United States District Court, W.D. North Carolina, Statesville Division
D. WHITNEY, CHIEF UNITED STATES DISTRICT JUDGE.
MATTER is before the Court on its own motion on
Plaintiff's Response to Show Cause Order [Doc. 44].
Plaintiff Arthur Lee Givens Bey, IV, filed this action in
forma pauperis pursuant to 42 U.S.C. § 1983 on June 21,
2017. [Doc. 1]. On September 29, 2017, the Court ordered that
the Plaintiff's Complaint survived initial review. [Doc.
9]. After initial review, the U.S. Marshals Service returned
summonses executed for Defendant Nichols on March 20, 2018
and for Defendants Hamilton and Harrington on March 22, 2018.
[Docs. 15, 16, 17]. The summons for Defendant FNU Murray was
returned unexecuted on or around March 22, 2018. [Doc. 18].
No. subsequent efforts at effectuating service on Defendant
Murray are reflected in the record in this matter. The Court
recently granted summary judgment for Defendants Harrington
and Nichols and denied, in part, summary judgment for
Defendant Hamilton. [Doc. 43].
August 8, 2019, this Court notified the Plaintiff that the
Court would dismiss Defendant FNU Murray (“Defendant
Murray”) without prejudice pursuant to Rule 4(m) of the
Federal Rules of Civil Procedure if the Plaintiff failed,
within 14 days of that Order, to show good cause for the
failure to timely serve Defendant Murray. [Doc. 42].
Rule 4(m) of the Federal Rules of Civil Procedure:
If a defendant is not served within 90 days after the
complaint is filed, the court---on motion or on its own
motion after notice to the plaintiff---must dismiss the
action without prejudice against the defendant or order that
service be made within a specified time. But if the plaintiff
shows good cause for the failure, the court must extend the
time for service for an appropriate period.
Civ. P. 4(m). This Rule makes clear that the Court must
extend the service period if the plaintiff can show
“good cause” for the failure to serve. Brooks
v. Johnson, 924 F.3d 104, 120 (4th Cir. 2019).
“What constitutes ‘good cause' for purposes
of Rule 4(m) ‘necessarily is determined on a
case-by-case basis within the discretion of the district
court.” Collins v. Thornton, --- Fed.Appx.
---, 2019 WL 3801449, at *1 (4th Cir. Aug. 13, 2019)
(citations omitted). The service period in Rule 4(m) is
tolled while the district court considers an in forma
pauperis complaint. Robinson v. Clipse, 602 F.3d
605, 608 (4th Cir. 2010).
the Court concluded its initial review of Plaintiff's
Complaint on September 29, 2017. As such, the Plaintiff had
until December 28, 2017, to serve the Complaint on Defendant
Murray. In response to the Court's show cause order, the
Plaintiff notes, “[o]n August 7, 2019 the Court ordered
the Plaintiff to show good cause for the failure to timely
serve Defendant ‘Kyle' Murray, or risk the Civil
Action against Defendant ‘Kyle' Murray being
dismissed without prejudice.” [Doc. 44 at 1]. Plaintiff
states, however, that instead he “chooses to set forth
facts showing good cause why Defendant ‘Kyle'
Murray should not be dismissed from this
action….” [Id. at 1-2]. In support of
his argument that Defendant Murray should not be dismissed,
Plaintiff states that “at the time the Court issued
Summons on the Defendant fNU [sic] Murray, the Plaintiff
could only give the Court the Defendant's last name, his
rank, and the address where the Defendant was last known to
be employed at the occurrence of the alleged incident”
and that “Plaintiff now have [sic] in his possession a
Statement by Witness ‘Kyle Murray, '” that
provides Defendant Murray's first name, his rank, and his
assignment within the prison at the time of the alleged
incident. [Id. at 2]. Finally, Plaintiff argues that
he is “an ‘indigent, Pro Se Litigant'
… [who] has no other way to issue Summons on Defendant
“Kyle” Murray, except via U.S. Marshals'
Statement by Witness Plaintiff attached to his response
appears to have been produced to Plaintiff by the other
Defendants in this action during the discovery period. It is
bates-stamped “Givens Bey v. FNU Murray
5:17-cv-108 000062.” [See Doc. 44 at 5].
Pursuant to the Court's Pretrial Order and Case
Management Plan, the discovery completion deadline in this
case was November 3, 2018. [Doc. 26 at 1]. Therefore, nothing
else appearing in the record otherwise, the Plaintiff had
Defendant Murray's first name, as well as the
aforementioned identifying information, no later than
November 3, 2018. Further, the record also show that
Plaintiff was aware that Defendant Murray had not been served
(or at least had not answered the Complaint) no later than
July 1, 2018, when the Plaintiff sought an extension of time
to respond to the other Defendants' Answer to
Plaintiff's Complaint. [See Doc. 25].
knowing since July 2018 that Defendant Murray had not
answered the Complaint and discovering Defendant Murray's
first name in early November 2018 at the latest, the
Plaintiff made no additional effort to have Defendant Murray
served with the Complaint in this case. Plaintiff also sought
no extension of time within which to effectuate service on
Defendant Murray. As such, even if the Court were to allow
the Plaintiff ninety (90) days from November 2, 2018, the
last possible date on which Plaintiff had the information he
needed to again attempt service on Defendant Murray, the
Plaintiff still would have failed to timely serve Defendant
such, the Plaintiff has not shown good cause for his failure
to timely serve Defendant Murray. Further, the Court declines
to exercise its discretion to extend the time for service at
this very late stage of these proceedings. The Court will,
therefore, dismiss Defendant Murray from this action.
THEREFORE, ORDERED that:
FNU Murray is hereby dismissed as a Defendant in this ...