McNeill v. Herring et al

Filing 45

ORDER that the Clerk of Court will send a copy of this Order, Docket No. 1 Complaint, and Docket No. 17 Sealed Document to the U.S. Marshals Service. The U.S. Marshal shall use reasonable efforts to locate and obtain serv ice on Defts Hinson, Horne, or Turgeon in accordance with Rule 4. The Clerk is also respectfully instructed to update the docket in this matter to reflect the full names provided for Defts Hinson and Turgeon in Docket No. 17. Signed by Chief Judge Martin Reidinger on 9/11/2020. (Pro se litigant served by US Mail.)(ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:18-cv-00189-MR
JAMES C. MCNEILL,

)
)
Plaintiff,
)
)
vs.
)
)
FNU HINSON, et al.,
)
)
Defendants.
)
________________________________ )

ORDER

THIS MATTER is before the Court on its own motion.
Pro se Plaintiff James C. McNeill (“Plaintiff”) is a North Carolina
prisoner currently incarcerated at Polk Correctional Institution in Butner,
North Carolina. Plaintiff filed this action in this Court on April 12, 2018,
pursuant to 42 U.S.C. § 1983, against Defendants John Herring, FNU
Hinson, FNU Simmons, William Horne, FNU Allen, FNU Turgeon, and FNU
Kinney. [Doc. 1]. Plaintiff’s Complaint survived initial review on February 5,
2019, except as to Plaintiff’s claim against Defendant Herring. [Doc.11].
Defendants Simmons, Allen, and Kinney executed waivers of service. [Doc.
16].
On April 8, 2019, the North Carolina Department of Public Safety
(NCDPS) filed a document under seal indicating it was unable to procure a

waiver of service for Defendants FNU (Michael D.) Hinson, William Horne,
and FNU (Thomas B.) Turgeon for the reasons stated in that document.1
[Doc. 17]. The sealed document provides the last known addresses for
Defendants Hinson, Horne, and Turgeon. [See id.].
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); 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 recognizes that this delay in service on these Defendants may lead to the
need for additional discovery and/or an extension of the dispositive motions’ deadline in
this case. The Court will address such needs as appropriate.
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Here, despite that requests for waivers of service were submitted to
the NCDPS, no waivers from Defendants Hinson, Horne, or Turgeon were
obtained. As such, it does not appear that these Defendants actually ever
received service of process. With the additional information supplied for
service on Defendants Hinson, Horne, or Turgeon, the U.S. Marshal is
hereby ordered to use reasonable efforts to locate and obtain service on
these Defendants in accordance with Rule 4.
To that end, the Court will direct the Clerk of Court to provide a copy of
Docket No. 17 to the U.S. Marshal for its eyes only for the sole purpose of
serving Defendants Hinson, Horne, or Turgeon.
ORDER
IT IS, THEREFORE, ORDERED that the Clerk of Court will send a
copy of this Order, Docket No. 1, and Docket No. 17 to the U.S. Marshals
Service. The U.S. Marshal shall use reasonable efforts to locate and
obtain service on Defendants Hinson, Horne, or Turgeon in accordance
with Rule 4.
The Clerk is also respectfully instructed to update the docket in
this matter to reflect the full names provided for Defendants Hinson and
Turgeon in Docket No. 17.

Signed: September 11, 2020

IT IS SO ORDERED.
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