Johnson v. Ohio Department of Rehabilitation and Corrections et al
Filing
25
OPINION AND ORDER granting 24 Motion to Compel. Signed by Magistrate Judge Norah McCann King on 12/9/2013. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
LEROY JOHNSON, JR.,
Plaintiff,
vs.
Civil Action 2:13-cv-583
Judge Economus
Magistrate Judge King
CORRECTIONAL OFFICER HERREN,
et al.,
Defendants.
OPINION AND ORDER
Plaintiff, an inmate at the Madison Correctional Institution
(“MaCI”), brings this action under 42 U.S.C. § 1983 in connection with
an alleged attack by defendant Correctional Officer Herren.
This
matter is now before the Court on plaintiff’s Motion to Compel, Doc.
No. 24.
This action was filed on June 20, 2013.
Complaint, Doc. No. 4.
On that same day, the Court directed the United States Marshal Service
to effect service of process on this defendant,
1
who was provided
forty-five (45) days after service of process to respond to the
Complaint.
Order and Report and Recommendation, Doc. No. 5, p. 3.
Service of process on defendant Herren at MaCI was returned
unexecuted with the notation, “No longer employed by State of Ohio.”
Doc. No. 20, PAGEID#: 66.
Thereafter, the Court directed plaintiff,
1
This Court previously dismissed other named defendants, leaving defendant
Herren as the sole defendant. Order, Doc. No. 8.
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if he intended to pursue this action, to provide an address at which
defendant Herren could be served with process.
Order, Doc. No. 21.
The Court advised plaintiff that he had until November 1, 2013 in
which to provide a Marshal’s service form reflecting an address for
defendant Herren and specifically warned that plaintiff’s failure to
do so may result in the dismissal of the action for failure to effect
service of process.
Id.
(citing Fed. R. Civ. P. 4(m)).
Upon
plaintiff’s motion, this deadline was extended to December 2, 2013.
Order, Doc. No. 23.
Plaintiff now asks this Court to compel “the Ohio Attorney
Generals [sic] Office, Mike Dewine [sic], Attorney General, and
Assistant Attorney General, Thomas Miller” “to effect and/or accept
substitute service on behalf of” defendant Herren.
p. 1.
Motion to Compel,
In support of this request, plaintiff attaches, inter alia, a
letter authored by him directed to an institutional inspector.
PAGEID#: 75-76.
Id. at
In that letter, plaintiff asks that defendant
Herren’s personal address be sent to the Court in order to effect
service of process on this defendant.
Id. at PAGEID#: 75.
In
response, plaintiff was advised that “[t]he US district court has the
ability to locate and serve Officer Herren papers.”
Id.
Rule 4(m) of the Federal Rules of Civil Procedure provides that a
court “must dismiss the action without prejudice against [a] defendant
or order that service be made within a specified time” if a plaintiff
does not effect service of process within 120 days of the filing of
the complaint.
However, if a plaintiff who does not complete service
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within this time period establishes good cause for that failure, the
court “must extend the time for service for an appropriate period.”
Id.
See also Nafziger v. McDermott Int'l, Inc., 467 F.3d 514, 521
(6th Cir. 2006) (“Dismissal of the action ‘shall’ follow unless the
‘plaintiff shows good cause’ for failure to meet the 120-day
deadline.”) (citing Fed. R. Civ. P. 4(m)).
Determining whether good
cause has been shown is left to the discretion of the district court.
Nafziger, 467 F.3d at 521.
The United States Court of Appeals for the Sixth Circuit has
addressed the difficulty in effecting service of process that may
confront a plaintiff inmate proceeding in forma pauperis:
The plaintiff generally bears responsibility for appointing
an appropriate person to serve a copy of his complaint and
the summons upon a defendant. Fed. R. Civ. P. 4(c)(1).
The appointed person is usually a commercial process server
plaintiff has contracted with to effectuate service for a
fee. In the case of a plaintiff proceeding in forma
pauperis, however, the assumption is that, because the
plaintiff cannot pay fees and costs, it is likely the
plaintiff cannot afford to hire a process server. Welch v.
