. Marshal to locate and obtain service on Defendant
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Robison at Robinson’s home address. (Doc. No. 20). Although the Court has a return of service
for summons served on Defendant Robinson at Lanesboro Correctional Institution, Defendant has
still not filed an Answer, and it is not clear whether Defendant Robinson has been personally
served with summons.
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 personal service of process, this
Court will instruct the U.S. Marshal to use reasonable efforts to locate and obtain personal service
on Defendant Renisha 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
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service on Defendant.
IT IS THEREFORE ORDERED that:
(1)

The U.S. Marshal shall use all reasonable efforts to locate and obtain personal
service on Defendant Renisha Robinson at Defendant’s home address. If the U.S.
Marshal is unable to obtain personal service on Defendant Robinson, the U.S.
Marshal shall inform the Court of the reasonable attempts to obtain service.

(2)

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

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