United States District Court, W.D. North Carolina, Statesville Division
D. Whitney Chief United States District Judge
MATTER is before the Court on periodic status review
of the case.
United States Marshals Service has been ordered to attempt to
serve Defendants Thomas D. Ford, Rebecca
Gonzalez-Ojeda, David E. Guinn, Grena Mundle, Sylvia
Murphy, and Leonard Polanco in
accordance with Rule 4 of the Federal Rules of Civil
Procedure. (Doc. No. 48) (Polanco, Ford); (Doc. No. 55)
(Mundle); (Doc. No. 85) (Guinn); (Doc. No. 96) (Murphy,
Gonzalez-Ojeda). The U.S. Marshals Service was instructed to
use all reasonable efforts to locate and obtain personal
service on Defendants and, if it was unable to obtain
service, to inform the Court of its reasonable attempts to do
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 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).
Before a case may be dismissed based on failure to effectuate
service, the Court must first ensure that the U.S. Marshal
has used reasonable efforts to locate and obtain service on
the named defendants. See 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”).
summons form has been returned with regards to Defendants
Ford, Gonzalez-Ojeda, Mundle, Murphy, or Polanco. Within
14 days of this Order, the U.S. Marshals
Service shall file a Response informing the Court of the
status of its efforts to serve Defendants Ford,
Gonzalez-Ojeda, Mundle, Murphy, and
Polanco accordance with the above-mentioned
U.S. Marshals Service filed an unexecuted summons form with
respect to Defendant Guinn, indicating that it had made three
attempts to serve him and also made several attempts to
contact him by phone. (Doc. No. 100). The Court will instruct
the U.S. Marshal to again use reasonable efforts to locate
and obtain service on the Defendant Guinn
and, if it is unable to serve him, to inform the Court of its
reasonable efforts to obtain service.
regards to Defendant FNU Maine, neither
Plaintiff nor NCDPS has been able to identify her despite
NCDPS investigation and Plaintiff's provision of
information regarding her identity. (Doc. Nos. 94, 96, 98,
99). Rule 4(m) of the Federal Rules of Civil Procedure allows
a court to dismiss sua sponte unserved defendants
after 90 days following the filing of the complaint.
Fed.R.Civ.P. 4(m); see also Fed.R.Civ.P. 6(b)(1)(B)
(when an act must be done within a specified time, a court
may, for good cause, extend that time on motion made after
the time has expired if the party failed to act because of
Complaint in the instant case was docketed on September 5,
2018, and the Amended Complaint was docketed on February 20,
2019. (Doc. Nos. 1, 74). More than 90 days have expired and
Defendant Maine has not been served. Plaintiff is Ordered to
file a Response within fourteen (14) days of
this Order showing cause why Defendant FNU
Maine should not be dismissed from this action.
Plaintiff is cautioned that failure to comply with this Order
will likely result in the dismissal of this case without
prejudice and without further notice as to Defendant Maine.
U.S. Marshal is instructed to redact the Defendants' home
addresses from summons forms or file the summons forms under
seal for security purposes so that Defendants' home
addresses are not disclosed to the pro se
IS THEREFORE ORDERED that:
(1) The U.S. Marshal shall file a Response within
fourteen (14) days of this Order informing
the Court of the status of its efforts to serve Defendants
Ford, Gonzalez-Ojeda, Mundle, Murphy, and
(2) The U.S. Marshall shall make reasonable efforts to serve
Defendant Guinn and, if it is unable to
serve him, to inform the Court of its reasonable efforts to
(3) Plaintiff shall, within fourteen (14)
days of this Order, file a Response showing cause
why Defendant Maine should not be dismissed
from this action. Failure to comply with this Order will
probably result in dismissal of Defendant Maine from this
action without prejudice.
(4) The Clerk of Court is respectfully instructed to mail a
copy of this Order, the relevant NCDPS sealed Notices, (Doc.
Nos. 16, 43, 84, 94), and the Amended Complaint, ...