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Locklear v. Stirling

United States District Court, District of South Carolina

November 5, 2014

John Henry Locklear, # 289959, Plaintiff,
Mr. Bryan Stirling; Willie E. Eagleton; Roland McFadden; Ms Annie Sellers; Dr Samuel Soltis; Dr John McRee; Michael McCall; Robert E. Ward; Al Smith; Ms Fox; Doris Jacques; David Tatarsky; Maria Leggins; Janice Phillips; Althea B. Myers; Officer Miles; Nurse McQueen; Nurse Polson; Nurse Stoke; Ms. Hunter; Doctor Hughes; Ms. Jeffcoat; Christina Kellet, Defendants

John Henry Locklear, Plaintiff, Pro se, Bennettsville, SC.

For Mr Bryan Stirling SCDC Director, Willie E Eagleton, Evans CI Warden, Roland McFadden, Asso Warden, Ms Annie Sellers, Asso Warden, Michael McCall, SCDC Deputy Director, Robert E Ward, SCDC Deputy Director, David Tatarsky, SCDC General Counsel, Maria Leggins, Administrative Coordinator, Janice Phillips, Administrative Coordinator, Althea B Myers, Chief Investigator, SC Department of Licensing and Regulation, Division of Professional and Occupational Licensing, Office of Investigations and Enforcement, Officer Miles, Medical Officer, Defendants: Eugene H Matthews, LEAD ATTORNEY, Richardson Plowden and Robinson (Cola), Columbia, SC.

For Dr Samuel Soltis, Assistant Deputy Director Health Services, Dr John McRee, SCDC Medical Director, Al Smith, Evans CI Medical Director, Ms Fox, Evans CI Mental Health, Doris Jacques, Medical Regional Nurse Manager, Nurse Stoke, Medical Nurse, Evans CI, Ms Hunter, Evans Mental Health Counselor, Evans CI, Doctor Hughes, Evans Medical Doctor, Evans CI, Ms Jeffcoat, SCDC Deputy Director Office, Christina Kellett, SCDC Office of General Counsel, Defendants: Samuel F Arthur, III, LEAD ATTORNEY, Aiken Bridges Nunn Elliott and Tyler, Florence, SC.


Kaymani D. West, United States Magistrate Judge.

This is a civil rights action filed pursuant to 42 U.S.C. § 1983. This court previously directed that the Complaint be served on all Defendants; however, the attempted service upon Defendants Nurse McQueen and Nurse Polson by the United States Marshal's Service was returned unexecuted. ECF Nos. 60, 61.

According to the notations on the returned Forms USM-285, the Marshals Service's initial attempt to serve both of these two Defendants on October 14, 2014 at the Evans Correctional Institution (" ECI") address that Plaintiff provided on the forms was unsuccessful because " SCDC cannot accept -- contractor." Id. Apparently this means that officials at ECI would not accept service for these two nurses because they are not SCDC employees, but are employees of an undisclosed contractor. Thereafter, on October 29, 2014, the Marshals Service attempted to personally serve Defendants McQueen and Polson at the ECI address, but was then told that there was " No Nurse McQueen" and " No Nurse Polson" at ECI. Id. After that unsuccessful attempt at service, the Forms USM-285 were returned to this court and docketed as " unexecuted."

The providing of sufficient, accurate, and complete information on the Forms USM-285 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 120 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 120 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 120-day period within its discretion and finding defendant had been properly served within that extended period). With respect to Defendants McQueen and Polson in this case, September 2, 2014 is the date the summonses were issued. ECF No. 23.

Accordingly, should he desire to attempt service on either Defendants McQueen or Polson or both of them again, Plaintiff is directed to provide updated service forms with corrected service addresses for these Defendants. The new forms should be submitted to the Clerk of Court no later than November 26, 2014. Two blank summons forms and two blank Forms USM-285 forms are attached to this Order for Plaintiff's use.


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