LaKemper v. Huneycutt et al

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, )
)
vs. )
)
RONNIE HUNEYCUTT, et al., ) ORDER
)
Defendants. )
_______________________________ )
THIS MATTER is before the Court on the Plaintiff’s Response to Order
to Show Cause and Motion for Extension of Time to Serve Defendant
Jennifer Bruce [Doc. 30], the Magistrate Judge’s Memorandum and
Recommendation [Doc. 31], and the Plaintiff’s Objection to the Memorandum
and Recommendation [Doc. 32].
I. PROCEDURAL BACKGROUND
The Plaintiff filed the instant action pursuant to 42 U.S.C. § 1983
addressing incidents that allegedly occurred at the Alexander Correctional
Institution.1 On March 10, 2025, the Amended Complaint passed initial
review including against Defendant Jennifer Bruce, and the Court directed
1 The Plaintiff’s present address of record is at the Nash Correctional Institution.
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the Clerk to commence the procedure for waiver of service by the North
Carolina Department of Adult Corrections (“NCDAC”). [Docs. 11, 13]. The
NCDAC was unable to procure a waiver of service for Defendant Bruce, who
is no longer employed by NCDAC, and provided her last known address
under seal. [Doc. 19]. The Court instructed the U.S. Marshal to use all
reasonable efforts to locate and obtain service on Defendant Bruce. [Doc.
20].
A Deputy U.S. Marshal in another district twice attempted service on
Defendant Bruce at the address provided by NCDAC, but the Defendant
could not be located there, and a neighbor reported that Bruce no longer
lived there. [Doc. 23]. The unexecuted service return identified another
possible address for Bruce. [Id.].
The Clerk was directed to reissue a summons for Defendant Bruce at
the address identified in the unexecuted service return, and directed the U.S.
Marshal to use reasonable efforts to locate and obtain service on Bruce.
[Doc. 24]. A second unexecuted service return shows that the alternate
address was vacant, and an examination of old mail that had been left there
was not addressed to Bruce. [Doc. 27 at 3-4].
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On September 3, 2025, the Plaintiff was ordered to show cause, within
14 days, why Defendant Bruce should not be dismissed from this action for
lack of service pursuant to Fed. R. Civ. P. 4(m). [Doc. 28].
In response to the Order, the Plaintiff filed the instant Response and
Motion, opposing Defendant Bruce’s dismissal and seeking a 30-day
extension of the service deadline. [Doc. 30].
Pursuant to 28 U.S.C. § 636(b) and the Standing Orders of Designation
of this Court, the Honorable W. Carleton Metcalf, United States Magistrate
Judge, was designated to consider the Plaintiff’s Response and Motion. [Id.].
On October 22, 2025, the Magistrate Juge filed a Memorandum and
Recommendation recommending that the Plaintiff’s Motion seeking
additional time in which to serve Defendant Bruce be denied, and that
Defendant Bruce be dismissed from this action without prejudice pursuant to
Rule 4(m). [Doc. 31]. Specifically, the Magistrate Judge found that the
Plaintiff had failed to demonstrate good cause for failing to serve Defendant
Bruce, and that an extension of the service deadline was not warranted.
The parties were advised that any objections to the Magistrate Judge’s
Memorandum and Recommendation were to be filed in writing within 14 days
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of service. The Plaintiff timely filed objections on November 2, 2025.2 [Doc.
32]. This matter is ripe for disposition.
II. STANDARD OF REVIEW
The Federal Magistrate Act requires a district court to “make a de novo
determination of those portions of the report or specific proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). In
order “to preserve for appeal an issue in a magistrate judge’s report, a party
must object to the finding or recommendation on that issue with sufficient
specificity so as reasonably to alert the district court of the true ground for
the objection.” United States v. Midgette, 478 F.3d 616, 622 (4th Cir. 2007).
The Court is not required to review, under a de novo or any other standard,
the factual findings or legal conclusions of the magistrate judge to which no
objections have been raised. Thomas v. Arn, 474 U.S. 140, 150 (1985).
Additionally, the Court need not conduct a de novo review where a party
makes only “general and conclusory objections that do not direct the court to
a specific error in the magistrate’s proposed findings and recommendations.”
Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982).
2 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prisoner mailbox rule);
Lewis v. Richmond City Police Dep’t, 947 F.2d 733 (4th Cir. 1991) (applying prisoner
mailbox rule to § 1983 case).
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III. DISCUSSION
The Plaintiff objects to the Memorandum and Recommendation,
arguing that the Deputy U.S. Marshal failed to use all reasonable efforts to
serve Defendant Bruce. [Doc. 32]. He asks the Court to extend the service
deadline and to require the Marshals Service to use further efforts to locate
and serve her by “establishing contact via social media” and consulting with
the other Defendants. [Id. at 2].
The Court agrees with the Magistrate Judge’s conclusions that the
Plaintiff has failed to establish good cause for failing to serve Defendant
Bruce, and that an extension of the service deadline is not warranted. The
record establishes that the U.S. Marshals Service used reasonable and
diligent investigative efforts by making repeated service attempts at two
locations, asking neighbors about Bruce’s location, and examining old mail
at the second service address. This constitutes “reasonable effort” to locate
and serve Defendant Bruce. See Shirley v. Staubs, 812 F. App’x 162, 162-
63 (4th Cir. 2020) (citing Fed. R. Civ. P. 4(c)); Odom v. Ozmint, 517
F.Supp.2d 764, 768 (D.S.C. 2007) (the U.S. Marshals Service is required to
“expend a reasonable investigative effort to locate a [d]efendant once he is
properly identified”). The Plaintiff’s suggestion that the Marshals Service
should be required to perform specific additional investigation is rejected.
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Thus, after careful consideration of the Plaintiff’s Response and
Motion, the Magistrate Judge’s Memorandum and Recommendation, and
the Plaintiff’s Objections thereto, the Court finds that the Magistrate Judge’s
proposed conditions of law are correct and consistent with current case law.
Accordingly, the Court hereby overrules the Plaintiff’s Objections and
accepts the Magistrate Judge’s recommendation that an extension of time
should be denied and that Defendant Bruce should be dismissed from this
action without prejudice.
IV. CONCLUSION
For the forgoing reasons, the Plaintiff’s Objections to the Memorandum
and Recommendation are overruled, the Memorandum and
Recommendation is accepted, the request for an extension of time is denied,
and the action is dismissed without prejudice as to Defendant Jennifer Bruce.
ORDER
IT IS, THEREFORE, ORDERED that:
1. The Plaintiff’s Objections to the Memorandum and
Recommendation [Doc. 32] are OVERRULED.
2. The Memorandum and Recommendation [Doc. 31] is
ACCEPTED.
3. The Plaintiff’s Motion for Extension of Time [Doc. 30] is DENIED.
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4. The action is DISMISSED WITHOUT PREJUDICE as to
Defendant Jennifer Bruce.
IT IS SO ORDERED.
Signed: December 31, 2025
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