Hyman v. Miller et al

Filing 44

ORDER that The U.S. Marshal is ordered to attempt service on Defendants Miller, Murry, and Carswell in accordance with Rule 4 of the Federal Rules of Civil Procedure. If these Defendants are no longer employed at the prison, then the U.S. Marshal shall use reasonable efforts to locate these Defendants and serve them properly in accordance with Rule 4. Signed by Chief Judge Frank D. Whitney on 1/4/2017. (Pro se litigant served by US Mail.)(khm)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-62-FDW
DEVIN HYMAN,

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Plaintiff,
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vs.
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FNU MILLER, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on its own motion following receipt of summonses
from the U.S. Marshal showing that service was executed on Defendants Miller, Murry, and
Carswell.
Pro se Plaintiff Devin Hyman, a North Carolina prisoner incarcerated at Lanesboro
Correctional Institution, filed this action on April 15, 2016, pursuant to 42 U.S.C. § 1983, alleging
excessive force against Defendants “FNU Miller,” “FNU Causby,” “FNU Murry,” and “FNU
Carswell,” all alleged to be employed as correctional officers at Alexander Correctional Institution
at all relevant times. The excessive force allegedly occurred on February 4, 2016. On September
23, 2016, the Court found that the action survived initial review, and the Court ordered the U.S.
Marshal to serve these Defendants using the summons forms submitted by Plaintiff. (Doc. No.
20). The U.S. Marshal thereafter attempted to effectuate service on Defendants at Alexander
Correctional Institution. On December 12, 2016, the summons forms were returned as executed
by the U.S. Marshal. (Doc. Nos. 36, 37, 38, 39). However, it does not appear that the U.S. Marshal
properly served Defendants Miller, Murry, and Carswell in accordance with Rule 4 of the Federal
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Rules of Civil Procedure. That is, the summons forms for Defendants Miller, Murry, and Carswell
all state that personal service was made on “S. Church, Officer.” It is not clear, however, that “S.
Church, Officer” is an agent authorized by appointment of law to receive service of process. The
Court will, therefore, order the U.S. Marshal to attempt to re-serve Defendants Miller, Murry, and
Carswell in accordance with Rule 4 of the Federal Rules of Civil Procedure. If these Defendants
are no longer employed at the prison, then the U.S. Marshal must use reasonable efforts to locate
these Defendants and serve them properly in accordance with Rule 4.
IT IS THEREFORE ORDERED that:
(1)

The U.S. Marshal is ordered to attempt service on Defendants Miller, Murry, and
Carswell in accordance with Rule 4 of the Federal Rules of Civil Procedure. If
these Defendants are no longer employed at the prison, then the U.S. Marshal
shall use reasonable efforts to locate these Defendants and serve them properly in
accordance with Rule 4.

(2)

The Clerk is instructed to mail a copy of this Order to the U.S. Marshal and the
North Carolina Attorney General.
Signed: January 4, 2017

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