Primus v. Payne

Filing 24

ORDER granting 18 Motion to Compel in accordance with this order. Clerk is instructed to mail this Order to Alexander Corr Inst and the NC Atty General along with a copy of plf's grievance documents, docketekd as No. 1-1 in this matter. Signed by Chief Judge Frank D. Whitney on 11/28/2016. (Pro se litigant served by US Mail.)(cbb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
5:16-cv-101-FDW
CARL BENNETT PRIMUS, JR.,

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Plaintiff,
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vs.
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FNU PAYNE, Correctional Officer,
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Defendant.
)
__________________________________________)

ORDER

THIS MATTER is before the Court on Plaintiff’s Motion for Order Compelling
Discovery, (Doc. No. 18). As Plaintiff explains in his motion, he seeks the first name of the sole
Defendant in this action, Defendant FNU Payne, alleged to be a correctional officer at Alexander
Correctional Institution at all relevant times. Defendant Payne allegedly used excessive force
against Plaintiff on March 9, 2016. Plaintiff alleges in a grievance attached to the Complaint that
he and Defendant got into a physical altercation while Plaintiff was returning from evening gym.
(Doc. No. 1-1 at 1). Plaintiff alleges that “Sergeant Walker and Officer Carter” restrained and
handcuffed him during the incident. (Id.). Plaintiff alleges that after he was placed in handcuffs
Defendant Payne kicked him in the face. (Id.). On October 17, 2016, the U.S. Marshal returned
an unexecuted summons as to Defendant FNU Payne, stating that NCDPS “declined to give first
name of officer.” (Doc. No. 16 at 1). Furthermore, a note on the summons states that NCDPS
“have 11 previous employees with the name Payne, without further information this process cannot
be served.” (Id. at 3).
Plaintiff’s motion to compel is GRANTED to the extent that Plaintiff has sufficiently
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identified the date on which the alleged excessive force occurred, and he filed a grievance that
provides additional details about the incident. Therefore, the full identity of Defendant FNU Payne
should not be difficult for the officials at Alexander to discern. In accordance with this Order,
officials at Alexander Correctional Institution shall provide the U.S. Marshal with the full name of
the Defendant named in this action, as well as information regarding Defendant’s last known
address. See Graham v. Satkoski, 51 F.3d 710, 713 (7th Cir. 1995) (noting that “prisoners often
get the ‘runaround’ when they attempt to obtain information through governmental channels and
needless attendant delays in litigating a case result. . . . Although a state prison may be justifiably
reluctant to provide employee addresses to a prisoner or ex-prisoner due to security concerns, it
hardly can claim the same reluctance in providing the information to a federal law enforcement
agency.”). After obtaining the full name of Defendant, the U.S. Marshal shall attempt to locate
and obtain service on Defendant.
IT IS THEREFORE ORDERED that:
(1) Plaintiff’s Motion to Compel, (Doc. No. 18), is GRANTED in accordance with this
order.
(2) The Clerk is respectfully instructed to mail this Order to Alexander Correctional
Institution and the North Carolina Attorney General, along with a copy of Plaintiff’s
grievance documents, docketed as No. 1-1 in this matter.
IT IS SO ORDERED.
Signed: November 28, 2016

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