REPORT AND RECOMMENDATION

BRISTOW MARCHANT, Magistrate Judge.

This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983.1 Plaintiff, an inmate with the South Carolina Department of Corrections (SCDC), alleges violations of his constitutional rights by the named Defendants, all employees of the SCDC.

On January 23, 2018 a proper form order was entered wherein the Plaintiff was directed to complete summons and a Form USM 285 for each Defendant for service of process. Plaintiff was also granted IFP status in that Order. See Court Docket No. 13. Plaintiff thereafter submitted proposed service documents for the Defendants on February 5, 2018, and an Order authorizing service by the United States Marshal was entered on February 6, 2018. That Order specifically provided that, although service by the Marshal was authorized in light of Plaintiff's IFP status, that the United States Marshal cannot serve an inadequately identified Defendant, and that unserved Defendants "may be dismissed as parties to this case if not served withing the time limit governed by Rule 4(m) and this Order". See Court Docket No. 19.

On March 27, 2018, the Summons were returned executed for the Defendants Scott and Smith, but the Summons was returned unexecuted for the Defendant Curry. The serve return for the Defendant Curry noted, in the "Remarks" section, that the Marshal and the SCDC "could not locate defendant in system". See Court Docket No. 24. The Court thereafter entered an Order that same date advising the Plaintiff that the summons had been returned for the Defendant Curry, unexecuted, because "after reasonable effort the Marshal [had] been unable to locate this Defendant", and notifying Plaintiff that he should provide any additional information or location information he may have for this Defendant without delay. Plaintiff was further again advised in that Order that a Defendant may be dismissed pursuant to Rule 4(m) if they are not served with process. See Court Docket No. 25.

On April 4, 2018, counsel for the Defendants filed a motion to dismiss Curry as a party Defendant for lack of jurisdiction due to the failure of this Defendant to be served with process. Defendant's motion noted, inter alia, that "[u]pon information and belief, Defendant Curry has been improperly identified. Major Joseph Curry cannot be located or identified after a search of the employee records of the South Carolina Department of Corrections". See Defendants' Motion, p. 3, n. 3. As the Plaintiff is proceeding pro se, a Roseboro order was entered by the Court on April 5, 2018, advising Plaintiff of the importance of a dispositive motion and of the need for him to file an adequate response. Plaintiff was specifically advised in that Order that if he failed to file an adequate response, the Defendants' motion may be granted. The ninety (90) day period for service on this Defendant thereafter expired on May 6, 2018.2 Plaintiff filed memoranda in opposition to the Defendants' motion on May 21, 2018, and again on May 25, 2018.

Pursuant to Rule 4(m), Fed.R.Civ.P., "[i]f a defendant is not served within ninety (90) days after the complaint is filed, the court — on motion or on its own after notice to the Plaintiff — must dismiss the action without prejudice against that Defendant . . . but if the Plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Here, the time for service began to run on February 6, 2018, and the ninety (90) day period for service provided by Rule expired on May 6, 2018. However, there is no evidence in the file that the Defendant Joseph Curry has ever been served with process in this case. The summons executed for this Defendant was returned uxexecuted, and both the unexecuted return as well as the Defendants' motion to dismiss indicate that a "Major Joseph Curry" cannot be located or identified after a search of the employee records of the SCDC. Moreover, in his response to the Defendants' motion filed May 21, 2018, Plaintiff fails to even address this issue, while in his response filed May 25, 2018, Plaintiff asks that his "case" not be dismissed because he did not have a full understanding of how to fill out the Form 285, but then goes on to reiterate that the individual who he is intending to sue is "Major Joseph Curry".

Hence, Plaintiff has failed to show good cause for his failure to obtain service on this Defendant, as it is readily apparent that the United States Marshal and the SCDC have been unable to locate a "Major Joseph Curry" employed by the SCDC, and Plaintiff has provided no further identifying information for this purported Defendant. Therefore, based on the foregoing, it is recommended that the Defendants' motion to dismiss be granted, and that Joseph Curry be dismissed as a party Defendant in this case, without prejudice. Rule 4(m), Fed.R.Civ.P.

The parties are referred to the Notice Page attached hereto.

Notice of Right to File Objections to Report and Recommendation

The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must `only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).

Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:

Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).