MCCARTHY v. FOX et al

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
SEAN B. MCCARTHY,
Plaintiff,
v.
LT. FOX, et al,
Defendant.
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Case No. 1:25CV135
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, who was then incarcerated at Nash Correctional Institution in Nashville,
North Carolina, filed a pro se civil rights action pursuant to 42 U.S.C. § 1983 together with an
application to proceed in forma pauperis. After reviewing the case for screening purposes, the
Court entered an Order [Doc. #5] granting Plaintiff in forma pauperis status and instructing the
Clerk to send Plaintiff blank summonses for him to complete and return in order to allow for
service of the Complaint on Defendants. The Clerk did mail the blank summonses to Plaintiff,
but they were returned by the postal service shortly thereafter with the envelope marked as
undeliverable, indicating that Plaintiff was no longer incarcerated at Nash Correctional. The
online records of the North Carolina Department of Adult Correction indicate that Plaintiff
was released from its custody to post-release supervision or parole in April of this year.
Despite the passage of over six months following his release, Plaintiff has not provided the
Court with his current address or otherwise engaged in any action in the case. Under Local
Rule 11.1:
A party appearing pro se shall keep the Court and opposing parties advised as to
his or her current address. If mail directed to a pro se plaintiff from the Clerk is
returned by the U.S. Postal Service, and if such plaintiff fails to notify the Court
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and opposing parties within sixty-three (63) days thereafter of a current address,
the Court may dismiss the action without prejudice for failure to prosecute.
In this case, mail addressed to Plaintiff was returned as undeliverable on July 21, 2025. Over
63 days have passed, and no updated address or other information has been provided by
Plaintiff. This case cannot proceed without Plaintiff’s updated information, as the Court has
no way to contact him.
Further, the lack of an address means that the Court is unable to resend Plaintiff the
summonses for completion. It has also now been more than 90 days since the Court
attempted to provide Plaintiff with the summonses so that service could be accomplished, and
the Defendants remain unserved as a result of Plaintiff’s failure to provide the Court with a
current address. Rule 4(m) of the Rules of Civil Procedure requires the Court to dismiss the
case without prejudice as to any Defendants not served within 90 days unless a plaintiff shows
good cause for the failure. For all of these reasons, this action should be dismissed without
prejudice unless Plaintiff provides the Court with an updated address and shows good cause
for his failure to prosecute the matter within fourteen (14) days of the entry of this Order.
IT IS THEREFORE RECOMMENDED that this action be dismissed without
prejudice based on Plaintiff’s failure to update his address with the Court and failure to
prosecute the case unless, within fourteen (14) days of the entry of this Order, Plaintiff
provides the Court with an updated address and shows good cause for his failure to prosecute
the matter.
This, the 20th day of October, 2025.
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