Folsom, 925 F.2d 666, 668 (3d Cir. 1991). For this reason,
28 U.S.C. § 1915(c) provides that the officers of the court
“shall issue and serve all process” when a plaintiff is
proceeding in forma pauperis. Fed. R. Civ. P. 4(c)(2)
dovetails with § 1915(c) by providing that the court must
appoint a United States Marshal to serve plaintiff’s
process “when the plaintiff is authorized to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915.” Together,
Rule 4(c)(2) and 28 U.S.C. § 1915(c) stand for the
proposition that when a plaintiff is proceeding in forma
pauperis the court is obligated to issue plaintiff’s
process to a United States Marshal who must in turn
effectuate service upon the defendants, thereby relieving a
plaintiff of the burden to serve process once reasonable
steps have been taken to identify for the court the
defendants named in the complaint.
Byrd v. Stone, 94 F.3d 217, 219 (6th Cir. 1996) (finding good cause
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for plaintiff proceeding in forma pauperis where clerk failed to issue
a summons and appoint a Marshal and Marshal’s Service advised that
service was taken care of, but actually failed to serve defendant with
process).
More recently, the Sixth Circuit has recognized that “‘[o]ther
circuits have held that a plaintiff has shown ‘good cause’ for
purposes of a dismissal pursuant to Rule 4(m) when a United States
Marshal has failed to properly serve process through no fault of the
plaintiff.’”
Owens v. Riley, No. 11-1392, 2012 U.S. App. LEXIS 4560,
at *10 (6th Cir. Jan. 6, 2012) (quoting Rance v. Rocksolid Granit USA,
Inc. 583 F.3d 1284, 1287 (11th Cir. 2009)).
“A plaintiff using the
U.S. Marshal’s Service for service of process ‘must provide sufficient
information to identify the defendant with ‘reasonable effort.’”
Id.
(quoting Danik v. Housing Auth. of Baltimore City, No. 09-2240, 396
Fed. Appx. 15, 16 (4th Cir. Sept. 15, 2010) (per curiam) (affirming,
inter alia, district court’s grant of an extension of time to correct
error where pro se plaintiff provided incorrect address to Marshal’s
Service)).
Although not discussed in detail, Owens also cites to Graham v.
Satkowski, 51 F.3d 710, 713 (7th Cir. 1995).
Id. at *11.
In Graham,
the court stated that, in the case of a prisoner plaintiff, “the
prisoner need furnish the Marshals Service only with information
necessary to identify the defendants. . . .[O]nce the former prison
employee is properly identified, the Marshals Service should be able
to ascertain the individual’s current address and, on the basis of
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that information, complete service.”
Graham, 51 F.3d at 713 (citing
Sellers v. United States, 902 F.2d 598 (7th Cir. 1990)).
Under
Graham, “the prisoner may rely on the Marshals Service to serve
process, and the Marshals Service’s failure to complete service is
automatically ‘good cause’ to extend time for service under Rule
4(m).”
Id.
However, in remanding the case to the District Court, the Graham
court ordered that the Marshal’s Service’s failure to serve process
established good cause under Rule 4(m) only “[i]f the Marshals Service
could have obtained the new addresses of the defendants with
reasonable efforts[.]”
Id. (emphasis added).
See also Richardson v.
Johnson, 598 F.3d 734 (11th Cir. Mar. 2, 2010) (vacating dismissal of
pro se inmate plaintiff’s claims against defendant for failure to
serve under Rule 4(m) and remanding “for a determination whether
[defendant] McNealy can be located with reasonable effort.
If so,
McNealy must be served; otherwise, the district court properly
dismissed Richardson’s claim against McNealy”); Greene v. Holloway,
No. 99-7380, 210 F.3d 361 (table), 2000 U.S. App. LEXIS 4475, at *3-4
(4th Cir. Mar. 22, 2000) (remanding case for the district court to
evaluate whether the Marshal’s Service could have served the
defendant, whom the pro se plaintiff identified by name, badge number,
and last known place of employment, with “reasonable effort”).
Although the Sixth Circuit has not described what “reasonable
efforts” or “reasonable steps” the Marshal’s Service should take in
order to locate a defendant for purposes of effecting service of
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process, some courts have addressed this issue in the context of
inmate plaintiffs attempting to serve medical personnel employed
through a private contractor that provides health care services at a
state prison.
See, e.g., Tran v. Illinois Dep’t of Corr., Civil No.
