MONROE v. ADAMS et al

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
DEVONTA J. MONROE, 	)
)
Plaintiff, 	)
)
v. 	) 	1:24CV770
)
JAMIE ADAMS, et al., 	)
)
Defendants. 	)
ORDER
On 	February 	4, 	2026, 	the 	United 	States 	Magistrate 	Judge’s
Order 	and 	Recommendation 	was 	filed 	and 	notice 	was 	served 	on 	the
parties 	in 	accordance 	with 	28 	U.S.C. 	§ 636(b). 	(Docs. 	22, 	23.)
Objections were filed within the time limits prescribed by § 636.
(Doc. 26.) 	Of Defendants’ objections, two warrant discussion.
First, 	Defendants 	object 	to 	the 	Order 	and 	Recommendation
because, they argue, the court cannot extend the time for Plaintiff
Devonta 	J. 	Monroe 	to 	properly 	serve 	them. 	(Doc. 	26 	at 	7-8.)
Specifically, 	Defendants 	contend 	that 	binding 	Fourth 	Circuit
precedent 	requires 	dismissal 	because 	Monroe 	has 	not 	shown 	good
cause for his failure to timely serve. 	(Id. (citing Attkisson v.
Holder, 925 F.3d 606, 627 (4th Cir. 2019)).)
In 	Attkisson, 	the 	court 	noted 	- 	with 	no 	further 	analysis 	-
that 	“Rule 	4(m) 	requires 	the 	dismissal 	of 	defendants 	who 	remain
unserved 	ninety 	days 	after 	the 	filing 	of 	a 	complaint 	unless 	‘the
plaintiff shows good cause.’” 	Attkisson, 925 F.3d at 627 (quoting
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Fed. 	R. 	Civ. 	P. 	4(m)). 	However, 	in 	Gelin 	v. 	Shuman, 	the 	Fourth
Circuit extensively discussed both the plain text of Rule 4(m) and
the 	Supreme 	Court’s 	recognition 	that 	– 	because 	of 	the 	1993
amendments 	to 	the 	Rules 	- 	“courts 	ha[d] 	been 	accorded 	discretion
to 	enlarge 	the 	[time] 	period 	‘even 	if 	there 	is 	no 	good 	cause
shown.’” 	Gelin 	v. 	Shuman, 	35 	F.4th 	212, 	219 	(4th 	Cir. 	2022)
(emphasis 	and 	alterations 	in 	original) 	(quoting 	Henderson 	v.
United States, 517 U.S. 654, 662 (1996)). 	Accordingly, the court
held “that under Rule 4(m), a district court possesses discretion
to 	grant 	the 	plaintiff 	an 	extension 	of 	time 	to 	serve 	a
defendant . . . even 	absent 	a 	showing 	of 	good 	cause 	by 	the
plaintiff 	for 	failing 	to 	serve 	the 	defendant 	during 	the 	90-day
period provided by the Rule.” 	Id. at 220.
As 	Defendants 	correctly 	assert, 	“[w]hen 	published 	panel
opinions 	are 	in 	direct 	conflict 	on 	a 	given 	issue, 	the 	earliest
opinion 	controls.” 	McMellon 	v. 	United 	States, 	387 	F.3d 	329, 	333
(4th 	Cir. 	2004) 	(en 	banc). 	But 	the 	court 	in 	Attkisson 	applied
Fourth 	Circuit 	precedent 	without 	considering 	the 	effect 	of
intervening amendments to the Federal Rules of Civil Procedure or
precedent from the Supreme Court of the United States. 	See Mendez
v. 	Elliot, 	45 	F.3d 	75, 	78 	(4th 	Cir. 	1995) 	(“Rule 	4(m) 	requires
that 	if 	the 	complaint 	is 	not 	served 	within 	120 	days 	after 	it 	is
filed, 	the 	complaint 	must 	be 	dismissed 	absent 	a 	showing 	of 	good
cause.”). 	In 	Gelin, 	on 	the 	other 	hand, 	the 	court 	explained 	at
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length how the requirement to dismiss a complaint absent a showing
of 	good 	cause 	had 	been 	abrogated. 	See 	35 	F.4th 	at 	218-20.
