King v. Houston et al

Filing 34

MEMORANDUM ORDER - Plaintiff's Motion to Compel Discovery (Filing No. 32 ) is denied. On the Court's own motion, the clerk's office is directed to complete, sign, and forward a summons form and USM- 285 form to the Marshal along w ith a copy of the complaint and amended complaint for service of process on Tek Industries, Inc. (See address for Tek Industries, Inc. at Filing No. 32 at CM/ECF p. 1.) The Marshal shall serve the summons, complaint, and amended complaint with out payment of costs or fees. Plaintiff's Motion for Extension of Time (Filing No. 33 ) is granted. Plaintiff has until November 7, 2014, to complete service of process in this matter. The clerk's office shall term the following pro se c ase management deadline: October 7, 2014: Check completion of service of summons. The clerk's office shall set a pro se case management deadline using the following text: November 7, 2014: Check completion ofservice. Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party; to USM with summons and complaint and amended complaint)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DONNELL KING,

)
)
Plaintiff,
)
)
v.
)
)
ROBERT P. HOUSTON, Director, )
DIAN SABATKA-RINE, Warden,
)
JOANNE HILGERT, Tek Ind.
)
Supervisor, and C.S.I.
)
DIRECTOR,
)
)
Defendants.
)
______________________________)

4:13CV3061

MEMORANDUM AND ORDER

This matter is before the Court on plaintiff’s Motion
to Compel Discovery (Filing No. 32) and Motion for Extension of
Time (Filing No. 33).

Plaintiff seeks an order compelling the

Nebraska State Penitentiary (“NSP”) “to provide the U.S. Marshals
(only), with the Defendant(s) named herein home address, work
location and phone numbers so that the U.S. Marshal(s) can
finally serve the Defendant(s).”

(Filing No. 32 at CM/ECF p. 1.)

In addition, plaintiff seeks an extension of time in which to
serve defendants with process.
Because plaintiff is proceeding in forma pauperis, he
is entitled to rely on service by the United States Marshals
Service.

Wright v. First Student, Inc., 710 F.3d 782, 783 (8th

Cir. 2013).

In addition, pursuant to 28 U.S.C. § 1915(d), in an

in forma pauperis case, “[t]he officers of the court shall issue

and serve all process, and perform all duties in such cases.”
See Moore v. Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997).
However, it is a plaintiff’s responsibility to provide the
process servers with the necessary information for service of
process.

See Gustaff v. MT Ultimate Healthcare, No. 06CV 5496

(SLT)(LB), 2007 WL 2028103, at *3 (E.D.N.Y June 21, 2007);
Gonzalez v. L’Oreal USA, Inc., 489 F. Supp. 2d 181, 184 (N.D.N.Y.
May 24, 2007).
Here, plaintiff seeks an order compelling NSP officials
to provide the Marshals with the necessary information for
service of process on defendants Mel Soyh and Joanne Hilgert,
employees of defendant Tek Industries, Inc.

The undersigned

judge questions whether NSP officials would be in possession of
such information given that Tek Industries, Inc. no longer
operates within NSP.

Regardless, NSP is a non-party to this

action and cannot be compelled to provide such information
without first being served with a request for it.

Ordinarily,

such a request must be made by filing a motion for a subpoena
duces tecum pursuant to Federal Rule of Civil Procedure 45.
However, such a motion is unnecessary at this time because
plaintiff has provided the necessary information for service of
process on Tek Industries, Inc. and the Court will direct the
Marshals to serve Tek Industries, Inc. at the address plaintiff
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has provided.
p. 1.)

(See Motion to Compel at Filing No. 32 at CM/ECF

If, after serving Tek Industries, Inc. with process,

plaintiff is unable to obtain the necessary information for
service of process on Mel Soyh and Joanne Hilgert, plaintiff may
seek information from a non-party through the process laid out in
Rule 45.

For now, his Motion to Compel Discovery (Filing No. 32)

will be denied.
The Court will direct the clerk’s office to complete,
sign, and forward a summons form and USM-285 form to the United
States Marshals Service along with a copy of the complaint and
amended complaint for service of process on Tek Industries, Inc.
1

See Moore, 123 F.3d at 1085-86 (holding it was error for the

Court to require a plaintiff proceeding in forma pauperis to fill
out service of process forms where plaintiff had furnished “the
information necessary to identify the defendant”).

In addition,

the Court will extend the time in which plaintiff has to serve
defendants with process by 30 days.

1

Plaintiff is cautioned that it is his responsibility to
properly identify where Tek Industries, Inc. can be served. See
Gustaff, 2007 WL 2028103, at *3; Gonzalez, 489 F. Supp. 2d at
184. If Tek Industries, Inc. cannot be effectively served with
process at the address plaintiff has provided, the failure will
be imputed to him, and his claims may face dismissal pursuant to
Rule 4(m) of the Federal Rules of Civil Procedure.
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IT IS ORDERED:
1.

Plaintiff’s Motion to Compel Discovery (Filing No.

32) is denied.
2.

On the Court’s own motion, the clerk’s office is

directed to complete, sign, and forward a summons form and USM285 form to the Marshal along with a copy of the complaint and
amended complaint for service of process on Tek Industries, Inc.
(See address for Tek Industries, Inc. at Filing No. 32 at CM/ECF
p. 1.)

The Marshal shall serve the summons, complaint, and

amended complaint without payment of costs or fees.
3.

Plaintiff’s Motion for Extension of Time (Filing

No. 33) is granted.

Plaintiff has until November 7, 2014, to

complete service of process in this matter.

The clerk’s office

shall term the following pro se case management deadline:
October 7, 2014: Check completion of service of summons.

The

clerk’s office shall set a pro se case management deadline using

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the following text:

November 7, 2014: Check completion of

service.
DATED this 18th day of August, 2014.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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