Case: 15-10073    Date Filed: 09/14/2015   Page: 1 of 6


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 15-10073
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 3:14-cv-00188-BJD-MCR



JAMES ANTHONY ALLEN,

                                                            Plaintiff-Appellant,

                                   versus

SERGEANT HOWARD W. CAREY,
OFFICER MCKINNEY,
SERGEANT KYLE KNIGHT,
OFFICER W. HUBBARD,

                                                         Defendants-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                            (September 14, 2015)

Before MARCUS, WILLIAM PRYOR, and ROSENBAUM, Circuit Judges.
              Case: 15-10073    Date Filed: 09/14/2015   Page: 2 of 6


PER CURIAM:

      James Anthony Allen, a Florida state prisoner proceeding pro se, appeals the

district court’s dismissal without prejudice of his 42 U.S.C. § 1983 civil rights

lawsuit for failure to describe sufficiently the identities or whereabouts of the

defendants so as to allow the U.S. Marshals Service to effect service of process.

Because the district court did not determine whether the defendants could be

located by the U.S. Marshal with reasonable effort, we vacate and remand.

                                         I.

      In his complaint, Allen named as defendants Sergeant Howard W. Carey,

Officer McKinney, Sergeant Kyle Knight, and Officer W. Hubbard. He identified

the defendants as employees of the Florida State Prison in Raiford, Florida, and he

listed the address of the prison for each. The district court granted Allen leave to

proceed in forma pauperis (“IFP”) and assessed a partial filing fee, and later

directed the U.S. Marshals Service to serve the defendants.

      The U.S. Marshal returned unexecuted the summons for each of the four

defendants. According to the U.S. Marshal, the defendants could not be served for

the following reasons: (1) there were two prison employees with the last name

“McKinney,” so a first name was needed; (2) Hubbard could not be identified as

an employee of the Florida Department of Corrections; (3) Carey was out on

extended medical leave; and (4) Knight was out on military service leave for more


                                         2
              Case: 15-10073    Date Filed: 09/14/2015   Page: 3 of 6


than one year. On September 18, 2014, a magistrate judge ordered Allen to

respond within 21 days with McKinney’s first name or initial and the locations of

the other three defendants, or face dismissal of his complaint without further

notice. On September 29, Allen filed a response stating that he had requested, but

did not know, McKinney’s first name, and that he did not know the whereabouts of

Hubbard or Carey. He also submitted a request for discovery, asking to have the

prison provide the U.S. Marshal with the present or last known addresses of the

defendants and also prison logs relevant to Allen’s allegations that would help

identify the first names of McKinney and Hubbard.

      On October 20, the district court issued an order striking Allen’s request for

discovery and dismissing Hubbard, Carey, and Knight from the action without

prejudice based on Allen’s failure to identify their whereabouts. The court directed

Allen to provide McKinney’s first name by November 18 and cautioned that

failure to do so would result in dismissal without further notice. Allen moved for

appointment of counsel and timely responded that he was unable to determine

McKinney’s first name.      The district court then dismissed the case without

prejudice on December 1 because “Plaintiff has failed to provide the Court with

sufficient information to successfully execute process on Defendant McKinney, the

only remaining Defendant in the case.” Doc. 24 at 1.




                                         3
                Case: 15-10073       Date Filed: 09/14/2015      Page: 4 of 6


       On appeal, Allen argues that the district court abused its discretion by not

allowing him discovery to help identify the defendants and by not allowing him to

plead a fictitious party in place of McKinney until he identified his first name. He

also argues that the U.S. Marshal was required to try to locate the defendants that

he identified. As a pro se litigant, he asserts, he could not obtain the defendants’

home addresses, but he did provide the district court with the only address he

knew, which was the state prison. 1

                                              II.

       The district court did not identify the mechanism for dismissal for failure to

serve, but Rule 4(m) of the Federal Rules of Civil Procedure governs. We review a

district court’s sua sponte dismissal for failure to effect service under Rule 4(m)

for an abuse of discretion. Richardson v. Johnson, 

, 738 (11th Cir.

2010). We will affirm unless we conclude that the district court has made a clear

error of judgment or has applied the wrong legal standard. 

4(m),

the court “must dismiss the action without prejudice . . . or order that service be

made within a specified time” if a defendant was not served within 120 days after

the complaint was filed. Fed. R. Civ. P. 4(m). If a plaintiff shows “good cause”




       1
          In a supplemental filing on appeal, Allen represents that both Carey and Knight have
returned from their respective leave and are currently working at the state prison he originally
identified.
                                               4
              Case: 15-10073     Date Filed: 09/14/2015   Page: 5 of 6


for the failure, however, “the court must extend the time for service for an

appropriate period.” 

proceeding IFP under § 1915 is entitled to have a U.S. Marshal or

other appointed person effect service. See 28 U.S.C. § 1915(d); Fed. R. Civ. P.

4(c)(3). “[T]he failure of the United States Marshal to effectuate service on behalf

of an in forma pauperis plaintiff through no fault of that plaintiff constitutes ‘good

cause’ for the plaintiff's failure to effect timely service within the meaning of Rule

4(m).” Rance v. Rocksolid Granit USA, Inc., 

, 1288 (11th Cir.

2009). We have said that it is unreasonable to expect prisoners proceeding pro se

to provide the current addresses of prison-guard defendants who no longer work at

a prison. 

(citing Sellers v. United States, 

, 602 (7th Cir. 1990)). Thus, so long as the U.S. Marshal can locate the

defendant with “reasonable effort,” a plaintiff establishes “good cause” under Rule

4(m) by providing enough information to identify the prison-guard defendant. 

      Here, we conclude that the district court abused its discretion in dismissing

Allen’s case. Allen largely identified the defendants and provided information

relevant to distinguishing which of the two McKinneys was the subject of Allen’s

complaint. In dismissing all of Allen’s claims, the district court failed to determine

whether the defendants can be located with reasonable effort. See 

                                          5
              Case: 15-10073    Date Filed: 09/14/2015   Page: 6 of 6


vacate the dismissal of Allen’s complaint and remand for the court to make that

determination. If so, they must be served.

      VACATED AND REMANDED.




                                         6