Stout v. Honeycutt et al

Filing 16

ORDER that the Clerk of Court issue redacted summonses for Defts Eric Dye and Jeffrey Duncan. The Clerk will send the redacted summonses, a copy of this Order, the 1 Complaint, and 15 Sealed Document to the U.S. Marshals Service. The U.S. Marshal shall use reasonable efforts to locate and obtain service on Defts Eric Dye and Jeffrey Duncan in accordance with Rule 4. The Clerk is instructed to substitute the true full names of FNU Dye as Eric Dye and FNU Duncan as Jeffrey Duncan. Signed by Chief Judge Martin Reidinger on 1/16/2023. (Pro se litigant served by US Mail.) (ejb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:22-cv-00124-MR
TOMMY STOUT,

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

ORDER

THIS MATTER is before the Court on its own motion.
On December 29, 2022, the NCDPS filed a document under seal
indicating it was unable to procure a waiver of service for Defendant FNU
Dye and Defendant FNU Duncan for the reasons stated in that document.
[Doc. 15]. The sealed document provides the last known addresses for these
Defendants, as well as these Defendants’ true full names, which the Court
will direct the Clerk to substitute in the docket in this matter.
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

Case 5:22-cv-00124-MR Document 16 Filed 01/18/23 Page 1 of 3

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”).
Here, despite requests for waivers of service having been submitted to
the NCDPS, no waivers from Defendants Dye or Duncan 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 these
Defendants, 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. 15 to the U.S. Marshal for its eyes only for the sole purpose of
serving Defendants Dye and Duncan.

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Case 5:22-cv-00124-MR Document 16 Filed 01/18/23 Page 2 of 3

ORDER
IT

IS,

THEREFORE,

ORDERED

that

the

Clerk

of

Court

issue redacted summonses for Defendants Eric Dye and Jeffrey
Duncan. The Clerk will send the redacted summonses, a copy of this
Order, the Complaint [Doc. 1], and Docket No. 15 to the U.S.
Marshals Service. The U.S. Marshal shall use reasonable efforts to
locate and

obtain service

on

Defendants

Eric

Dye

and

Jeffrey

Duncan in accordance with Rule 4.
The Clerk is respectfully instructed to substitute the true full names of
FNU Dye as Eric Dye and FNU Duncan as Jeffrey Duncan.
IT IS SO ORDERED.
Signed: January 16, 2023

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Case 5:22-cv-00124-MR Document 16 Filed 01/18/23 Page 3 of 3