High v. Vaught ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JERRY LYNN HIGH,
Plaintiff-Appellant,
v.
RALPH VAUGHT, Administrator of
No. 95-6555
Horry County Jail; SHERLY ANN
MARTIN, Nurse of Horry County
Jail,
Defendants-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
David C. Norton, District Judge.
(CA-91-3723-4-18AJ)
Submitted: July 25, 1995
Decided: April 19, 1996
Before NIEMEYER, HAMILTON, and MOTZ, Circuit Judges.
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Affirmed in part, vacated in part, and remanded by unpublished per
curiam opinion.
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COUNSEL
Jerry Lynn High, Appellant Pro Se. Mark Wilson Buyck, Jr.,
L. Hunter Limbaugh, WILLCOX, MCLEOD, BUYCK, BAKER &
WILLIAMS, P.A., Florence, South Carolina, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Jerry Lynn High appeals from district court orders dismissing
Defendant Martin and granting summary judgment in favor of Defen-
dant Vaught. Both orders were entered by adopting a magistrate
judge's recommendations. We affirm the latter but vacate the former
and remand for further proceedings.
High filed a complaint alleging that, while a pre-trial detainee, he
was handcuffed in his underwear to an outside fence by an officer
Floyd due to his attempts to gain medical care. He also alleged that
Sherly Ann Martin* denied him medical care. The district court dis-
missed Defendant Martin for improper service of process and because
no such person ever worked for the jail where High allegedly was
mistreated. The district court erred.
First, it was the district court that directed the United States Mar-
shal's Service to serve the summons and complaint in this action
because High was proceeding in forma pauperis. See Fed. R. Civ. P.
4. Thus, High is not responsible for the errors in service, nor is it sur-
prising that he did not explain his failure properly to serve any
unnamed but possibly responsible defendant during the 120 days fol-
lowing the filing of the complaint.
Second, the district court did not follow the dictates of Gordon v.
Leeke, 574 F.2d 1147, 1152-53 (4th Cir.), cert. denied, 439 U.S. 970(1978), at the time it dismissed Martin. While Martin may not exist,
there was evidence in the record that an Officer Sharon Martin did
work at the jail, and that there was a nurse, whose name was Gloria
Ann Anderson, at the jail at the time High was detained there. High
_________________________________________________________________
*Martin's name has been spelled differently in pleadings and styles in
the court below. We follow the district court clerk's styling.
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should have been given an opportunity to name the proper party and
been advised how to proceed. Id.. Further, the district court continued
with the action only with respect to a single defendant, Vaught, when
the body of the complaint named another officer, Floyd, directly
responsible for High's being chained to the fence. Again, Gordon
directs more from the district court where such an allegation is made:
High should have been advised that the other officer was not named
in the complaint style and informed how to proceed. Id. Because the
district court failed to follow Gordon, we vacate the district court
order dismissing Martin to the extent that the action be remanded for
proceedings in accordance with Gordon. We express no opinion on
the merits of High's claims against properly named parties.
After the dismissal of Martin, the district court granted summary
judgment in favor of Defendant Vaught. We have reviewed the record
and find no reversible error with regard to that order. We, therefore,
affirm that order on the reasoning of the district court. High v.
Vaught, No. CA-91-3723-4-18AJ (D.S.C. Mar. 28, 1995). We dis-
pense with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and argument
would not aid the decisional process.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED
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