Keith Barkley v. STATE OF MARYLAND; TYRONE CROWDER, Warden; PAUL LEE; M.R.D.C.C.; D.P.S.C.S.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-6494
KEITH BARKLEY,
Plaintiff - Appellant,
v.
STATE OF MARYLAND; TYRONE CROWDER, Warden; PAUL LEE;
M.R.D.C.C.; D.P.S.C.S.,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-00957-GLR)
Submitted: August 25, 2015 Decided: October 14, 2015
Before KEENAN, WYNN, and HARRIS, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Keith Barkley, Appellant Pro Se. Nichole Cherie Gatewood,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Keith Barkley appeals the district court’s order denying
relief on his 42 U.S.C. § 1983 (2012) complaint. Barkley
asserts that the district court erred in granting Defendants’
motion to dismiss. We affirm in part, vacate in part, and
remand.
Defendant Paul Lee was not served in the district court and
did not move to dismiss the action. The district court
dismissed Barkley’s claims against Lee as untimely. “[T]he
statute of limitations is an affirmative defense, meaning that
the defendant generally bears the burden of affirmatively
pleading its existence.” Eriline Co. S.A. v. Johnson, 440 F.3d
648, 653 (4th Cir. 2006). Only in limited circumstances, such
as when it “evaluat[es] a complaint filed in forma pauperis
pursuant to § 1915,” may the district court consider a statute
of limitations defense sua sponte. Id. at 656. Here, because
this action was filed in forma pauperis pursuant to 28 U.S.C.
§ 1915 (2012), sua sponte consideration of timeliness was
permissible.
Nevertheless, the record does not show that the district
court complied with Fed. R. Civ. P. 4 before dismissing the
claims against Lee. “If a defendant is not served within 120
days after the complaint is filed, the court — on motion or on
its own after notice to the plaintiff — must dismiss the action

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without prejudice against that defendant or order that service
be made within a specified time.” Fed. R. Civ. P. 4(m)
(emphasis added). If the plaintiff can show good cause for his
failure to serve, “the court must extend the time for service
for an appropriate period.” Id. Accordingly, we conclude that
prior to dismissing Barkley’s claims against Lee, Barkley is
entitled to an opportunity to show good cause for failure to
serve.
We have reviewed the record and find no reversible error as
to the dismissal of Barkley’s remaining claims against the State
of Maryland, the Department of Public Safety and Correctional
Services, the Maryland Reception Diagnostic and Classification
Center, and Warden Tyrone Crowder. Accordingly, we vacate and
remand the district court’s judgment dismissing Barkley’s claim
against Lee, but affirm as to the remaining defendants for the
reasons stated by the district court. Barkley v. Maryland, No.
1:14-cv-00957-GLR (D. Md. Mar. 25, 2015). We dispense 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.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED

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