Jackson v. Correctional Corporation of America et al

Filing 26

ORDER DIRECTING the United States Marshal to make reasonable efforts to locate and personally serve Defendants McKerrocher and Fontaine. The Court ORDERS the United States Marshal to serve them with the following: the summons in this case, Plaintiff 's Complaint, (doc. 1), this Order, and Documents Numbered 7 and 14. Moreover, the Court finds good cause to extend the time period for service to May 31, 2016. The Court expects that the Marshal's efforts to serve Defendants will include contacting representatives of Corrections Corporations of America, the Georgia Department of Corrections, and/or the Georgia Attorney Generals Office to obtain Defendants last known addresses. Accordingly, the Court ORDERS those entities to provide the United States Marshal with Defendants last known address and any other information they may have regarding Defendants whereabouts. Signed by Magistrate Judge R. Stan Baker on 4/22/2016. (csr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
WAYCROSS DIVISION

ARTHUR JACKSON,
Plaintiff,

CIVIL ACTION NO.: 5:14-cv-95

v.
NURSE JOSEPH MCKERROCHER; and DR.
PIERRE FONTAINE,
Defendants.

ORDER
This matter comes before the Court on Plaintiff’s failure to provide the Court with a
proper address for service upon Defendants Nurse Joseph McKerrocher and Dr. Pierre Fontaine,
the sole remaining Defendants. For the reasons and in the manner set forth below, the Court
DIRECTS the United States Marshal to make reasonable efforts to locate and personally serve
Defendants McKerrocher and Fontaine.
BACKGROUND
Plaintiff filed this action on November 17, 2014, against numerous Defendants contesting
the conditions of his confinement at Coffee Correctional Facility in Nicholls, Georgia. (Doc. 1.)
On January 13, 2015, the Court conducted the requisite frivolity review of Plaintiff’s Complaint.
(Doc. 6.)

Therein, the Honorable James Graham concluded, among other things, that the

Plaintiff stated viable claims against Defendants McKerrocher and Fontaine. Id. Accordingly,
Judge Graham ordered the United States Marshal to serve Plaintiff’s Complaint on those
Defendants. (Id. at pp. 4–5.)

On July 23, 2015, the United States Marshal filed Unexecuted Returns of Service as to
both Defendants. (Docs. 20, 21) In his notice filed with this Court on August 17, 2015, Plaintiff
provided updated addresses for Defendants so that proper service could be made upon these
Defendants. (Doc. 22.) Accordingly, the Court once again ordered service as to McKerrocher
and Fontaine at their updated addresses. (Doc. 23.) Nonetheless, on December 16, 2015, the
Summonses were again returned unexecuted. (Docs. 24, 25.)
DISCUSSION
Courts assist inmate plaintiffs—because they are confined and typically indigent—in
effecting Rule 4 service. See, e.g., Fowler v. Jones, 899 F.2d 1088, 1095 (11th Cir. 1990) (“In
forma pauperis litigants should be entitled to rely on the court officers and United States
Marshals to effect proper service where such failure is not due to fault on the litigant’s part.”).
However, the Court ordinarily does not have an obligation to assist an inmate in effecting service
beyond “directing the Marshal to serve process on those parties (and their addresses) clearly
identified by the inmate-plaintiff.” Simmons v. Prison Health Servs. Inc., No. CV408-239,
2009 WL 2914103, at *1 (S.D. Ga. Sept. 10, 2009); see also Smith v. Belle, 321 F. App’x 838,
845 (11th Cir. 2009) (failure of prisoner, proceeding in forma pauperis in Section 1983 action, to
provide current address for defendant so that process could be served, despite being warned that
failure to do so would result in dismissal, warranted dismissal of the prisoner’s claims against
defendant for lack of service of process); Salas v. Tillman, 162 F. App’x 918, 923 (11th
Cir. 2006) (pro se in forma pauperis prisoner was not entitled to a continuance so that service
could be completed on corrections officers in his civil rights claim, where prisoner was aware of
his failure to provide service but made no attempt to remedy the service problem).

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However, where an incarcerated plaintiff attempts to obtain a defendant’s address for
service but is unable to do so, courts can provide additional assistance. See, e.g., Coleman v.
Sweetin, 745 F.3d 756, 766 (5th Cir. 2014) (overturning dismissal for failure to serve where
service ineffective at address provide by the attorney general but plaintiff sought to conduct
additional discovery); Brooks v. Munoz, No. 10CV0277 JAH(NLS), 2010 WL 2523939, at *1
(S.D. Cal. June 21, 2010) (ordering deputy attorney general assigned to case to provide court
with address where defendant could be served).
Here, Plaintiff has not entirely ignored his obligation to provide a current address where
Defendants may be served. He has provided addresses where he believed the Defendants may be
served, he has searched a state database trying to locate them, and it appears he has attempted to
engage in discovery on the issue. (Docs. 18, 22.) Given these extenuating circumstances, the
Court ORDERS the United States Marshal to make a reasonable effort to locate Defendants
Nurse Joseph McKerrocher and Dr. Pierre Fontaine and to personally serve them with the
following: the summons in this case, Plaintiff’s Complaint, (doc. 1), this Order, and Documents
Numbered 7 and 14. Moreover, the Court finds good cause to extend the time period for service
to May 31, 2016. Fed. R. Civ. P. 4(m) (“if the plaintiff shows good cause for the failure [to
timely serve the complaint], the court must extend the time for service for an appropriate
period.”). By that date, the Marshal shall update the Court on his efforts to serve Defendants.
The Court expects that the Marshal’s efforts to serve Defendants will include contacting
representatives of Corrections Corporations of America, the Georgia Department of Corrections,
and/or the Georgia Attorney General’s Office to obtain Defendants’ last known addresses.
Accordingly, the Court ORDERS those entities to provide the United States Marshal with
Defendants’ last known address and any other information they may have regarding Defendants’

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whereabouts. Additionally, given the inherent security concerns surrounding these Defendants’
personal information, the United States Marshal shall not publicly disclose any information
regarding Defendants’ residence or location and shall redact any such information from any
materials filed on the docket in this case.
CONCLUSION
For reasons and in the manner set forth above, the Court provides additional assistance to
Plaintiff to achieve service in this case. This assistance is an extraordinary remedy employed
only due the facts of this case. Such assistance has not been and will not be the regular practice
of this Court. Further, Plaintiff is forewarned that he ultimately has the responsibility for serving
Defendants, and, if these efforts are unsuccessful, the Court will dismiss this case. See Penton v.
Nunez, No. 2:11-CV-0518 GEB KJN, 2014 WL 4244013, at *2 (E.D. Cal. Aug. 26, 2014)
(dismissing case after unable to locate and serve defendant at address provided by deputy
attorney general); Williams v. Hodges, No. CIV.A H-08-2082, 2010 WL 518776, at *5 (S.D.
Tex. Jan. 31, 2010) (dismissing case “because the United States Marshal has been unable to
complete service of process based on the information provided by the plaintiff and the State
Attorney General’s Office.”).
SO ORDERED, this 22nd day of April, 2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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