FRANK D. WHITNEY, Chief District Judge.
Plaintiff is a North Carolina prisoner alleging that his religious rights were infringed while he was incarcerated at the Alexander Correctional Institution in 2014 and 2015. (Doc. No. 1). He is proceeding pro se and in formal pauperis. (Doc. No. 3). The Court conducted an initial review of the Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) and, on September 18, 2017, determined that the claims based on the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA"), were sufficient to proceed against Defendants George T. Solomon, Betty Brown, Swindell Edwards, Daniel Redding, and Susan White. (Doc. No. 7). The Court instructed Plaintiff to complete and return to the Court summons forms for service of process. (Doc. Nos. 7, 8). Plaintiff returned summons forms addressed to "Kenneth Lassiter — Director N.C. Department of Public Safety — Prisons" in Raleigh, "Betty Brown — Chaplaincy Services Director NC Department of Public Safety — Prisons" in Raleigh, "Swindell Edwards — Chaplaincy Services Director — NC Department of Public Safety — Prisons" in Raleigh, "Daniel Redding, Clinical Chaplain II, Alexander Correctional Institution," and "Ken Beaver, Superintendent, Alexander Correctional, Institution," which the Clerk of Court issued electronically to the U.S. Marshal for service of process on November 3, 2, 2017. (Doc. No. 9).
On December 8, 2017, counsel filed a notice of appearance on behalf of Defendants Brown, Edwards, and Redding, and filed the instant Motion to Dismiss supported by a memorandum of law and affidavits. (Doc. No. 10, 11). The Court issued a
"Absent waiver or consent, a failure to obtain proper service on the defendant deprives the court of personal jurisdiction over the defendant."
Rule 4(e) of the Federal Rules of Civil Procedure provides as follows:
Fed. R. Civ. P. 4(e).
Rule 4(j)(1) of the North Carolina Rules of Civil Procedure prescribes the manner by which service may be effectuated in North Carolina, directing that service upon a natural person shall be as follows:
N.C.R. Civ. P. 4(j)(1).
Rule 4(j)(1)(d) requires the summons that is deposited with a designated delivery service to be "addressed to the party to be served, delivered to the addressee, and obtain a delivery receipt." N.C. R. Civ. P. 4(j)(1)(d). Although service of process should correctly state the name of the parties, a mistake in the names is not always a fatal error, and as a general rule a mistake in the given name of a party who is served will not deprive the court of jurisdiction.
In support of the Motion to Dismiss, Defendants allege that a FedEx package was delivered to the Gatehouse at Alexander C.I., that was addressed to "Beaver, Redding, Edwards, Brown." (Doc. No. 12-1 at 3). Defendant Kenneth Beaver, who is currently the Superintendent of Alexander C.I., opened the package and discovered summonses issued to himself as well as Defendants Redding, Edwards, and Brown. (Doc. No. 12-2 at 2). There are two employees at Alexander C.I. with the surname "Beaver," and two with the surname "Redding." (Doc. No. 12-1 at 2). Neither Defendant Edwards nor Defendant Brown are employed at Alexander C.I. (Doc. No. 12-1 at 2). Defendants argue that Defendant Beaver is not a proper party to this action because he was not named anywhere in the Complaint, Beaver was not mentioned in the Court's frivolity review, and therefore, issuance of a summons was in error and, in any event, service was defective. Moreover, services as to all Defendants was defective because the U.S. Marshal's use of a single FedEx envelope addressed to "Beaver, Redding, Edwards, Brown," and delivered to the Gatehouse of Alexander C.I., does not comply with Rules 4(e) of the Federal Rules of Civil Procedure or Rule 4(j) of the North Carolina Rules of Civil Procedure. Defendants therefore ask that Plaintiff's claims be dismissed against Defendants for lack of personal jurisdiction and insufficiency of service of process.
Plaintiff filed a Response arguing that service was sufficient pursuant to Rule 4(j)(1)(b) and (d). With regards to Kenneth Beaver, Plaintiff argues that he was permitted to substitute Kenneth Beaver as a Defendant because he replaced Susan White as Administrator at Alexander C.I. Finally, Plaintiff notes that he is incarcerated and dependent on the U.S. Marshal to complete sufficient service of process.
As a preliminary matter, the Court agrees with Plaintiff that his official-capacity claims against Defendant White were automatically substituted for her successor, Beaver, when he replaced her as Administrator of Alexander C.I.
With regards to sufficiency of service, Plaintiff's reliance on Rule 4(j)(1)(b) is misplaced. The package was delivered to the Alexander C.I. gatehouse where Correctional Officer Paul Herman accepted it. (Doc. No. 12-2 at 2). Plaintiff relies only on his own conclusory and unsupported contentions to argue that Officer Herman was somehow authorized to accept service on behalf of any of the Defendants. Plaintiff has thus failed to satisfy his burden that service complied with Rule 4.
Plaintiff's citation to Rule 4(j)(1)(d) is more persuasive. Although the FedEx package was addressed to "Beaver, Redding, Edwards, Brown," and there are apparently two employees with the surname "Beaver" at Alexander C.I., the package reached the correct individual at his place of employment, and he opened it and received a summons addressed to him. Service was sufficient under these circumstances.
Even though Defendants Redding, Edwards, and Brown have not been served, the Court will nevertheless deny Defendants' Motion to Dismiss. Plaintiff is incarcerated and proceeding pro se and in forma pauperis. Plaintiffs who are proceeding in forma pauperis must rely on the district court and the U.S. Marshals Service to effect service of process according to 28 U.S.C. § 1915.
The Court will not penalize Plaintiff for having relied on the Clerk of Court and the U.S. Marshals Service to effect service of process on his behalf.
Therefore, the Court will instruct the U.S. Marshal to use reasonable efforts to locate and obtain personal service on Defendants Solomon, Brown, Edwards, Redding, and White, in accordance with Rule 4.
Further, the Court notes on sua sponte review of the record that no return of service has been entered for Defendants George T. Solomon or Susan R. White. The U.S. Marshal is also instructed to use reasonable efforts to locate and serve these Defendants.
For the reasons stated herein, Defendant's Motion to Dismiss will be denied with regards to Defendant Beaver in his official capacity, but granted as to Defendants Redding, Edwards, and Brown. The U.S. Marshal will be instructed to use reasonable efforts to effectuate service on Defendants Redding, Edwards, Brown, Solomon, and White.