Charles Shirley v. Christopher Staubs ( 2020 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 20-6210
CHARLES J. SHIRLEY,
Plaintiff - Appellant,
v.
CHRISTOPHER STAUBS, in his personal capacity,
Defendant Appellee,
and
LOUDON COUNTY SHERIFFS OFFICE; STACY L. MCCAFFERY,
Defendants.
Appeal from the United States District Court for the Northern District of West Virginia, at
Martinsburg. Gina M. Groh, Chief District Judge. (3:19-cv-00041-GMG)
Submitted: July 6, 2020 Decided: July 17, 2020
Before WILKINSON, NIEMEYER, and MOTZ, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Charles J. Shirley, Appellant Pro Se.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles J. Shirley appeals from the district court’s order dismissing his complaint
against Christopher Staubs without prejudice for failure to perfect service. * On appeal,
Shirley contends that the Marshal Service did not make reasonable efforts to locate Staubs
and, as such, his failure to serve Staubs should be excused. We vacate and remand for
further proceedings.
Shirley is responsible for timely service. Fed. R. Civ. P. 4(c)(1). A plaintiff
proceeding in forma pauperis may request that service be made by a Marshal. The district
court must order the Marshal to do so if the defendant is proceeding in forma pauperis.
Fed. R. Civ. P. 4(c)(3); Richardson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (in forma
pauperis plaintiffs must rely upon the court and the Marshal to 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 or order that service be made within a specified time.” Fed. R. Civ.
P. 4(m). “[I]f the plaintiff shows good cause for the failure, the court must extend the time
for service for an appropriate period.” Id. We review a dismissal for insufficient service
of process for abuse of discretion. Shao v. Link Cargo (Taiwan) Ltd., 986 F.2d 700, 708
(4th Cir. 1993).
*
Shirley’s complaint was also dismissed against other defendants and against
Staubs in his official capacity. Shirley does not challenge these dismissals on appeal.
2
A plaintiff's pro se status is not sufficient to establish good cause. Rather, we can
find good cause to extend the service deadline only if the plaintiff made reasonable and
diligent efforts to effect service within the 90–day period. In some instances, an
inmate-plaintiff may only be required to properly identify the defendant, and the Marshal
Service must make reasonable efforts to obtain a current address. See Sellers v. United
States, 902 F.2d 598, 602 (7th Cir. 1990); see also Richardson v. Johnson, 598 F.3d 734,
738-40 (11th Cir. 2010) (noting that Marshal was responsible for serving defendant if such
could be done with “reasonable effort”).
Here, Shirley responded to every court inquiry and provided the Marshal Service
with allegedly the only address Shirley could obtain—Staubs’ place of employment. The
Marshal Service sent certified mail to Staubs at his place of employment, without requiring
Staubs’ (or his agent’s) personal signature, as required by West Virginia law. See W. Va.
R. Civ. P. 4. When it became clear that Staubs had left his employment, it does not appear
that the Marshal Service made any further inquiry or conducted any further research to
determine Staubs’ address. The district court made no findings regarding whether Shirley
established good cause for his failure to time serve Staubs; whether, as an inmate, Shirley
was barred (as he alleged) from obtaining Staubs’ home address; or whether the Marshal
Service could have served Staubs with reasonable effort. Instead, the court dismissed the
complaint, finding only that Shirley had failed to serve Staubs.
We find the district court abused its discretion, and we, thus, vacate the district
court’s order and remand for further proceedings consistent with this opinion. We dispense
3
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
4