Sneed v. Wheeler Correctional Facility et al

Filing 42

ORDER directing the U. S. Marshal service to attempt service again on Dr. Hae. The Marshal is to notify the Court within 30 days in writing whether defendant has been located. (Compliance due by 9/25/2015). Signed by Magistrate Judge Brian K. Epps on 8/26/15. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
JAMES SNEED,
Plaintiff,
v.
DR. HAE; T. UEAL, Nurse; DR.
NICHOLES; and W. BROWN, Nurse,
Defendants.

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CV 314-085

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ORDER
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Plaintiff, an inmate at Augusta State Medical Prison in Grovetown, Georgia, brought
the above-captioned civil rights case, concerning events that occurred at Wheeler
Correctional Facility in Alamo, Georgia. Plaintiff is proceeding pro se and in forma pauperis.
(Doc. no. 5.) On April 17, 2015, the Court directed the United States Marshal to effect
service of process on four Defendants who had allegedly provided dental care to Plaintiff.
(Doc. no. 19.)

However, the Marshal’s Return of Service came back unexecuted for

Defendant Hae, with a notation that a person by the name Hae has never worked at Wheeler
Correctional Facility. (See doc. no. 25.) On July 1, 2015 the Court ordered Plaintiff to
provide correct contact information as to Defendant Hae, and in response to that Order,

Plaintiff informed the Court that Nurse T. Veal1 allegedly gave the incorrect name of Dr. Hae
to Plaintiff. (Doc. no. 34, 39.)
In Richardson v. Johnson, 598 F.3d 734 (11th Cir. 2010), the Eleventh Circuit
addressed the propriety of dismissing a defendant in a § 1983 action brought by a pro se
prisoner proceeding IFP, where the defendant had been dismissed for failing to timely serve
the defendant. In Richardson, a prison guard defendant could not be served at the prison
because he no longer worked there. Richardson, 598 F.3d at 739-40. In addressing the
prisoner-plaintiff’s challenge to the dismissal of this defendant, the Eleventh Circuit ruled
that “[i]t is unreasonable to expect incarcerated and unrepresented prisoner-litigants to
provide the current addresses of prison-guard defendants who no longer work at the prison.”
Id. The Eleventh Circuit went on to conclude that as long as an incarcerated plaintiff
provides enough information to identify a defendant,2 the Marshal must use “reasonable
effort” to locate that defendant and effect service of process before the defendant can be
dismissed. Id. at 740.
Here, Plaintiff has provided identifying information that was apparently not used in
attempting to effect service on Defendant Hae. Namely, Dr. Hae provided dental services
along with Nurse Veal to Plaintiff on March 19, 2013 and September 19, 2013. (See doc. no.

1

In the complaint, Plaintiff seems to spell the name as “Ueal” while in his response to
the Court’s Order, the name is spelled Veal. According to the waiver of service and answer,
the name of the defendant is actually Tara Veal. (Doc. no. 27, 32.)
2

The Eleventh Circuit quoted with approval language from a Seventh Circuit case that
stated, “[T]he prisoner need furnish no more than the information necessary to identify the
defendant.” Richardson, 598 F.3d at 739 (citing Sellers v. United States, 902 F.2d 598, 602
(7th Cir. 1990)).
2

19, p. 3.) Thus, reasonable efforts in this instance would include contacting WCF officials
with this specific information about when, and in what capacity, Defendant Hae was working
at WCF to obtain sufficient information to effect service on Defendant Hae. Further, defense
counsel was able to identify and answer for the misidentified defendants in this case based on
the allegations in the complaint and may have further information on Defendant Hae.
As Plaintiff is proceeding IFP, he is entitled to rely on the Marshal to effect service of
process. See 28 U.S.C. § 1915(d). Reasonable effort entails more than one attempt at
mailing a waiver of service form. Therefore, pursuant to Richardson, supra, the Court
DIRECTS the United States Marshal to use reasonable effort to locate and effect service of
process on Dr. Hae. Although the 120 days allowed for service has expired, the Court will
not require the Marshal to attempt personal service. Rather, the Marshal shall attempt
service by mail as set forth in the Court’s April 17, 2015 Order. (See doc. no. 19, p. 4.) The
Court further DIRECTS the Marshal to notify the Court in writing within thirty days of the
date of this Order as to whether this Defendant has been located.
SO ORDERED this 26th day of August, 2015, at Augusta, Georgia.

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