FILED
in the Middle District of
IN THE UNITED STATES DISTRICT COURT North Carolina
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA May 21,6,2020
October 2021
1:27 pm
2:29 pm
Clerk, US District Court
By: __________
KM
JSB
INRE: )
PROCEDURES FOR SERVICE OF )
PROCESS IN STATE PRISONER ) STANDING ORDER 19
CIVIL RIGHTS CASES PURSUANT )
TO 28 U.S.C. § 1915(d) )
This Standing Order memorializes an agreement this court has reached with the North
Carolina Department of Public Safety ("DPS") concerning service of process in state prisoner
civil rights cases. Whenever the court reviews "a complaint in a civil action in which a prisoner
seeks redress from a governmental entity or officer or employee" of DPS pursuant to 28
U.S.C. § 1915A and allows any portion of the complaint to proceed, 28 U.S.C. § 1915(d) vests
the responsibility for service with the court and its officers. In this district, the court provides
summonses and the complaint to the United States Marshal Service ("USMS") to send to
defendants by certified mail.
In recent years, the court has observed an increase in USMS service attempts that
initially fail. A significant percentage of all summonses and complaint sent by certified mail
from the USMS to state defendants at their purported work addresses have been returned to
the court unexecuted. The court then must make further efforts to identify and serve
defendants, which often includes seeking a response from the North Carolina Attorney
General and DPS and reissuing summonses for further service attempts. These efforts delay
resolution of cases and interfere with the court's preference that defaults be avoided and that
claims and defenses be disposed of on their merits.
In an effort to promote judicial efficiency and conserve state and federal resources, the
court reached out to DPS officials and representatives of the North Carolina Attorney
General's Office, and those officials and representatives requested that the Court adopt a plan
similar to the processes in place in the Eastern District of North Carolina and the Western
District of North Carolina for these types of cases. This order memorializes that plan, which
is agreed to by DPS and the North Carolina Attorney's General's Office, and which the Court
now adopts. The Court therefore ORDERS as follows:
1. This order applies only to civil rights actions filed by North Carolina state prisoners
against current and former DPS employees.
2. When the court allows any portion of a state prisoner's civil rights case to proceed
past screening, the clerk shall prepare and file requests for waivers of service for all
remaining defendants and transmit electronic copies of the requests for waiver of
service, the complaint, and the order allowing the case to proceed to an email inbox
designated by DPS. A DPS employee shall acknowledge receipt of the transmission
by a return email by 5:00 p.m. on the following business day.
3. DPS shall have sixty (60) days from the filing of the request for waiver of service
to accept or refuse service of process upon the DPS employee and make the
appropriate filing as set out below. DPS must undertake a good-faith effort to
further identify the named or intended defendants where needed and to procure
defendants' signatures on the waivers of service. Additionally, the North Carolina
Attorney General shall use this time to commence its determination concerning
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whether to undertake representation of any of the defendants pursuant to the
Defense of State Employees Act.
a. When DPS has obtained a defendant's waiver of service, DPS or the North
Carolina Attorney General shall file the waiver with the court, under seal if
necessary. Any defendant who files a waiver of service pursuant to this
standing order shall have sixty days from the date of the filing of the waiver
to answer or otherwise respond to the complaint unless otherwise ordered
by the court.
b. Where DPS cannot procure a defendant's waiver of service for any reason,
such as a defendant who is no longer a DPS employee, DPS or the North
Carolina Attorney General shall file a response that either provides the court
with the full name and last known address of the defendant, or informs the
court that no such address is available and describes DPS's efforts to obtain
the information. DPS or the Attorney General may provide the information
under seal if necessary, and the court will disclose the information only to
anyone engaged in providing service of process.
6th_ day of October, 2021.
SO ORDERED. This the _
Thomas D. Schroeder, Chief Judge William L. Osteen, Jr., Judge
United States District Court United States District Court
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Catherine C. Eagles, Jud,.,....______ Loretta C. Biggs, Judge
United States District Court United States District Court
. Carlton Tilley, Jr., Senior J
United States District Court
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