Enyart v. Karnes et al

Filing 131

OPINION AND ORDER granting 119 Motion for Extension of Time for service of process; granting 120 Motion to Compel. Defendent Mandy Miller is ORDERED to file under seal, w/in fourteen (14) days of the date of this Opinion and Order, a current address for defendant Daniel Thacker, if that address is available to her. Signed by Magistrate Judge Norah McCann King on 09/19/2011. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

RICHARD E. ENYART, JR.,
Plaintiff,
vs.

Civil Action 2:09-CV-687
Judge Smith
Magistrate Judge King

SHERIFF JIM KARNES, et al.,
Defendants.

OPINION AND ORDER
Plaintiff, a state inmate proceeding without the assistance of
counsel, brings this action under 42 U.S.C. § 1983 alleging that he
was denied due process while detained in the Franklin County Jail.
This matter is now before the Court on Plaintiff’s Motion for
Enlargement of Time for Service of Process on Defendant Thacker, Doc.
No. 119 (“Motion for Extension”) and Plaintiff’s Motion to Compel
Discovery or Disclosure of Defendant Thacker’s Address to the Court,
Doc. No. 120 (“Motion to Compel”).

For the reasons that follow,

plaintiff’s motions are GRANTED.
Plaintiff initiated this action on August 6, 2009, by the filing
of the original Complaint, which named as defendants Sheriff Jim
Karnes and two “John Does.”

Complaint, Doc. No. 2.

Thereafter,

plaintiff moved for leave to amend, seeking to identify Deputy Dan
Waldren as the “John Doe 1” referred to in the Complaint.
10.

Doc. No.

Because no answer had yet been filed, plaintiff’s motion was

granted.

Order, Doc. No. 13.

After additional motions for leave to amend were filed, the

Court, on November 10, 2010, ordered plaintiff to file a new amended
complaint that expressly identified, inter alios, Daniel Thacker as a
defendant.

Order and Report and Recommendation, Doc. No. 69.

The

Court further ordered plaintiff to submit a completed summons and a
Marshal service form and directed the United States Marshal Service to
effect service of process upon plaintiff’s submission of those
documents.

Id.

Thereafter, plaintiff filed the Amended Complaint, Doc. No. 76.
A summons was issued to defendant Thacker at FCCCI.

Doc. No. 83.

On

February 25, 2011, the summons was returned unexecuted with the
notation “refused.”

Doc. No. 88.

On April 26, 2011, the Court,

noting that defendant Thacker and other named defendants had not yet
been served, directed the Clerk’s Office to effect service of process
by ordinary mail, consistent with S.D. Ohio Civ. R. 4.2(c), on, inter
alios, defendant Thacker.
No. 96.

Order and Report and Recommendation, Doc.

The Clerk certified that a copy of the Amended Complaint had

been sent by regular mail to defendant Thacker at FCCCI.

Doc. No. 97.

That summons was returned unexecuted with the notation that defendant
Thacker “has not worked here in a couple of years.”

Doc. No. 108-1.

Plaintiff now seeks additional time in which to serve defendant
Thacker and asks this Court to compel defendants to disclose defendant
Thacker’s address to the Court (not to plaintiff) so that plaintiff
may effect service of process.
Compel.

Motion for Extension, Motion to

No response has been filed.

Plaintiff’s motions are well-taken.

Rule 4(m) of the Federal

Rules of Civil Procedure provides that a plaintiff must serve each
defendant within 120 days of the filing of the complaint.
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If such

service is not made, the rule provides that the Court “must dismiss
the action without prejudice against [the] defendant or order that
service be made within a specified time.

But if the plaintiff shows

good cause for the failure, the court must extend the time for service
for an appropriate period.”

Fed. R. Civ. P. 4(m).

Therefore,

“[e]stablishing good cause is the responsibility of the party opposing
the motion to dismiss. . . and ‘necessitates a demonstration of why
service was not made within the time constraints.’”

Nafziger v.

McDermott Int'l, Inc., 467 F.3d 514, 521 (6th Cir. 2006) (quoting
Habib v. GMC, 15 F.3d 72, 73 (6th Cir. 1994)).

Determining whether

good cause has been shown is left to the discretion of the district
court.

Id.
In this case, plaintiff initially attempted to serve defendant

Thacker at his place of employment.

After that attempt failed,

plaintiff represents, he attempted to obtain an alternate address for
this defendant, but has been unable to do so.

Motion to Compel, p. 1.

Under these circumstances, the Court concludes that plaintiff has
established good cause and that the Court’s discretion is better
exercised by the grant of the requested extension.
However, this extension of time would be meaningless without the
current address at which to serve defendant Thacker.

Although

plaintiff asks for such information, he does not ask that the
information be given to him personally.

Rather, plaintiff asks that

defendant Thacker’s current address be made available to the Court.
Other courts have, under similar circumstances, directed that a
defendant’s address be provided under seal so that service of process
may be effected without disclosing a defendant’s current address to an
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inmate plaintiff.

See, e.g., Blacker v. Desmarias, No. 1:09-cv-346,

2010 U.S. Dist. LEXIS 20561 (S.D. Ohio Mar. 8, 2010).

This Court

concludes that a similar course of action is appropriate here.

The

Court will therefore directed defendant Mandy Miller, who remains a
defendant in this action,1 to provide the requested information, if she
is able to do so.
WHEREUPON, Plaintiff’s Motion for Enlargement of Time for Service
of Process on Defendant Thacker, Doc. No. 119, and Plaintiff’s Motion
to Compel Discovery or Disclosure of Defendant Thacker’s Address to
the Court, Doc. No. 120, are GRANTED.

Defendant Mandy Miller is

ORDERED to file under seal, within fourteen (14) days of the date of
this Opinion and Order, a current address for defendant Daniel
Thacker, if that address is available to her.

Upon submission of that

information, the United States Marshal Service is DIRECTED to effect
service of process upon defendant Daniel Thacker at that address.
Defendant Thacker may have forty-five (45) days after service of
process to respond to the Amended Complaint.

September 19, 2011

s/Norah McCann King
Norah McCann King
United States Magistrate Judge

1

The grant of defendant Miller’s motion to dismiss has been recommended.
Report and Recommendation, Doc. No. 130. Unless and until that recommendation
is adopted and affirmed, however, this defendant remains a party to this
action.

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