Greene v. Holloway ( 2000 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOHN F. GREENE,
Plaintiff-Appellant,
v.
DEPUTY HOLLOWAY; STEVE SIMPSON,
Sheriff,
No. 99-7380
Defendants-Appellees,
and
LOUDOUN COUNTY SHERIFF'S
DEPARTMENT,
Defendant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Richmond.
Richard L. Williams, Senior District Judge.
(CA-98-629-3)
Submitted: March 7, 2000
Decided: March 22, 2000
Before WILKINS and TRAXLER, Circuit Judges,
and HAMILTON, Senior Circuit Judge.
_________________________________________________________________
Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
_________________________________________________________________
COUNSEL
John F. Greene, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
John F. Greene appeals the district court order dismissing without
prejudice his claim filed pursuant to 42 U.S.C.A.§ 1983 (West Supp.
1999). On appeal Greene argues that the district court erred when it
did not allow him the opportunity to amend his complaint concerning
Sheriff Simpson's liability and when it dismissed without prejudice
his action against Officer Holloway for failure to serve process. After
reviewing the record we affirm in part, vacate in part and remand.
Greene argues that because he is a pro se plaintiff the district court
should have allowed him the chance to cure any deficiencies in his
complaint concerning Sheriff Simpson. While a party may amend its
pleading once as a matter of right within certain limitations, thereafter
a party may amend its pleading only by leave of court or by written
consent of the adverse party. See Fed. R. Civ. P. 15(a). This Court
reviews the district court's orders concerning amendments to plead-
ings for abuse of discretion. See Foman v. Davis , 371 U.S. 178, 182
(1962); Keller v. Prince George's County, 923 F.2d 30, 33 (4th Cir.
1991). Because the record clearly discloses that Greene used his
amendment of right to add Sheriff Simpson as a defendant and never
moved the district court to further amend his complaint to add the
new theories of liability he ultimately relied on, we hold that the dis-
trict court did not abuse its discretion when it dismissed without prej-
udice Greene's claims against Sheriff Simpson.
Greene next argues that the district court improperly dismissed
without prejudice his action against Officer Holloway for failure to
serve process because by identifying Defendant Holloway by his
name, badge number, and last known place of employment, he did all
that is required under Graham v. Satkoski, 51 F.3d 710 (7th Cir.
1995). Under Graham, if an incarcerated plaintiff proceeding in
forma pauperis provides the Marshals Service sufficient information
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to identify the defendant, the Marshals Service's failure to complete
service will constitute good cause under Fed. R. Civ. P. 4(m) if the
defendant could have been located with reasonable effort. See id. at
713. This Court reviews de novo the determination that service of
process was insufficient and reviews for abuse of discretion the deci-
sion to dismiss the complaint. See Marshall v. Warwick, 155 F.3d
1027, 1030 (8th Cir. 1998); Shao v. Link Cargo (Taiwan) Ltd., 986
F.2d 700, 708 (4th Cir. 1993).
Greene provided sufficient information to identify Holloway. The
marshals' return merely stated that Holloway was not served because
he no longer worked for the Loudoun County Sheriff's Office and
suggested that he might be living outside Virginia. This statement
reflects no investigative effort to locate Holloway at his new address.
Because the record fails to disclose the nature of the effort, if any, in
which the Marshals Service engaged when attempting to locate Hol-
loway, we vacate the district court's order dismissing without preju-
dice Greene's claims against Holloway and remand so that the district
court may evaluate whether the marshals could have served Holloway
with reasonable effort.
Accordingly, we affirm in part, vacate in part and remand. We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART,
AND REMANDED
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