Corbett v. Perry et al

Filing 102

ORDER that Defendant Lee Alan Rushing is dismissed from this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and this Courts Order, 50 . Signed by District Judge Max O. Cogburn, Jr on 10/6/2020. (ams)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-103-MOC
STANLEY CORBETT, JR.,

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Plaintiff,
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vs.
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FRANK PERRY, et al.,
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Defendants.
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____________________________________ )

ORDER

THIS MATTER is before the Court on periodic review of the record.
Incarcerated Plaintiff filed a pro se Complaint pursuant to 42 U.S.C. § 1983, 42 U.S.C. §
1985 and the North Carolina Tort Claims Act addressing incidents that allegedly occurred at the
Lanesboro Correctional Institution. The Complaint passed initial review against Defendants
including Lee Alan Rushing,1 a registered nurse.

See (Doc. No. 9).

The North Carolina

Department of Public Safety (NCDPS) was not able to waive service for Defendant Rushing
because he is no longer an NCDPS employee, but provided Defendant Rushing’s last known
address under seal. (Doc. No. 14). The Court directed the U.S. Marshals Service to use reasonable
efforts to locate and serve Defendant Rushing. (Doc. No. 15). The summons was returned
unexecuted, (Doc. No. 25), and the U.S. Marshals Service was again instructed to use reasonable
efforts to locate and obtain service on Defendant Rushing. (Doc. No. 27). The summons was
again returned unexecuted. (Doc. No. 34).
Plaintiff was then instructed to show cause why Defendant Rushing should not be
dismissed from this action for lack of service pursuant to Rule 4(m) of the Federal Rules of Civil

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“FNU Rushin” in the Complaint.

Procedure. (Doc. No. 50). Plaintiff was cautioned that the failure to comply with the Order would
likely result in the dismissal of Defendant Rushing from this action without prejudice. (Id.).
Plaintiff failed to file a response and the time to do so has long expired. Defendant Rushing will
therefore be dismissed from this action without prejudice.
IT IS, THEREFORE, ORDERED that Defendant Lee Alan Rushing is dismissed from
this action without prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure and
this Court’s Order, (Doc. No. 50).

Signed: October 6, 2020

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