Specifically, 	the 	court 	stated: 	“Now, 	however, 	we 	bring 	our
jurisprudence 	on 	this 	issue 	in 	line 	with Henderson and 	confirm
that 	the 	statements 	in Mendez indicating 	that 	a 	plaintiff 	must
establish 	good 	cause 	to 	obtain 	an 	extension 	of 	time 	to 	serve 	the
defendant are no longer good law.” 	Id. at 219-20 (emphasis added).
And 	notably, 	the 	same 	circuit 	judge 	authored 	both 	Mendez,
articulating 	the 	old 	requirement, 	and 	Gelin, 	announcing 	its
abrogation. 	Thus, 	Gelin’s 	interpretation 	of 	the 	discretion
afforded district courts under Rule 4(m) controls.
Second, Defendants object to the Text Orders from January 22,
2025, 	and 	February 	3, 	2025, 	because 	they 	did 	not 	require 	“that
service 	be 	made 	within 	a 	specified 	time.” 	(Doc. 	26 	at 	9-10
(quoting Fed. R. Civ. P. 4(m)).) 	Defendants argue that, although
both orders required Monroe to provide properly completed summons
forms to the clerk’s office by a deadline, the orders did not set
a subsequent deadline for when the United States Marshals Service
had to complete service of process. 	(Id. at 11.) 	Thus, according
to 	Defendants, 	the 	Text 	Orders 	awarded 	relief 	not 	available
pursuant to Rule 4(m), the court therefore never extended Monroe’s
time 	to 	serve 	Defendants, 	and 	Monroe 	failed 	to 	properly 	serve
Defendants within the original 90-day deadline established by the
Magistrate Judge’s order on October 31, 2024. 	(Id.; see Doc. 3.)
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Regardless 	of 	the 	propriety 	of 	the 	prior 	Text 	Orders, 	this
court 	will 	now, 	as 	an 	exercise 	of 	its 	discretion 	under 	Gelin,
extend the time for service to require that Monroe deliver properly
completed 	summons 	forms 	to 	the 	clerk’s 	office 	by 	April 	10, 	2026,
and 	that 	Monroe 	effect 	service 	of 	process 	on 	Defendants 	by 	April
27, 2026.1
The court, having appropriately reviewed the portions of the
Magistrate Judge’s report to which objections were made and having
made a de novo determination in accord with the Magistrate Judge’s
report, therefore adopts the Magistrate Judge’s Recommendation.2
For the reasons stated,
IT 	IS 	THEREFORE 	ORDERED 	that 	Defendants’ 	motion 	to 	dismiss
(Doc. 17) is DENIED.
IT IS FURTHER ORDERED that:
(1) 	Plaintiff 	Monroe 	shall 	have 	until 	April 	27, 	2026, 	to
effect proper service of process on Defendants;
1 The Magistrate Judge’s Order and Recommendation set a deadline of March
6, 2026, for Monroe to effect proper service of process on Defendants.
This 	deadline 	has 	now 	passed, 	and 	so 	the 	court 	will 	grant 	Monroe
additional time.
2 	Defendants 	assert 	that 	even 	if 	good 	cause 	is 	not 	required 	for 	an
extension 	of 	time, 	the 	excusable 	neglect 	standard 	cabins 	the 	court’s
discretion 	in 	granting 	such 	an 	extension. 	(Doc. 	26 	at 	17-18 	(citing
Bolus v. Fleetwood RV, Inc., 308 F.R.D. 152, 156 (M.D.N.C. 2015)).) 	To
the extent such a requirement exists, the court finds excusable neglect
on Monroe’s part, given his in forma pauperis pro se status and efforts
so far in this litigation. 	But see generally Gelin, 35 F.4th 212 (never
discussing excusable neglect).
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(2) 	The 	Clerk 	of 	Court 	shall 	promptly 	re-issue 	and 	forward
the summonses (see Doc. 8 at 3-6) and any other necessary documents
to 	the 	United 	States 	Marshals 	Service 	for 	service 	of 	process 	on
Defendants; and
(3) 	The 	United 	States 	Marshals 	Service 	shall 	promptly 	mail
copies 	of 	the 	summonses 	and 	complaint 	via 	certified 	mail, 	return
receipt requested, to Lieutenant White and Detective Cooke at their
place of employment.
/s/ 	Thomas D. Schroeder
United States District Judge
March 30, 2026
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