Guerry v. Frakes et al

Filing 20

MEMORANDUM AND ORDER - This matter is before the court on Plaintiff Brian Frank Guerry's Motion to Compel. (Filing No. 79 .) No later than July 8, 2017, Mr. David A. Lopez with the Nebraska Attorney General's Office, as counsel for those d efendants already served, shall provide to the court the full names and addresses of "Tompkins, Case Worker," "Rodie, Correction Officer," "Steele, Correction Officer," and John and Jane Does from Housing Units 2-A and B , to the extent he knows or can reasonably ascertain them. The employment addresses of these individuals will be sufficient if they are still employed with the Nebraska Department of Correctional Services. If, however, any of these individuals is no longer employed with the Nebraska Department of Correctional Services, their personal addresses shall be filed under seal with the court. The court previously ordered the clerk of the court to obtain the last-known address for Andrew King from the Un ited States Marshals Service for service of process on King. (Filing No. 76 .) The Marshals Service has advised the court that there is more than one address for "Andrew King." Accordingly, Mr. Lopez shall also provide to the court the add ress for Andrew King, to the extent he knows or can reasonably ascertain it, in the manner provided in the preceding paragraph. The clerk's office is directed to set a pro se case management deadline using the following text: July 8, 2017: check for names and addresses from Mr. Lopez. Member Cases: 8:15-cv-00323-RGK-PRSE, 4:17-cv-03047-RGK-PRSE Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

BRIAN FRANK GUERRY,
Plaintiff,

8:15CV323
8:15CV323

vs.
ORDER
SCOTT FRAKES, Director; BRIAN
GAGE, Warden; GUIFFRE, Case
Worker; and THOMPSON, Case
Worker;

MEMORANDUM AND ORDER

Defendants.
__________________________________
BRIAN FRANK GUERRY,

4:17CV3047

Plaintiff,
vs.
SCOTT FRAKES, in his individual
capacity; FRANK HOPKINS, in his
individual capacity; BRIAN GAGE, in
his individual capacity; MICHELLE
CAPPS, in her individual capacity;
BUSBOOM, in his individual capacity;
CHRISTOPHER CONNELLY, in his
individual capacity; CRYSTAL
REMPEL, in her individual capacity;
JACOB BENTS, in his individual
capacity; ANDREW KING, in his
individual capacity; AUSTIN GOCKE,
in his individual capacity; SHAW

MEMORANDUM AND ORDER

SHERMAN, in his individual capacity;
CHRISTOPHER ULRICK, in his
individual capacity; KEITH
BROADFOOT, in his individual
capacity; R. HOLLY, in his individual
capacity; CHELSEA GUIFFRE, in her
individual capacity; DANIEL
THOMPSON, in his individual capacity;
FLINN, in her individual capacity; and
JOHN DOE(S),
Defendants.
This matter is before the court on Plaintiff Brian Frank Guerry’s Motion to
Compel. (Filing No. 79.) In its previous order dated May 24, 2017, the court
instructed Guerry as follows:
Guerry must identify John Doe, a corrections officer in Housing Units
2-C and D, and John and Jane Does, corrections officers, case
managers, case workers, and staff working in Housing Units 2-A and
B, before his failure-to-protect and conditions-of-confinement claims
against them can proceed to service of process. Guerry will have 30
days from the date of this Memorandum and Order to take reasonable
steps to identify John Doe, a corrections officer in Housing Units 2-C
and D, and John and Jane Does, corrections officers, case managers,
case workers, and staff working in Housing Units 2-A and B, and
notify the court of their names, after which the court will initiate
service of process. Failure to do so will result in dismissal of his
claims against them without prejudice and without further notice.
(Filing No. 76.) Guerry asserts that John and Jane Does were present in the control
room for Housing Unit 2-C, the protective custody unit where Guerry was
confined, on the day of the prison riot. He maintains that they failed to protect him
during the prison riot and failed to move him out of his cell afterwards.

2

It appears from the documents attached to his Motion to Compel that Guerry
tried to ascertain the names and addresses of John and Jane Does from the
Nebraska Department of Correctional Services and from the Johnson County
District Court to no avail. Guerry only knows the last names of three of the
individuals and, according to him, those individuals are no longer employed at the
Tecumseh State Correctional Institution. Accordingly,
IT IS THEREFORE ORDERED that:
1.
No later than July 8, 2017, Mr. David A. Lopez with the Nebraska
Attorney General’s Office, as counsel for those defendants already served, shall
provide to the court the full names and addresses of “Tompkins, Case Worker,”
“Rodie, Correction Officer,” “Steele, Correction Officer,” and John and Jane Does
from Housing Units 2-A and B, to the extent he knows or can reasonably ascertain
them. The employment addresses of these individuals will be sufficient if they are
still employed with the Nebraska Department of Correctional Services. If,
however, any of these individuals is no longer employed with the Nebraska
Department of Correctional Services, their personal addresses shall be filed under
seal with the court.1
2.
The court previously ordered the clerk of the court to obtain the lastknown address for Andrew King from the United States Marshals Service for
service of process on King. (Filing No. 76.) The Marshals Service has advised the
court that there is more than one address for “Andrew King.” Accordingly, Mr.
Lopez shall also provide to the court the address for Andrew King, to the extent he
knows or can reasonably ascertain it, in the manner provided in the preceding
paragraph.
1

See Munz v. Parr, 758 F.2d 1254, 1257 (8th Cir. 1985) (“Dismissal is
proper only when it appears that the true identity of the defendant cannot be
learned through discovery or the court’s intervention.”) (citation omitted). See also,
Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 555 n. 3 (7th Cir. 1996)
(citing additional authority).
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3.
The clerk’s office is directed to set a pro se case management deadline
using the following text: July 8, 2017: check for names and addresses from Mr.
Lopez.
Dated this 8th day of June, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge

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