Brown v. Phillips et al

Filing 33

ORDER that the U.S. Marshal use reasonable efforts to locate and obtain service on the Defendants. If the U.S. Marshal obtains the home addresses for the Defendants, the addresses may be redacted from the summons forms for security purposes following service on these Defendants. Signed by Chief Judge Frank D. Whitney on 1/2/2018. (Pro se litigant served by US Mail.)(eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-561-FDW
EDWARD EARL BROWN, JR.,

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Plaintiff,
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vs.
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A. PHILLIPS, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on periodic status review.
Pro se Plaintiff Edward Earl Brown, Jr., filed this action pursuant to 42 U.S.C § 1983 on
May 24, 2016,1 alleging that several employees of the Lanesboro Correctional Institution exercised
excessive force against him on July 5, 2013 between 9:00 and 10:00 PM at the institution’s Anson
Unit, D-block, in cell 12 and in a shower stall. (Doc. No. 2). He describes the Defendants as
Correctional Officer A. Phillips, Sergeant Lamburt, Correctional Officer Baker, Assistant Unit
Manager Rorie, and Captain Martin. (Doc. No. 2 at 3-4). Following initial review by the Court,
Plaintiff was instructed to prepare summonses for and submit them to the Clerk of Court for service
of process. Summons forms for service of process on Defendants were issued electronically on
December 4, 2017, and were returned unexecuted on December 27, 2017, because there are
multiple employees with that name (Lamburt, Rorie) (Doc. Nos. 28, 30), there is no employee by
that name at the institution (Martin, Baker) (Doc. Nos. 29, 31), and the individual is no longer a
state employee (Phillips) (Doc. No. 32).

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This action was originally filed in the Middle District of North Carolina and was transferred to this Court on July
21, 2016. See (Doc. No. 12).

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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”).
Therefore, this Court will instruct the U.S. Marshal to use reasonable efforts to locate and
obtain service on the Defendants. If the U.S. Marshal obtains the home addresses for the
Defendants, the addresses may be redacted from the summons forms for security purposes
following service on these Defendants.
IT IS SO ORDERED.
The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.

Signed: January 2, 2018

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