Murdock v. Williams ( 2020 )

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION 3:19-cv-00039-MR AJANAKU MURDOCK, ) ) Plaintiff, ) ) vs. ) ) ORDER ) ) FNU WILLIAMS, et al., ) ) Defendants. ) ___________________________ ) THIS MATTER is before the Court sua sponte on its review of the docket in this matter. Pro se Plaintiff Ajanaku Murdock (“Plaintiff”) is a North Carolina prisoner currently incarcerated at Alexander Correctional Institution in Taylorsville, North Carolina. Plaintiff filed this action in this Court on January 28, 2019, pursuant to 42 U.S.C. § 1983. [Doc. 1]. Plaintiff’s Complaint survived initial review as to Defendants FNU Williams, FNU Horne, and FNU Mitchell. [Doc. 7]. Defendant Williams waived service. [Doc. 10]. After waivers of service for Defendants Horne and Mitchell were returned unexecuted, the Court ordered that the U.S. Marshal was to use reasonable efforts to locate and obtain service on Defendants Horne and Mitchell in accordance with Rule 4 of the Federal Rules of Civil Procedure. [Doc. 12]. Defendant Horne was served on January 10, 2020. [Doc. 14]. On February 27, 2020, Defendants Horne and Williams filed a motion to dismiss the Complaint, which remains pending before the Court. [Doc. 19]. Despite efforts by the U.S. Marshal to serve Defendant Mitchell, he remains unserved. [See Doc. 15]. Generally, 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. Under Rule 4(m): If a defendant is not served within 90 days after the complaint is filed, the court---on motion or on its own motion after notice to the plaintiff---must dismiss the action without prejudice against the defendant or order that service be made within a specified time. 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). The service period in Rule 4(m) is tolled while the district court considers an in forma pauperis complaint. Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010). Initial review in this case occurred on October 29, 2019. [Doc. 7]. Plaintiff, therefore, had until January 27, 2020 to serve Defendant Mitchell. As such, the Court hereby notifies Plaintiff that it will dismiss Defendant Mitchell without prejudice unless, within fourteen (14) days of this Order, the Plaintiff shows good cause for the failure to timely serve Defendant Mitchell. ORDER IT IS, THEREFORE, ORDERED that Plaintiff shall have fourteen (14) days from this Order to respond showing good cause why Defendant FNU Mitchell should not be dismissed from this action. Failure to timely comply with this Order will result in the dismissal of Defendant Mitchell from this action without prejudice. IT IS SO ORDERED. Signed: May 20, 2020 2 Reidinger ie as United States District Judge as