                               UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-6494


KEITH BARKLEY,

                 Plaintiff - Appellant,

          v.

STATE OF MARYLAND; TYRONE         CROWDER,     Warden;    PAUL   LEE;
M.R.D.C.C.; D.P.S.C.S.,

                 Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Baltimore. George L. Russell, III, District Judge.
(1:14-cv-00957-GLR)


Submitted:   August 25, 2015                 Decided:    October 14, 2015


Before KEENAN, WYNN, and HARRIS, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Keith Barkley, Appellant Pro Se.       Nichole Cherie Gatewood,
OFFICE OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       Keith Barkley appeals the district court’s order denying

relief    on    his    42     U.S.C.       § 1983      (2012)     complaint.             Barkley

asserts that the district court erred in granting Defendants’

motion to dismiss.             We affirm in part, vacate in part, and

remand.

       Defendant Paul Lee was not served in the district court and

did    not     move    to   dismiss        the       action.          The       district     court

dismissed      Barkley’s      claims       against         Lee   as    untimely.           “[T]he

statute of limitations is an affirmative defense, meaning that

the    defendant       generally       bears         the     burden        of     affirmatively

pleading its existence.”               Eriline Co. S.A. v. Johnson, 440 F.3d

648, 653 (4th Cir. 2006).                  Only in limited circumstances, such

as    when it     “evaluat[es]         a   complaint         filed     in       forma   pauperis

pursuant to § 1915,” may the district court consider a statute

of limitations defense sua sponte.                         Id. at 656.           Here, because

this action was filed in forma pauperis pursuant to 28 U.S.C.

§ 1915       (2012),    sua    sponte        consideration            of        timeliness     was

permissible.

       Nevertheless, the record does not show that the district

court complied with Fed. R. Civ. P. 4 before dismissing the

claims against Lee.            “If a defendant is not served within 120

days after the complaint is filed, the court — on motion or on

its own after notice to the plaintiff — must dismiss the action

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without prejudice against that defendant or order that service

be   made   within   a    specified    time.”      Fed.   R.   Civ.   P.   4(m)

(emphasis added).        If the plaintiff can show good cause for his

failure to serve, “the court must extend the time for service

for an appropriate period.”           Id.   Accordingly, we conclude that

prior to dismissing Barkley’s claims against Lee, Barkley is

entitled to an opportunity to show good cause for failure to

serve.

      We have reviewed the record and find no reversible error as

to the dismissal of Barkley’s remaining claims against the State

of Maryland, the Department of Public Safety and Correctional

Services, the Maryland Reception Diagnostic and Classification

Center, and Warden Tyrone Crowder.              Accordingly, we vacate and

remand the district court’s judgment dismissing Barkley’s claim

against Lee, but affirm as to the remaining defendants for the

reasons stated by the district court.             Barkley v. Maryland, No.

1:14-cv-00957-GLR (D. Md. Mar. 25, 2015).            We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before this Court and argument would

not aid the decisional process.

                                                          AFFIRMED IN PART,
                                                           VACATED IN PART,
                                                               AND REMANDED




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