Pickens v. Hendricks et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:21-cv-00030-MR
BRANDON PICKENS, )
)
Plaintiff, )
)
vs. ) ORDER
)
STEVEN HENDRICKS, et al., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the U.S. Marshals Service’s
(“USMS”) return of an executed summons for Defendant Steven Hendricks
[Doc. 16 at 7-8].
The Complaint passed initial review on several defendants including
Defendant Steven Hendricks, a police officer, and the USMS was ordered to
effectuate service. [Doc. 13]. The pro se incarcerated Plaintiff filled out and
returned a summons form for Defendant Hendricks at the Asheville Police
Department’s mailing address. [Docs. 13, 15]. The summons was returned
as executed on September 2, 2021. [Doc. 16 at 7-8]. However, the certified
mail return indicates that the summons was delivered to a post office box
and the receipt was signed by an individual other than Defendant Hendricks.
[Id.].
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Rule 4(e) of the Federal Rules of Civil Procedure governs the service
of process upon individuals in the United States and provides that service
may be accomplished by either (1) delivering a copy of the summons and
complaint to the defendant personally or to a person of suitable age and
discretion then residing at the defendant’s home or usual place of abode or
(2) delivering a copy of the summons and complaint to an agent authorized
by appointment or by law to receive service of process. Fed. R. Civ. P. 4(e).
Rule 4(e) also provides that service of process may be accomplished
pursuant to the law of the state in which the district court sits. Id. North
Carolina’s requirements for service of process are virtually identical for all
practical purposes with the requirements of Rule 4. See N.C. R. Civ. P.
4(j)(1).
It does not appear that the Plaintiff made any attempt to serve
Defendant Hendricks personally in the manner prescribed by Rule 4(e). See
N.C. R. Civ. P. 4(j)(1)(c) (service may be made by registered or certified mail,
return receipt requested, addressed to the party to be served and “delivering
it to the addressee.”); see, e.g., McCreary v. Vaughan-Bassett Furniture Co.,
Inc., 412 F.Supp.2d 535 (M.D.N.C. 2005) (service was not properly effected
on an individual by USMS placing a summons and complaint in the
corporation employer’s post office box).
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The Plaintiff will therefore be required to fill out and return a summons
form for service of process on Defendant Hendricks within fourteen (14) days
of this Order pursuant to Rule 4(e). Once the Court receives the completed
summons form, the Clerk shall then direct the USMS to effectuate service on
Defendant Hendricks. Failure to timely comply with this Order will likely
result in the dismissal of Defendant Hendricks from this action without
prejudice and without further notice.
IT IS THEREFORE ORDERED that:
(1) The Plaintiff shall fill out and return a summons form for service
of process on Defendant Hendricks within fourteen (14) days of
this Order. Failure to timely comply with this Order will likely
result in the dismissal of Defendant Hendricks from this action
without prejudice and without further notice.
(2) The Clerk is respectfully instructed to mail a summons form to
the Plaintiff for the Plaintiff to fill out and return for service of
process on Defendant Hendricks. Once the Court receives the
completed summons form, the Clerk shall then direct the USMS
to effectuate service on Defendant Hendricks. The Clerk is
respectfully instructed to note on the docket when the form has
been mailed to Plaintiff.
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IT IS SO ORDERED.
Signed: September 17, 2021
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