Martin v. McDaniel et al.

Filing 25

ORDER directing service on Brian Owens, the Commissioner of the Department of Corrections, for the limited purpose of allowing Plaintiff to discover Defendant Johnny McDaniel's proper address for personal service. 24 MOTION for Court to order Warden Robert Toole to give the Court the address of defendant Lt. Johnny McDaniel is denied at this time. Ordered by US Mag Judge Stephen Hyles on 12/20/11. (AGH)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
JAMES M. MARTIN,
Plaintiff,
v.
Lieutenant JOHNNY McDANIEL,
Defendant.
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CASE NO. 5:11-CV-192-MTT-MSH
42 U.S.C. § 1983

ORDER FOR SERVICE AND
GRANTING LIMITED DISCOVERY
On December 15, 2011, Plaintiff sent a letter to this Court requesting that the
Court issue an Order requiring Robert Toole, the warden of Wilcox State Prison, to
disclose to the Court a forwarding address for Defendant McDaniel. (ECF No. 24.) The
Court is interpreting this as a Motion to Compel which would allow Plaintiff to effect
service. For the reasons described below, Plaintiff’s motion as requested is denied at this
time.

Instead, the Court orders service on Brian Owens, the Commissioner of the

Department of Corrections, for the limited purpose of allowing Plaintiff discovery as to
the current employer and location of Defendant Johnny McDaniel.
BACKGROUND
Plaintiff filed his Complaint pursuant to 42 U.S.C. § 1983 on May 16, 2011. (ECF
No. 1.) After a preliminary review of Plaintiff’s Complaint and Amended Complaint, the
only remaining defendant in the case is Lieutenant Johnny McDaniel. (Order & Report
& Recommendation 5-7, June 1, 2011, ECF No. 5; Order 2, July 1, 2011, ECF No. 7;
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Order 2, Oct. 24, 2011, ECF No. 21.) On July 14, 2011, the Court directed service
against Defendant McDaniel. (Order of Service, ECF No. 9.) A United States Marshals
Service Process Receipt and Return was mailed to Defendant McDaniel, along with the
Complaint and a summons, at the address provided by Plaintiff on July 15, 2011. (ECF
No. 10.) Defendant McDaniel did not answer the Complaint or waive service.
In response, on August 25, 2011, Plaintiff moved for an entry of default against
Defendant McDaniel.

The Court thereafter Ordered that Defendant McDaniel be

personally served by the U.S. Marshals Service. (Text Only Order, Sept. 19, 2011.) The
process receipt for personal service was returned unexecuted because Defendant
McDaniel is no longer at the address provided for service by Plaintiff. (See Process
Receipt & Return 1, ECF No. 18.) Specifically, the U.S. Marshal was advised that
Defendant McDaniel no longer works at Wilcox State Prison, the only address provided
by Plaintiff. (Id.)
The Court, therefore, denied Plaintiff’s motion for an entry of default. (Order 4,
Oct. 14, 2011, ECF No. 20.) In that Order, the Court explained that an in forma pauperis
litigant is allowed “to rely on the court officers and United States Marshals to effect
proper service, and should not be penalized for failure to effect service where such failure
is not due to fault on the litigant’s part.” Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir.
1990). However, the Plaintiff must also assist the Court in attempting to effectuate
service. See Fowler, 899 F.2d at 1095 (“A plaintiff may not remain silent and do nothing
to effectuate such service. At a minimum, a plaintiff should request service upon the
appropriate defendant and attempt to remedy any apparent service defects of which a
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plaintiff has knowledge.”) (quotation marks and citation omitted). The Court, finding
that Plaintiff’s failure to provide the proper address for Defendant McDaniel was not
purposeful, provided Plaintiff with an additional thirty (30) days in which to provide the
Court with Defendant McDaniel’s address. (Order 3, Oct. 14, 2011.)
Plaintiff responded to the Court’s October 14 Order on October 31, 2011. (ECF
No. 22.)

