Page v. South Carolina, State of et al
ORDER: Plaintiff is directed to provide updated service forms with a corrected service address for Defendant Bethea. The new forms should be submitted to the Clerk of Court on or before June 15, 2017. The Rule 4(m) peri od is hereby extended for three months until September 8, 2017 to provide the pro se Plaintiff and the United States Marshal's Service with sufficient time to attempt to effect service on Defendant Bethea should Plaintiff desire to do so. Signed by Magistrate Judge Kaymani D West on 5/25/2017. (mcot, )
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
Andy Bethea, and
C/A No. 4:16-cv-02820-RBH-KDW
This is a civil rights action filed pursuant to 42 U.S.C. § 1983. On March 10, 2017, this
court directed that the Complaint be served on the Defendants listed in this caption of this Order.
ECF No. 29. The attempted service on Defendant Andy Bethea by the United States Marshals
Service was returned unexecuted on April 14, 2017. ECF No. 40. The other two Defendants were
served and have appeared in the case through counsel. ECF Nos. 34, 42.
According to the notations on the returned Form USM-285, the Marshals Service’s initial
attempt to Defendant Bethea at the address provided by Plaintiff was unsuccessful because
“SCDC OGC [Office of General Counsel] cannot accept -- cannot ID as an employee.” ECF No.
40. Apparently this means that officials at the South Carolina Department of Corrections
indicated that Defendant Bethea is not an employee of that Department and, therefore, they could
not accept service on his behalf.
The providing of sufficient, accurate, and complete information on the Forms USM285 is the responsibility of Plaintiff. Plaintiff’s attention is directed to Rule 4(m) of the Federal
Rules of Civil Procedure, which provides that unless a particular defendant is served within 90
days after the complaint is filed, this court may dismiss an action without prejudice as to that
particular defendant. Case law interpreting Rule 4(m) or its predecessor has uniformly held that
dismissal may be entered unless good cause is shown if a Defendant is not served within 90 days
from the date the summons was issued for that particular Defendant. See Robinson v. Clipse, 602
F.3d 605, 608-09 (4th Cir. 2010) (tolling during initial review); Vantage, Inc. v. Vantage Travel
Serv., Inc., No. 6:08-2765-HMH, 2009 WL 735893, at *2-3 (D.S.C. Mar. 20, 2009) (extending
the period for service is within the court’s discretion). With respect to Defendant Bethea, that
date is currently set for June 8, 2017. ECF No. 31.
Accordingly, should he desire to attempt service on Defendant Bethea again, Plaintiff is
directed to provide updated service forms with a corrected service address for this Defendant.
The new forms should be submitted to the Clerk of Court on or before June 15, 2017. One
blank summons form and one blank Form USM-285 are being provided for Plaintiff’s use.
As previously noted, the time for service may be extended for good cause shown. In this
case, because Plaintiff is only now being formally notified of the lack of service and because
there is a limited time remaining on the original Rule 4(m) service date, the undersigned, sua
sponte, finds that good cause for extending the Rule 4(m) time period is shown. The Rule 4(m)
period is hereby extended for three months until September 8, 2017 to provide the pro se
Plaintiff and United States Marshal’s Service with sufficient time to attempt to effect service on
Defendant Bethea should Plaintiff desire to do so.
TO THE CLERK OF COURT:
The Clerk of Court is directed to update the service deadline to show that service on
Defendant Bethea is now due on or before September 8, 2017. The Clerk of Court is directed to
provide blank service documents to Plaintiff along with his copy of this Order.
IT IS SO ORDERED.
May 25, 2017
Florence, South Carolina
Kaymani D. West
United States Magistrate Judge
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