Breland Boone v. Erin Moore ( 2021 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-7049
BRELAND E. BOONE,
Plaintiff - Appellant,
v.
ERIN MOORE, Probation Officer District #3,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at
Alexandria. T.S. Ellis, III, Senior District Judge. (1:19-cv-00766-TSE-MSN)
Submitted: March 8, 2021 Decided: April 20, 2021
Before AGEE, HARRIS, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Breland E. Boone, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Breland Boone appeals the district court’s order dismissing without prejudice his 42
U.S.C. § 1983 action against Erin Moore. The district court sua sponte dismissed the action
pursuant to Fed. R. Civ. P. 4(m), finding that Boone had failed to timely effect service.
If a defendant is not served within 90 days after the complaint is filed, the
court—on motion or on its own after notice to the plaintiff—must dismiss
the action without prejudice against that defendant . . . . But if the plaintiff
shows good cause for the failure, the court must extend the time for service
for an appropriate period.
Fed. R. Civ. P. 4(m) (emphasis added). “[A] district court abuses its discretion when . . .
it dismisses a complaint sua sponte for lack of service without first giving notice to the
plaintiff and providing an opportunity for [him] to show good cause for the failure to effect
timely service.” Meilleur v. Strong, 682 F.3d 56, 61 (2d Cir. 2012); see Shao v. Link Cargo
(Taiwan) Ltd., 986 F.2d 700, 708 (4th Cir. 1993) (stating standard of review).
Here, although the district court informed Boone that failure to provide service
within 90 days would lead to dismissal, we conclude that when the effort to serve Moore
proved unsuccessful, the plain language of Rule 4(m) required the district court to provide
notice to Boone and offering him an opportunity to show good cause before sua sponte
dismissing the complaint. Thompson v. Maldonado, 309 F.3d 107, 110 (2nd Cir. 2002)
(per curiam). Accordingly, we vacate the dismissal order and remand to the district court
for further proceedings. We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before this court and argument would
not aid the decisional process.
VACATED AND REMANDED
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