Corbett v. Perry et al

Filing 27

ORDER the U.S. Marshal to use reasonable efforts to locate and obtainservice on Defendant Rushing if safe means of doing so are available. Signed by Chief Judge Frank D. Whitney on 11/27/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-103-FDW
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 status review.
Pro se Plaintiff’s Complaint pursuant to 42 U.S.C § 1983 passed initial review on claims
against several Defendants including Lee Alan Rushing. (Doc. No. 9). The North Carolina
Department of Public Safety was unable to procure a service waiver for Defendant Rushing but
filed his last known address under seal. (Doc. No. 14). The U.S. Marshal was instructed to serve
Defendant Rushing in compliance with Rule 4 of the Federal Rules of Civil Procedure on October
11, 2018. (Doc. No. 15). The summons was returned unexecuted as to Defendant Rushing on
November 26, 2018, because the Deputy Marshal attempted service on two occasions, encountered
several large dogs in Defendant’s yard, and deemed service unsafe. (Doc. No. 25).
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).
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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”).
The Court will instruct the U.S. Marshal to use reasonable efforts to locate and obtain
service on Defendant Rushing if safe means of doing so are available. Defendant’s home address
shall be redacted from the summons forms for security purposes following service on Defendant
Rushing.
IT IS SO ORDERED.
The Clerk is respectfully instructed to mail a copy of this Order to the U.S. Marshal.

Signed: November 27, 2018

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