Caballero v. Boney et al

Filing 23

ORDER that the U.S. Marshal shall use all reasonable efforts to locate and obtain service on Defendants Boney and Heh at their home addresses. If the U.S. Marshal is unable to obtain service on Defendants Boney and Heh, the U. S. Marshal shall inform the Court of the reasonable attempts to obtain service. Plaintiff is instructed to file a Notice within ten (10) days of this Order providing any and all information about FNU Smith to assist NC DPS to identify the individual against whom Plaintiff intends to proceed. Plaintiff is cautioned that failure to provide this information may result in dismissal of the claims against FNU Smith. NC DPS shall file, within 14 (fourteen) days of Plaintiffs Notice, a Waiver of Service or a Notice pursuant to LCvR 4.3(c)(2) for Defendant FNU Smith.. Signed by Chief Judge Frank D. Whitney on 9/28/18. (Pro se litigant served by US Mail.)(clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-151-FDW
ALFONZO CABALLERO,

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Plaintiff,
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vs.
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PHILLIP BONEY, et al.,
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Defendants.
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__________________________________________)

ORDER

THIS MATTER is before the Court on the North Carolina Department of Public Safety’s
(“NC PDS”) Sealed Notice, (Doc. No. 22), informing the Court that it has been unable to procure
a waiver of service of process for Defendants Phillip Boney, Stephen Heh, and FNU Smith in
accordance with the Court’s May 23, 2018, Order, (Doc. No. 15). NC DPS has provided the last
known addresses for Defendants Boney and Heh under seal. (Doc. No. 22).
The Clerk of Court is directed to notify the United States Marshal that Defendants Boney
and Heh need to be served with the summons and Complaint in accordance with Rule 4 the Federal
Rules of Civil Procedure. If Defendants Boney and Heh cannot be served at the addresses provided
by the NC DPS, the U.S. Marshal shall be responsible for locating their home addresses so that
they may be served. See 28 U.S.C. § 1915(d) (in actions brought in forma pauperis under §
1915(d), “[t]he officers of the court shall issue and serve all process, and perform all duties in such
cases”); Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s request, the court may order that service be
made by a United States Marshal or deputy marshal or by a person specially appointed by the
court. The court must so order if the plaintiff is authorized to proceed in forma pauperis under 28
U.S.C. § 1915….”). If the U.S. Marshal is unable to obtain service on Defendants Boney and Heh,
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the U.S. Marshal shall inform the Court of the reasonable attempts to obtain service. The U.S.
Marshal shall not disclose Defendants’ home addresses to the pro se incarcerated Plaintiff and
shall file any document containing such addresses under seal.
With regards to FNU Smith, NC DPS has been unable to determine which individual with
the last name of Smith that Plaintiff wishes to sue. Plaintiff is instructed to file a Notice within ten
(10) days of this Order providing any and all information about FNU Smith to assist NC DPS to
identify the individual against whom Plaintiff intends to proceed. Plaintiff is cautioned that failure
to comply may result in dismissal of the claims against FNU Smith. Within 14 (fourteen) days
after Plaintiff’s Notice is filed, NC DPS shall file a Waiver of Service or a Notice pursuant to
LCvR 4.3 for FNU Smith.
IT IS THEREFORE ORDERED that:
(1)

The U.S. Marshal shall use all reasonable efforts to locate and obtain service on
Defendants Boney and Heh at their home addresses. If the U.S. Marshal is unable
to obtain service on Defendants Boney and Heh, the U.S. Marshal shall inform the
Court of the reasonable attempts to obtain service.

(2)

The Clerk is respectfully instructed to mail a copy of the Complaint, (Doc. No. 1),
the Sealed Notice containing Defendants’ last known addresses, (Doc. No. 22), and
this Order to the U.S. Marshal.

(3)

Plaintiff is instructed to file a Notice within ten (10) days of this Order providing
any and all information about FNU Smith to assist NC DPS to identify the
individual against whom Plaintiff intends to proceed. Plaintiff is cautioned that
failure to provide this information may result in dismissal of the claims against
FNU Smith.
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(4)

NC DPS shall file, within 14 (fourteen) days of Plaintiff’s Notice, a Waiver of
Service or a Notice pursuant to LCvR 4.3(c)(2) for Defendant FNU Smith.

Signed: September 28, 2018

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