Hampton v. Peeples et al

Filing 57

ORDER that the USM to make an reasonable effort to locate Defendant Matt Peeples and to personally serve him with a copy of 19 REPORT AND RECOMMENDATIONS, 10 Response to Order, 46 Order on Motion for Miscellaneous Relief, 1 Complaint, 15 Response to Order. Signed by Magistrate Judge R. Stan Baker on 3/2/2016. (ca)

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

NORMAN HAMPTON, III,
Plaintiff,

CIVIL ACTION NO.: 6:14-cv-104

v.
MATT PEEPLES,
Defendant.

ORDER
This matter comes before the Court on Plaintiff’s failure to provide the Court with a
proper address for service upon Defendant Matt Peeples, the sole remaining Defendant in this
case, and Plaintiff’s Third Motion for Appointment of Counsel, (doc. 55). 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 Defendant Peeples. The Court DENIES Plaintiff’s Motion
for Appointment of Counsel.
BACKGROUND
Plaintiff filed this action on September 26, 2014, against numerous Defendants contesting
the conditions of his confinement at Rogers State Prison in Reidsville, Georgia. (Doc. 1.) In his
Complaint, as amended, Plaintiff alleged that Defendant Peeples, who was formerly a counselor
at Rogers State Prison, assaulted him and used a racial epithet against him.
On June 8, 2015, the Court conducted the requisite frivolity review of Plaintiff’s
Complaint, as amended. (Doc. 19.) Therein, I concluded that Plaintiff set forth a viable Eighth
Amendment claim against Defendant Peeples and ordered the United States Marshal to serve

Plaintiff’s Complaint on Defendant Peeples. (Id. at p. 7.) That Order advised Plaintiff that “he is
responsible for providing a proper address for Defendant Peeples so that he may be served with
this Order and his Complaint. Plaintiff’s failure to do so in a timely manner may result in the
dismissal of this cause of action.” (Id. at p. 8.) However, I recommended that Plaintiff’s claims
against the other Defendants be dismissed.

(Id. at pp. 1–2.)

Plaintiff objected to the

recommended dismissals, as well as the service of his Complaint on Defendant Peeples because
Peeples was no longer employed with the Department of Corrections. (Doc. 23.)
On January 12, 2016, the presiding District Judge, the Honorable J. Randal Hall, issued
an Order overruling Plaintiff’s Objections and adopting the Report and Recommendation.
(Doc. 46.) That Order explained that Defendant Peeples, not the Department of Corrections,
was the proper defendant for Plaintiff’s claims. (Id. at pp. 4–5.) Judge Hall further noted that
efforts to serve Defendant Peeples with the Complaint had been unsuccessful. (Id. at p. 6.)
Accordingly, Judge Hall directed Plaintiff to “provide this Court with a proper address for
Defendant Peeples so that he can be served with a copy of Plaintiffs Complaint within fourteen
days of the date of this Order.” (Id.) The Order cautioned Plaintiff that his “failure to do so or to
otherwise show good cause as to why he cannot follow this Court’s directives shall result in the
dismissal of this cause of action.” (Id.)
Since the issuance of that Order, Plaintiff has not provided the Court with Defendant
Peeples’ address for service. Rather, he filed his Third Motion for Appointment of Counsel on
February 26, 2016. (Doc. 55.) Therein, Plaintiff states that, as an incarcerated inmate, he cannot
obtain an address for Peeples.

(Id. at p. 3.)

He contends that a Georgia Department of

Corrections’ Standard Operating Policy prevents inmates from having personal information

2

regarding prison employees. (Id. at p. 2.) He argues that this obstacle to service would be
eliminated if the Court appointed an attorney to represent him.
DISCUSSION
I.

