United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge.
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.
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).
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 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).
STANDARD OF REVIEW
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).
4(e) of the Federal Rules of Civil Procedure provides as
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).
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
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 ...