Martin v. Frakes et al

Filing 21

MEMORANDUM AND ORDER - The clerk's office shall obtain a current address for Defendant Tomkins from the Marshals Service. For service of process on Defendant Paul Tomkins in his individual capacity, the clerk of the court is directed to complete a summons form and a USM-285 form for Defendant Tomkins using the address provided by the Marshals Service and forward them together with a copy of the Complaint and a copy of this Memorandum and Order to the Marshals Service. The Marshals Service s hall serve Defendant Tomkins personally in his individual capacity at the address provided. Service may also be accomplished by using any of the following methods: residence, certified mail, or designated delivery service. See Federal Rule of Civil Procedure 4(e); NEB. REV. STAT. § 25-508.01 (Reissue 2016). The United States Marshal shall serve all process in this case without prepayment of fees from Plaintiff. The clerk of the court is directed to file under seal the service forms for Defendant Tomkins. Ordered by Senior Judge Richard G. Kopf. (Copy mailed to pro se party; E-mailed to USM) (KLF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CARL A. MARTIN,
Plaintiff,

8:17CV253

vs.
SCOTT FRAKES, Official Capacity,
Individual Capacity; ADAM CROP,
Official Capacity, Individual Capacity;
BRIAN GAGE, Official Capacity,
Individual Capacity; CHELSEA
GUFFRIE, Official Capacity, Individual
Capacity; and PAUL TOMPKINS,
Official Capacity, Individual Capacity;

MEMORANDUM
AND ORDER

Defendants.
This matter comes before the court on its own motion. On November 9,
2017, a summons issued for Defendant Paul Tomkins in his individual capacity
was returned unexecuted with the Marshals Service indicating that Defendant
Tomkins no longer worked at the Lincoln Correctional Center and the Marshals
Service needed “more identifiers” to ascertain Defendant Tomkins’ address.
(Filing No. 19.) The court has identified a possible phone number for Defendant
Tomkins’ from a sealed, executed service of summons in a separate case in which
Tomkins is named as a defendant. The court has provided this phone number to
the Marshals Service to aid in identifying Defendant Tomkins’ current address.1
Accordingly,
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Pro se litigants proceeding in forma pauperis are entitled to rely on service by the
United States Marshals Service. Wright v. First Student, Inc., 710 F.3d 782, 783 (8th Cir. 2013).
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) (language in § 1915(d) is compulsory). See, e.g., Beyer v.
Pulaski County Jail, 589 Fed. Appx. 798 (8th Cir. 2014) (unpublished) (vacating district court
order of dismissal for failure to prosecute and directing district court to order the Marshal to seek

IT IS THEREFORE ORDERED that:
1.
The clerk’s office shall obtain a current address for Defendant
Tomkins from the Marshals Service.
2.
For service of process on Defendant Paul Tomkins in his individual
capacity, the clerk of the court is directed to complete a summons form and a
USM-285 form for Defendant Tomkins using the address provided by the Marshals
Service and forward them together with a copy of the Complaint and a copy of this
Memorandum and Order to the Marshals Service. The Marshals Service shall
serve Defendant Tomkins personally in his individual capacity at the address
provided. Service may also be accomplished by using any of the following
methods: residence, certified mail, or designated delivery service. See Federal
Rule of Civil Procedure 4(e); NEB. REV. STAT. § 25-508.01 (Reissue 2016).
3.
The United States Marshal shall serve all process in this case without
prepayment of fees from Plaintiff.
4.
The clerk of the court is directed to file under seal the service forms
for Defendant Tomkins.
Dated this 13th day of November, 2017.
BY THE COURT:
s/ Richard G. Kopf
Senior United States District Judge
defendant’s last-known contact information where plaintiff contended that the Jail would have
information for defendant’s whereabouts); Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995)
(when court instructs Marshal to serve papers for prisoner, prisoner need furnish no more than
information necessary to identify defendant; Marshal should be able to ascertain defendant’s
current address).

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