McCardell v. Harewood et al

Filing 21

MEMORANDUM ORDER: On or before JANUARY 17, 2018, Defendant Connections shall comply with the Court's October 26, 2017 order and file a response to Plaintiff's motion for injunctive relief. (D.I. 9 ). Plaintiff's request for counsel i s DENIED without prejudice to renew. (D.I. 15 ). On or before JANUARY 17, 2018, Defendant Connections (who has been served and entered its appearance) shall provide to the Court, under seal, the last known address for Dr. Adrian Harewood and, if kn own, whether he is still employed by Connections and, if so, the correctional facility where he is now located so that he may be served. Within twenty-one days from the filing of the sealed information, Plaintiff shall request Clerk to issue summon s for Dr. Adrian Harewood. Plaintiff shall return to Clerk USM 285 form(s) and service copies. Plaintiff is not required to fill in the "Serve At" section. Upon receipt, the U.S. Marshal shall personally serve process as directed by plai ntiff. The executed return of service or return for the defendant SHALL BE FILED UNDER SEAL. DDOC-DDOJ 90 days Service Order: In the alternative, since it may be the case that Dr. Adrian Harewood is a current or former employee of the Delaware De partment of Correction, the Clerk of Court shall also notify the Delaware Department of Correction ("DDOC") and the Delaware Department of Justice ("DDOJ") of this service order. (See Memorandum Order for further details). Signed by Judge Richard G. Andrews on 1/9/2018. (Attachments: # 1 Amended Complaint (D.I. 8), # 2 Memorandum Opinion (D.I. 10), # 3 Order (D.I. 11)) (fms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES N. MCCARDELL,
Plaintiff,
: Civil Action No. 17-1121-RGA

V.

ADRIAN HAREWOOD, et al.,
Defendants.
MEMORANDUM ORDER

At Wilmington this
1.

J_

day of January, 2018.

Plaintiff James N. Mccardell, an inmate at the James T. Vaughn

Correctional Center in Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983.
(D. I. 1). Plaintiff filed an amended complaint on October 23, 2017, and it is the
operative pleading. (D.I. 8). Plaintiff has filed a motion for injunctive relief and a
request for counsel. (D.I. 9, 15).
2.

Plaintiff was allowed to proceed on claims against medical defendants Dr.

Adrian Harewood and Connections Community Support Program, Inc. A service order
was entered on October 26, 2017. In the order, the medical defendants were ordered to
file a response to Plaintiff's motion for injunctive relief for medical care and a medical
diet within fourteen days of service. (D.I. 11 at p.3 at ,r 3). Connections has been
served and has filed a motion to dismiss but, to date, has not complied with the order to
respond to the motion for injunctive relief. It is ordered to do so.

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3.

Plaintiff seeks counsel. (0.1. 15). To date Dr. Harewood has not been

served and this case is in its early stages. Therefore, the request for counsel will be
denied without prejudice to renew upon service of Dr. Harewood.
4.

Connections has been served, but Dr. Harewood has not. (See 0.1. 18,

19). The United States Marshals Service unsuccessfully attempted to personally serve
Dr. Harewood. (See 0.1. 18). The USMS was advised that Dr. Harewood could not be
found at the address provided, and he is not an employee of Connections. Hence it is
not clear if Dr. Harewood is a former employee of Connections or if he is employed by
the Delaware Department of Correction, although it appears from Plaintiff's allegations
that during the relevant time period, Dr. Harewood was employed by Connections.
5.

The court has a responsibility to assist pro se plaintiffs in the service of

process. See Murray v. Pataki, 378 F. App'x 50, 52 (2d Cir. 2010). This court has
entered orders to assist pro se plaintiffs in obtaining addresses of defendants so that
service may be effected. See a/so In Re Johnson, 2001 WL 1286254 (O.C. Cir. Sept.
28, 2001) (district court ordered individual to indicate where and when he was available
for service of process or to provide district court with name and address of individual
authorized to accept service of process on his behalf); Palmer v. Stewart, 2003 WL
21279440 (S.D.N.Y June 4, 2003) (court ordered counsel for New York City to file an
affidavit containing name and address to assist prose plaintiff in service of process);
Garrett v. Miller, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003) (counsel for defendants

ordered to provide address to court to assist pro se plaintiff in obtaining service of
process). Additionally, the court's inherent power allows it to enter orders to manage its
own affairs "so as to achieve the orderly and expeditious disposition of cases." Hritz v.
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Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984) (citing Link v. Wabash R.R. Co., 370
U.S. 626, 629-31 (1962). Without the correct address, Plaintiff cannot effect service.
THEREFORE, IT IS ORDERED that:
1.

