Charles Shirley v. Christopher Staubs

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 17, 2020
• Docket: 20-6210
• Status: Unpublished

Opinion

UNPUBLISHED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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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