In that response, Plaintiff alleged that he has in good faith attempted to

determine Defendant McDaniel’s current employer and address. (Pl.’s Resp. to Ct. Order
1-2.) In order to show his good faith attempts to perfect service Plaintiff contends that:
(1) he mailed copies of the Complaint to Wilcox State Prison and he was informed by
Wilcox State Prison’s deputy warden that Defendant’s McDaniel’s mail was being
forwarded to him, thus Defendant McDaniel has actual knowledge of this action; (2) that
Plaintiff has mailed copies of the Complaint to the Attorney General in an attempt to
effectuate service; and (3) that he has discovered that Defendant McDaniel works at
another Georgia Department of Corrections institution, although he has been unable to
find out which one. (Pl.’s Resp. to Ct. Order 2.) On November 3, 2011, Plaintiff filed
another response wherein he further explains that he has requested Defendant McDaniel’s
proper address from the warden of Wilcox State Prison, but that that request has been
refused, and that Plaintiff has been informed that Defendant McDaniel now works at
Macon State Prison. (Pl.’s Resp. to Magistrate Judge’s Order 1-2, ECF No. 23.)
Having shown the Court that Plaintiff was doing all within his power to determine
Defendant McDaniel’s proper address but was continuing to be unsuccessful, the Court
asked the clerk’s office to contact Macon State Prison to determine if Defendant
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McDaniel was employed there. Although Macon State Prison told the clerk’s office that
Defendant McDaniel was not employed there, it would not tell the clerk’s office where he
is currently employed. The United States Marshal’s Service has also attempted to locate
Defendant McDaniel’s current employer, but has been denied access to that information
by specific institutions.
DISCUSSION
Since Plaintiff is pro se and is proceeding in forma pauperis in this action, it is the
duty of the officers of the court to “issue and serve all process[.]” 28 U.S.C. § 1915(d).
As explained in the Court’s previous Order, in the Eleventh Circuit in forma pauperis
litigants are “entitled to rely on the court officers and United States Marshals to effect
proper service, and should not be penalized for failure to effect service where such failure
is not due to fault on the litigant’s part.” Fowler, 899 F.2d at 1095.
Although Plaintiff has been unable to provide the Court with Defendant
McDaniel’s current address, Plaintiff has clearly made every attempt possible to ascertain
Defendant’s address and has been met with repeated road blocks. Once the Court
determined to attempt to seek the Defendant’s address, the Court, the clerk’s office, and
the United States Marshal’s Service were likewise met with evasiveness from the
different institutions and have been stymied in their attempts to determine Defendant
McDaniel’s address.

Consequently, the Court now orders Brian Owens, the

Commissioner of the Georgia Department of Corrections (GDOC) to be served in this
case for the limited purpose of allowing Plaintiff to conduct limited discovery concerning
Defendant McDaniel’s current address.
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Specifically, Plaintiff shall be provided with five (5) interrogatories that shall be
answered by the GDOC Commissioner. These interrogatories will not count as part of
Plaintiff’s allowed interrogatories during normal discovery pursuant to Local Rule 33.1.
Plaintiff should inquire into: whether Defendant McDaniel is still employed by the
GDOC; if so, where Defendant McDaniel is currently employed; and the address where
Defendant McDaniel can be personally served. Although discovery is not typically filed
with the Court, the parties are ordered to file copies of the interrogatories and responses.
Plaintiff shall have twenty-one (21) days to serve and file his interrogatories.
Commissioner Owens shall respond to Plaintiff’s interrogatories within twenty-one (21)
days of receipt.1
CONCLUSION
For the reasons explained above, Plaintiff’s motion to compel is denied at this
time. However, the GDOC Commissioner shall be served in this case and is ordered to
respond to Plaintiff’s interrogatories within twenty-one days of receipt.
SO ORDERED, this 20th day of December, 2011.
S/ Stephen Hyles
UNITED STATES MAGISTRATE JUDGE

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Whether the Respondent is subject to sanctions pursuant to Federal Rules of Civil Procedure
Rule 4(d)(2) for his failure to waive service, and what sanctions, if any, are proper, will be
addressed at the appropriate time. See, e.g., Fed. R. Civ. P. 4, 1993 amend. note (“Defendants
that magnify costs of service by requiring expensive service not necessary to achieve full notice
of an action brought against them are required to bear the wasteful costs.”); see also Fed. R. Civ.
P. 4(d), 1993 amend. note (“A defendant failing to comply with a request for waiver shall be
given an opportunity to show good cause for the failure, but sufficient cause should be rare.”).
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