Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Brown v. Solomon

United States District Court, W.D. North Carolina, Statesville Division

January 16, 2018

MARSHALL LEE BROWN, JR., Plaintiff,
v.
GEORGE T. SOLOMON, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on a Motion to Dismiss filed by Defendants Betty Brown, Swindall Edwards, Daniel Redding, and Kenneth Beaver pursuant to Rules12(b)(2), 12(b)(4), and 12(b)(5) of the Federal Rules of Civil Procedure, (Doc. No. 11), alleging insufficient service of process and lack of personal jurisdiction.

         I. BACKGROUND

         Plaintiff is a North Carolina prisoner alleging that his religious rights were infringed while he was incarcerated at the Alexander Correctional Institution in 2014 and 2015. (Doc. No. 1). He is proceeding pro se and in formal pauperis. (Doc. No. 3). The Court conducted an initial review of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and, on September 18, 2017, determined that the claims based on the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), were sufficient to proceed against Defendants George T. Solomon, Betty Brown, Swindell Edwards, Daniel Redding, and Susan White. (Doc. No. 7). The Court instructed Plaintiff to complete and return to the Court summons forms for service of process. (Doc. Nos. 7, 8). Plaintiff returned summons forms addressed to “Kenneth Lassiter - Director N.C. Department of Public Safety - Prisons” in Raleigh, “Betty Brown - Chaplaincy Services Director NC Department of Public Safety - Prisons” in Raleigh, “Swindell Edwards - Chaplaincy Services Director - NC Department of Public Safety - Prisons” in Raleigh, “Daniel Redding, Clinical Chaplain II, Alexander Correctional Institution, ” and “Ken Beaver, Superintendent, Alexander Correctional, Institution, ” which the Clerk of Court issued electronically to the U.S. Marshal for service of process on November 3, 2, 2017. (Doc. No. 9).

         On December 8, 2017, counsel filed a notice of appearance on behalf of Defendants Brown, Edwards, and Redding, and filed the instant Motion to Dismiss supported by a memorandum of law and affidavits. (Doc. No. 10, 11). The Court issued a Roseboro[1] Order to Plaintiff on December 18, 2017, advising him of the importance of responding to Defendants' motion. (Doc. No. 13). Plaintiff has filed a Response. (Doc. No. 14).

         II. STANDARD OF REVIEW

         “Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant.” Koehler v. Dodwell, 152 F.3d 304, 306 (4th Cir. 1998). A motion may be brought to dismiss for lack of personal jurisdiction, insufficient process, and insufficient service of process may be brought pursuant to Rules 12(b)(2), 12(b) (4) and 12(b)(5) of the Federal Rules of Civil Procedure. Once the sufficiency of service is challenged, the plaintiff bears the burden of establishing that service of process has been accomplished in a manner that complies with Rule 4. See, e.g., Plant Genetic Sys., N.V. v. Ciba Seeds, 933 F.Supp. 519, 526 (M.D. N.C. 1996).

         III. DISCUSSION

         Rule 4(e) of the Federal Rules of Civil Procedure provides as follows:

Unless federal law provides otherwise, an individual - other than a minor, an incompetent person, or a person whose waiver has been filed - may be served in a judicial district of the United States by: (1) following state law for serving a summons in an action brought in the courts of general jurisdiction in the state where the district is located or where service is made; or (2) doing any of the following: (A) delivering a copy of the summons and of the complaint to the individual personally; (B) leaving a copy of each at the individual's dwelling or usual place of abode with someone of suitable age and discretion who resides there; or (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed. R. Civ. P. 4(e).

         Rule 4(j)(1) of the North Carolina Rules of Civil Procedure prescribes the manner by which service may be effectuated in North Carolina, directing that service upon a natural person shall be as follows:

a. By delivering a copy of the summons and of the complaint to the natural person or by leaving copies thereof at the defendant's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.
b. By delivering a copy of the summons and of the complaint to an agent authorized by appointment or by law to be served or to accept service of process or by serving process upon such agent ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.