09-302, 2011 U.S. Dist. LEXIS 13145 (S.D. Ill. Feb. 10, 2011); Cherry
v. Berge, No. 02-C-394-C, 2003 WL 23204656 (W.D. Wis. Feb. 13, 2003).
Under that line of authority, “[r]easonable efforts require only that
the marshals service use a public Internet website to search for a
defendant’s address and, if possible, contact the former employee’s
employer to obtain a forwarding address if the employer is willing to
give it.”
Cherry, 2003 WL 23204565, at *3.
Dist. LEXIS 13145, at *5-6 (same).
See also Tran, 2011 U.S.
Importantly, these courts do not
require that the Marshal’s Service “‘be a private investigator for
civil litigants or that [a Deputy Marshal] [] use software available
only to law enforcement officers to discover addresses for defendants
whose whereabouts are not discoverable through public records.’”
Tran, 2011 U.S. Dist. LEXIS 13145, at *6 (quoting Cherry, 2003 WL
23204565, at *3).
Therefore, the Marshal’s Service discharges its duty to take
“reasonable efforts” to try to effect service of process by conducting
an internet search and contacting a defendant’s former employer, even
if that search is ultimately unsuccessful.
Id. at *7-8 (dismissing
claims against a defendant, without prejudice, for failure to effect
service of process where, inter alia, neither a search of the internet
nor contact with that defendant’s former employer enabled the
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Marshal’s Service to serve defendant).
Finally, in the event that the
Marshal’s Service is able to obtain a defendant’s personal address,
the Marshal’s Service “should take great care to maintain that address
in confidence rather than reveal it on the marshals service form,
copies of which are filed in the court’s public file and mailed to the
prisoner.”
Cherry, 2003 WL 23204565, at *4.
In this case, as the Court noted supra, the Marshal’s Service
attempted to serve defendant Herren at MaCI by certified mail, but the
summons was returned unexecuted with the notation, “No longer employed
by State of Ohio.”
Doc. No. 20, PAGEID#: 66.
Since that time,
plaintiff has made some attempt to locate and serve defendant Herren.
See, e.g., Motion to Compel, PAGEID#: 75.
Under the particular facts
of this case and in an excess of caution, the Court concludes that
good cause exists for an additional extension of time to permit the
Marshal’s Service to make a reasonable effort to locate and serve
defendant Herren.
See Owens, 2012 U.S. App. LEXIS 4560, at *10.
Cf.
Dempsey v. Elmore, No. CV407-141, 2010 U.S. Dist. LEXIS 65845, at *2-3
(S.D. Ga. April 7, 2010) (directing Marshal’s Service, after failing
to effect service of process by mail, to attempt personal service upon
the defendant and, if service at that address failed, to “take
reasonable steps to locate [the defendant] and perfect service”).
In
reaching this conclusion, the Court notes that the prison institution
specifically invited this inquiry.
See Motion to Compel, PAGEID#: 75.
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WHEREUPON, plaintiff’s Motion to Compel, Doc. No. 24, is GRANTED
in part.
The Clerk is DIRECTED to furnish to the United States
Marshal’s Service a summons and copy of the Complaint, Doc. No. 4, for
service on defendant Correctional Officer Herren.
The United States Marshal’s Service is DIRECTED to take
reasonable steps to locate defendant Herren’s current address;
specifically, the Marshal’s Service shall, over the course of the next
45 days, conduct a public internet search for defendant Herren’s
current address and make inquiry of defendant Herren’s former
employer, MaCI, for the last known address of defendant Herren and
attempt to perfect service of process on this defendant.
If the Marshal’s Service is able to locate and serve defendant
Herren at his personal residence, the Marshal’s Service shall file
proof of service UNDER SEAL.
If, despite reasonable effort as
described in this Opinion and Order, the Marshal’s Service is unable
to locate and serve defendant Herren within 45 days from the date of
this Opinion and Order, it shall file the Process Receipt and Return,
Form USM-285, describing in the “Remarks” section of that document the
steps that it took to attempt to effect service of process on
defendant Herren.
Finally, plaintiff is ADVISED that if the Marshal’s Service is
unable, despite its reasonable efforts, to locate and serve defendant
Herren, the Court will issue an order requiring plaintiff to show good
cause why plaintiff’s claims against this defendant should not be
dismissed, without prejudice pursuant to Fed. R. Civ. P. 4(m), for
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failure to effect service of process.
December 9, 2013
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
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