Palmer v. Owens et al

Filing 15

ORDER Vacating 12 Order and Directing service of a copy of the summons and complaint, along with Plaintiff's pleading at Tab 14 , be served upon Baldwin State Prison Warden Carl Humphrey. Warden Humphrey shall have 30 days from the date of this order to provide the Court with his findings. Ordered by Judge C. Ashley Royal on 2/9/10. (lap)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION : : CHARLES A. PALMER, : Plaintiff : : VS. : : : UNKNOWN DEFENDANTS, : Defendants : _____________________________________

NO. 5:09-CV-326 (CAR) ORDER

On January 20, 2010, this Court dismissed the instant civil rights action without prejudice after plaintiff CHARLES A. PALMER failed to provide names, or other identifying information, to allow the Court to serve process on the defendants, all of whom were unidentified "CERT team officers." Plaintiff now files a document wherein he provides a physical description of two defendants. Plaintiff describes the Doe defendants as follows: John Doe # 1 is white male with brown hair, 30-35 years of age, 260-285 pounds, and 6'5" to 6-7" in height, and John Doe #2 is a white male with brown hair, 30-40 years of age, 200-240 pounds, and 5'-5"to 5'-8" in height. According to plaintiff, both Does are CERT team officers who were allegedly involved in the " disturbance" at Baldwin State Prison on January 12, 2009, and allegedly used excessive force against plaintiff. The Eleventh Circuit Court of Appeals has held that a plaintiff may sue an unknown defendant only when he sufficiently identifies the defendant to allow service of process. Moulds v. Bullard, 2009 WL 2488182 (11th Cir. Aug. 17, 2009); Dean v. Barber, 951 F.2d 1210, 1215-16

(11th Cir.1992). Plaintiff's description of the two CERT team officers is still not sufficient to enable the Court to serve the complaint directly upon said defendants. However, the Second Circuit Court of Appeals has held that prisoners are entitled to some assistance from the Court in identifying Doe defendants. Valentin v. Dinkins, 121 F.3d 72 (2d Cir. 1997). District courts can assist by directing service upon the prison warden in such instances. See, e.g., Loadholt v. DOC, 2009 WL 4230132 (W.D.N.Y. Nov. 24, 2009). Because plaintiff is a pro se prisoner, the Court VACATES its January 20th order of dismissal and DIRECTS that a copy of the summons and complaint, along with plaintiff's pleading at Tab # 14, be served upon Baldwin State Prison Warden Carl Humphrey. Warden Humphrey is instructed to make a reasonable effort to identify the two unidentified CERT team officers based on the information provided by plaintiff. Warden Humphrey shall have thirty (30) days from the date of this order to attempt to determine the names of one or both Doe defendants, as described by plaintiff, and to provide the Court with his findings. SO ORDERED, this 9th day of February, 2010.

S/ C. Ashley Royal C. ASHLEY ROYAL UNITED STATES DISTRICT JUDGE