Young v. May, et al

Filing 119

Order denying the 114 MOTION for Default against defendant Joe Carl Jordan. Defendant Jordan is ordered by 6/13/2013 to file an Amended Certificate of Service reflecting that he has served plaintiff with a copy of the Brief in Support of Motion to Dismiss (Doc. 111). Responses to the 105 Motion to Dismiss and the 111 Brief are due by 6/28/2013, Replies due by 7/5/2013. The 115 MOTION For Joinder of Party is denied and the 116 MOTION for Issuance of Subpoena is denied. Signed by Chief Judge William H. Steele on 6/10/2013. Copy mailed to Plaintiff. (tgw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
DAVID M. YOUNG,
Plaintiff,
v.
GEORGE MAY, et al.,
Defendants.

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CIVIL ACTION 13-0091-WS-M

ORDER
This matter comes before the Court on the following motions filed by pro se plaintiff,
David M. Young: Motion for Default (doc. 114), Motion for Joinder of Party as Defendant (doc.
115), and Motion for Issuance of Subpoena (doc. 116).
With respect to the Motion for Default, Young requests that a default be entered against
the lone remaining defendant, Joe Carl Jordan, for failing to serve a copy of his Brief in Support
of Motion to Dismiss (doc. 111) on plaintiff as required by Rule 5(a), Fed.R.Civ.P. The
Certificate of Service appended to Jordan’s Brief contains defendant’s certification that Young
was served with a copy of said filing via “U.S. Efile.” (Doc. 111, at 3.) Such certification is in
error, because this District Court’s electronic filing system does not transmit electronic notice of
filings to pro se prisoners; rather, it remains incumbent on the filer to serve those filings on the
pro se party via U.S. Mail, personal delivery, or the like. See Rule 5(b)(2), Fed.R.Civ.P.;
Administrative Procedure for Filing, Signing, and Verifying Documents by Electronic Means in
the United States District Court for the Southern District of Alabama, § II.B.3. (“A party who is
not a registered participant of the System is entitled to a paper copy of any electronically filed
pleading, document, or order. The filing party must therefore provide the non-registered party
with the pleading, document, or order according to the Federal Rules of Civil Procedure.”).
To remedy this oversight, defendant Jordan is ordered, on or before June 13, 2013, to
file an Amended Certificate of Service reflecting that he has served Young with a copy of the
Brief via a proper method, and the date of same. Jordan is further ordered to implement

appropriate measures to ensure that Young is properly served with paper copies of any and all
future filings Jordan may make in this matter, in accordance with the foregoing rules. Because
Young has not received a copy of the Brief and cannot meaningfully respond to the Motion to
Dismiss until he does, the briefing schedule fixed via Order (doc. 112) entered on May 24, 2013
is amended as follows: Any party opposing Jordan’s Motion to Dismiss must file a response,
supported by legal authority as appropriate, on or before June 28, 2013. Movant will be allowed
until July 5, 2013 to file a reply, at which time the Motion to Dismiss will be taken under
submission.
Notwithstanding the foregoing, the Court cannot agree with plaintiff’s characterization of
defendant’s oversight with respect to the Certificate of Service as being tantamount to an
“intentional violation of Rule 5 & this courts order” (doc. 114, at 2). Defendant’s transgression
is certainly not the sort of willful flouting of court orders and procedural rules that might warrant
imposition of the extremely harsh, draconian sanction of default; therefore, plaintiff’s Motion for
Default (doc. 114) is denied.
Plaintiff has also filed a Motion for Joinder of Party as Defendant (doc. 115), in which he
requests leave to join as a party defendant the “Unknown U.S. Marshall [sic]” who “took it upon
himself to include in the warrant of arrest a prior, exhausted prison number related to Plaintiff.”
(Doc. 117, at 2.) Fictitious-party pleading is generally prohibited in federal court. See, e.g.,
Richardson v. Johnson, 598 F.3d 734, 738 (11th Cir. 2010) (“As a general matter, fictitious-party
pleading is not permitted in federal court.”); Thomas v. Allred, 2012 WL 5379179, *4 (N.D. Ala.
Oct. 26, 2012) (“Thomas’s claims against the ‘unknown prosecutor’ are also DISMISSED
because fictitious-party pleading is not permitted in federal court.”) (citation and internal
quotation marks omitted). Nor has plaintiff provided any descriptor of this “Unknown U.S.
Marshall [sic]” that might facilitate service of process on that individual or enable his or her
identity to be revealed via the discovery process. Indeed, plaintiff’s own statement of
“Allegations” that he intends to assert against this new fictitious defendant identifies no factual
basis whatsoever for his assumption that a U.S. Marshal (or any employee of same) was

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responsible for writing the challenged information on the subject warrant. The Motion for
Joinder of Party as Defendant (doc. 115) is therefore DENIED.1
Plaintiff’s Motion for Issuance of Subpoena (doc. 116) seeks issuance of a Subpoena
directed to “Unknown U.S. Marshall [sic]” to identify his or her name, submit to a handwriting
analysis and deposition, and so on. Service of a subpoena on a fictitious person is impossible,
where (as here) plaintiff has not provided sufficient description or identification of that person,
or indeed any reason to believe that the person whom he wishes to sue is (or was) a U.S. Marshal
or an employee of same. The Motion for Issuance of Subpoena is DENIED.
DONE and ORDERED this 10th day of June, 2013.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

1

Aside from the fictitious defendant problem, there are obvious infirmities in
plaintiff’s suggestion that his Fifth Amendment rights were violated by this unidentified
defendant’s act of recording an accurate, correct federal register number in the margins of an
arrest warrant. As this Court observed in its May 22 Order (doc. 110), “The register number
written on the arrest warrant was not fraudulent. It was, instead, the register number that the
BOP assigned to Young in serving his 1990 federal sentence, and is the same number that Young
admits the BOP assigns to him today. Thus, the register number was an accurate, correct
identifier for Young. Contrary to plaintiff’s theory, inclusion of that register number on the
arrest warrant was not a representation … that Young was then serving a federal or state
sentence, supervision, probation or parole. It says nothing of the sort, and supports no such
reasonable inference.” (Doc. 110, at 10 n.11.) Thus, any attempt by Young to amend the
Complaint to join a defendant on this theory would fail on futility grounds because plaintiff has
not stated a cognizable Fifth Amendment claim against anyone based on the mere recital of an
accurate numerical BOP identifier for him in the subject arrest warrant. Furthermore, any
attempt by plaintiff to join a new individual defendant now is obviously futile because of the
glaring limitations defect inherent in bringing a Bivens claim against a new defendant in June
2013 for a wrong that allegedly occurred in August 2009. See generally Dennis v. U.S. Dep’t of
Justice, 2007 WL 1053505, *2 (11th Cir. Apr. 10, 2007) (“A Bivens action is subject to the same
statute of limitations that would apply to a complaint brought pursuant to § 1983. … In Alabama,
the residual personal injury limitation period is two years.”) (citations omitted). The futility of
the proposed joinder stands as a separate, independent reason for denying plaintiff’s request to
join “Unknown U.S. Marshall [sic]” as a party defendant.

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