Plaintiff’s Failure to Provide a Proper Address for Service on Defendant Peeples
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).
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

3

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
Defendant Peeples may be served. He states that, due to security procedures, he cannot obtain
the personal address of current and former correctional officers like Defendant Peeples. Given
these extenuating circumstances, the Court ORDERS the United States Marshal to make a
reasonable effort to locate Defendant Matt Peeples and to personally serve him with a copy of
Plaintiff’s Complaint, (doc. 1), as well as this Order and Documents Numbered 10, 15, 19, and
46. Moreover, the Court finds good cause to extend the time period for service to March 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 Defendant Peeples.
The Court expects that the Marshal’s efforts to serve Defendant Peeples will include
contacting representatives of the Georgia Department of Corrections and/or the Georgia Attorney
General’s Office to obtain Defendant Peeples’ last known address. Accordingly, the Court
ORDERS those entities to provide the United States Marshal with Defendant Peeples’ last
known address and any other information they may have regarding Defendant Peeples’
whereabouts. Additionally, given the inherent security concerns surrounding Defendant Peeples’
personal information, the United States Marshal shall not publicly disclose any information
regarding Defendant Peeples’ residence or location and shall redact any such information from
any materials filed on the docket in this case.

4

The Court notes that 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 Peeples, and,
if these efforts are unsuccessful, the Court will dismiss this case. See Penton v. Nunez, No. 2:11CV-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.”)
II.

Plaintiff’s Motion for Appointment of Counsel
Plaintiff requested appointed counsel in this case on two prior occasions. (Docs. 11, 22.)

In denying each of those Motions, the Court pointed out that Plaintiff does not have a right to
appointed counsel in this civil case and that this case did not present any exceptional
circumstances compelling the Court to provide Plaintiff representation. (Docs. 13, 24 (citing
Wahl vs. McIver, 773 F.2d 1169 (11th Cir. 1985)).) Plaintiff appealed the most recent denial of
counsel to the District Judge. (Doc. 26.)
Judge Hall denied that appeal, affirming that Plaintiff failed to present “exceptional
circumstances” warranting the appointment of counsel. (Doc. 29.) That Order reiterated that
appointed counsel in a civil case is not a right but “‘a privilege that is justified only by
exceptional circumstances, such as where the facts and legal issues are so novel or complex as to
require the assistance of a trained practitioner.’” (Id. at p. 3 (quoting Fowler v. Jones, 899 F.2d
at 1096)).) Judge Hall cited a litany of Eleventh Circuit cases holding that prisoners do not
receive special consideration in regards to the appointment of counsel notwithstanding the

5

challenges of litigating a case while incarcerated. (Id. at pp. 5–7.) Additionally, among the
arguments that the Court rejected was Plaintiff’s contention that he needed counsel because he
could not obtain personal information regarding Department of Corrections’ employees. (Id. at
p. 3.) Moreover, Judge Hall stated that the quality of Plaintiff’s pleadings demonstrated that he
was capable of representing himself in this case. (Id. at pp. 7–8.)
In his instant Motion for Counsel, Plaintiff reiterates many of the arguments and
authorities he cited in his prior Motions on this issue. (Doc. 55.) The Court need not rehash its
rejection of those arguments. However, Plaintiff’s argument that he needs appointed counsel to
serve Defendant Peeples warrants further discussion.
As noted above, the Court ordinarily does not have an obligation to assist Plaintiff in
effecting service beyond “directing the Marshal to serve process on those parties (and their
addresses) clearly identified by the inmate-plaintiff.” Simmons, No. CV408-239, 2009 WL
2914103, at *1. However, in some extraordinary instances, a prisoner’s inability to obtain
addresses has supported the appointment of counsel. Neal v. Cassiday, 511 F. App’x 865, 866
(11th Cir. 2013) (remanding case with instruction for district court to provide trial counsel to
partially blind inmate who had been transferred serval times and noting that, “Due to the prison
system’s inter–institution communication–prohibition rules, he was unable to find addresses for
almost all his witnesses. Locating the witnesses was critical because the case consisted mainly
of conflicting testimony[.]”). Nonetheless, in the case at hand, the Court has employed other
measures to remedy Plaintiff’s inability to locate and serve Defendant Peeples. Accordingly, the
Court need not take the even more extraordinary step of providing Plaintiff with appointed
counsel.

6

CONCLUSION
For reasons and in the manner set forth above, the Court provides additional assistance to
Plaintiff to achieve service in this case. Additionally, the Court DENIES Plaintiff’s Motion to
Appoint Counsel.
SO ORDERED, this 2nd day of March, 2016.

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

7