On or before JANUARY 17, 2018, Defendant Connections shall comply

with the Court's October 26, 2017 order and file a response to Plaintiff's motion for
injunctive relief. (0.1. 9).
2.

Plaintiff's request for counsel is DENIED without prejudice to renew. (0.1.

15).
IT IS FURTHER ORDERED that:
1.

On or before JANUARY 17, 2018, Defendant Connections (who has been

served and entered its appearance) shall provide to the Court, under seal, the last
known address for Dr. Adrian Harewood and, if known, whether he is still employed by
Connections and, if so, the correctional facility where he is now located so that he may
be served.
2.

Within twenty-one days from the filing of the sealed information, Plaintiff

shall request the Clerk of Court to prepare a summons for Dr. Adrian Harewood, and
submit to the Court a complete U.S. Marshal-285 form as well a copy of the amended
complaint {0.1. 8) for personal service upon Dr. Adrian Harewood pursuant to Fed. R.
Civ. P. 4(b), (c)(1 ), (c)(3), and (e). Plaintiff is not required fill in the "Serve At" section.
The "Serve At" section will be completed by the Court. Plaintiff is notified that the
USMS will not personally serve the amended complaint until the "U.S. Marshal 285"
form and a copy of the amended complaint have been received by the Clerk of Court.
Failure to timely provide the "U.S. Marshal 285" form and copy of the amended
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complaint for Defendant may result in his dismissal pursuant to Federal Rule of Civil
Procedure 4(m).
3.

Upon receipt of the request for issuance of summons, the USM-285 form,

and a copy of the amended complaint required by paragraph 2 above, the Clerk of
Court shall issue the summons and transmit the summons, USM-285 form, copy of the
amended complaint (D.I. 8), the October 26, 2017 memorandum opinion and order (D.I.
10, 11 ), the September 15, 2017 filing fee order (D. I. 6), and this memorandum order to
the USMS for immediate service pursuant to Fed. R. Civ. P. 4(c). The USMS shall
personally serve process and a copy of this order upon Defendant pursuant to Rule 4 of
the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c).
4.

Within ten days after personal service is effected, the USMS shall file the

return of service for defendant, along with the costs incurred in effecting service on said
defendant. Said costs shall be enumerated on the USM-285 form. The executed return
of service or return for the defendant SHALL BE FILED UNDER SEAL.
IT IS FINALLY ORDERED that:
1.

In the alternative, since it may be the case that Dr. Adrian Harewood is a

current or former employee of the Delaware Department of Correction, the Clerk of
Court shall also notify the Delaware Department of Correction ("DDOC") and the
Delaware Department of Justice ("DDOJ") of this service order. As an attachment to
this order, the Clerk of Court shall serve an electronic copy of the amended complaint
copy of the amended complaint (D.I. 8), and the October 26, 2017 memorandum
opinion and order (D.I. 10, 11 ),upon the DOC and the DDOJ. If Defendant Dr. Adrian

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Harewood is employed by the DOC, the Court requests that Dr. Adrian Harewood waive
service of summons.
2.

The DDOC and/or the DDOJ shall have ninety (90) days from entry of this

service order to file a waiver of service executed and/or a waiver of service unexecuted.
Upon the electronic filing of service executed, defendant shall have sixty (60) days to
answer or otherwise respond to the pro se complaint.
3.

In those cases where a waiver of service unexecuted is filed, the DDOC

and/or DDOJ shall have ten (10) days from the filing of the waiver of service
unexecuted, to supply the Clerk of Court with the last known forwarding addresses for
former employees, said addresses to be placed under seal and used only for the
purpose of attempting to effect service in the traditional manner.

UNITED STATE

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