LaKemper v. Huneycutt et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:24-cv-00118-MR-WCM
COBEY LAKEMPER, )
)
Plaintiff, ) MEMORANDUM AND
) RECOMMENDATION
vs. )
)
RONNIE HUNEYCUTT, et al., )
)
Defendants. )
________________________________ )
This matter is before the Court on Plaintiff’s Response to Order to Show
Cause and Motion for Extension of Time to Serve Defendant Jennifer Bruce
[the “Motion,” Doc. 30].
I. RELEVANT BACKGROUND
On May 10, 2024, Plaintiff filed this action pursuant to 42 U.S.C. § 1983,
addressing incidents that allegedly occurred at Alexander Correctional
Institution.1 [Doc. 1].
His original complaint was dismissed without prejudice on August 1,
2024. [Doc. 7].
Plaintiff filed an Amended Complaint on October 4, 2024. [Doc. 11].
1 The record shows that Plaintiff is presently located at Nash Correctional Institution.
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On March 10, 2025, Plaintiff’s Amended Complaint passed initial review
including against Jennifer Bruce, and the Court directed the Clerk to
commence the procedure for waiver of service by the North Carolina
Department of Adult Corrections (“NCDAC”). [Doc. 13].
NCDAC was unable to procure a waiver of service for Defendant Bruce,
who is no longer employed by NCDAC, but did provide her last known address
under seal. [Doc. 19].
The Court then instructed the U.S. Marshal to use all reasonable efforts
to locate and obtain service on Defendant Bruce. [Doc. 20].
A Deputy United States Marshal in another district attempted service
on Defendant Bruce at the address provided by NCDAC, but Defendant could
not be located there and a neighbor reported that Defendant no longer lived
there. [Doc. 23 at 1]. However, the unexecuted service return identified another
possible address for Defendant Bruce. [Id.].
The Clerk was then directed to reissue a summons for Defendant Bruce
at the new address identified in the unexecuted service return, and to transmit
a copy of the Amended Complaint [Doc. 11] and the reissued summons to the
U.S. Marshals Service, which was directed to use reasonable efforts to locate
and obtain service on Defendant Bruce. [Doc. 24].
A second unexecuted service return, filed on August 29, 2025, showed
that this additional residence was vacant and that old, untouched mail that
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had been left at the residence was not addressed to Defendant Bruce. [Doc. 27.
at 3-4].
On September 3, 2025, the Court ordered Plaintiff to show cause, within
14 days, why Defendant Bruce should not be dismissed from this action for lack
of service. [Doc. 28].
On September 18, 2025, Plaintiff filed the Motion. Plaintiff argues that
Defendant Bruce is personally aware of this action, having been placed on
notice by her codefendants and through Bruce’s twin sister who is employed by
NCDAC; that Defendant Bruce has evaded service by not making herself
available; and that Defendants are “enabl[ing] concealment of [Bruce’s] … true
location….” [Doc. 30 at 2]. Plaintiff asks the Court to direct defense counsel
to locate and serve Defendant Bruce on Plaintiff’s behalf. [Id.]. Plaintiff also
asks the Court to extend the service deadline by 30 days. [Id.].
II. DISCUSSION
Rule 4(m) of the Federal Rules of Civil Procedure provides that if a
defendant is not served within 90 days after a 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, except that the court must extend the time for service if the
plaintiff shows good cause for the failure. In the absence of good cause, a
district court possesses discretion to grant the plaintiff an extension of time to
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serve a defendant. Gelin v. Shuman, 35 F.4th 212, 220 (4th Cir. 2022); see
Williams v. Future Foam, Inc., 2025 WL 1166870 (M.D.N.C. April 22, 2025
(applying the excusable neglect standard set forth in Fed. R. Civ. P. 6(b)(1)(B)).
Here, the Amended Complaint passed initial review on March 10, 2025,
and Plaintiff’s deadline to serve Defendant Bruce expired on June 9, 2025.
Robinson v. Clipse, 602 F.3d 605, 608 (4th Cir. 2010) (the 90-day period is tolled
while the district court considers an
in forma pauperis complaint).
Under the circumstances presented, Plaintiff has not demonstrated good
cause for the failure to serve Defendant Bruce.
Plaintiff’s speculative suggestions that Defendant Bruce is aware of this
action and has evaded service are insufficient to support a further extension of
the deadline for service. See Fed. R. Civ. P. 4; Harris v. S. Charlotte Pre-Owned
Auto Warehouse, LLC, 2015 WL 1893839 (W.D.N.C. April 27, 2015) (it is the
plaintiff’s burden to show good cause under Rule 4(m)).
Plaintiff’s status as a
pro se prisoner, without more, likewise does not
warrant the relief he requests. See Shirley v. Staubs, 812 F.App’x 162 (4th Cir.
2020) (Mem.) (plaintiff’s
pro se status fails to establish good cause); Murdock
v. Moore, 2024 WL 5011630 (W.D.N.C. Dec. 5, 2024) (plaintiff’s status as a
pro
se prisoner does not excuse the service requirements).
Finally, to the extent Plaintiff requests that the Court compel defense
counsel to locate and serve Defendant Bruce on his behalf, Plaintiff has
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provided no legal basis for such relief or for shifting Plaintiff’s service burden
to defense counsel. See generally Fed. R. Civ. P. 4; Carawan v. Mitchell, 400
F.Supp.3d 371, 393 n.6 (W.D.N.C. 2019) (dismissing
pro se plaintiff’s claims
against parties who were not timely served in accordance with Rule 4(m)).
III. RECOMMENDATION
For the reasons set out herein, the undersigned RESPECTFULLY
RECOMMENDS that Plaintiff’s Response to Order to Show Cause and Motion
for Extension of Time to Serve Defendant Jennifer Bruce [Doc. 30] be DENIED
and that Defendant Bruce be DISMISSED WITHOUT PREJUDICE from this
action pursuant to Fed. R. Civ. P. 4(m).
Signed: October 22, 2025
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Time for Objections
The parties are hereby advised that, pursuant to Title 28, United States
Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written
objections to the findings of fact, conclusions of law, and recommendation
contained herein must be filed within fourteen (14) days of service of same.
Responses to the objections must be filed within fourteen (14) days of service
of the objections. Failure to file objections to this Memorandum and
Recommendation with the presiding District Judge will preclude the parties
from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140
(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).
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