McCain v. Jenkins et al

Filing 75

ORDER denying as moot 74 Motion for a Pretrial Conference. The Ohio Attorney General is DIRECTED to file the last known address of Theresa MaGill under seal WITHIN FOURTEEN (14) DAYS of the date of this Order. Upon receipt of her address, the United States Marshal is DIRECTED to serve by certified mail upon Defendant Magill a summons and a copy of the Complaint. Signed by Magistrate Judge Chelsey M. Vascura on 9/25/2017. (kdp)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

MICHAEL D. MCCAIN, SR.,
Plaintiff,
Civil Action 2:15-cv-1262
Judge Michael H. Watson
Magistrate Judge Chelsey M. Vascura

v.

CHARLOTTE JENKINS, et al.,
Defendants.

ORDER
This matter is before the Court for consideration of Plaintiff’s Motion for a Pretrial
Conference (ECF No. 74) in which Plaintiff requests a conference to discover the “whereabouts”
of the defendants over whom he still needs to effect service. According to Plaintiff, officials at
Chillicothe Correctional Institution (“CCI”) have ignored his requests for the addresses of the
defendants he needs to be serve.
This case, filed in April 2015, has languished for more than two years and yet service
has not yet been perfected over all defendants. On June 22, 2017, Plaintiff filed a Motion
requesting additional time to effect service on Defendants Bethal, Gill, and Lt. Ball. (ECF No.
70.) The Court granted his request, allowing Plaintiff until October 26, 2017, to effect service
on these Defendants. (ECF No. 71.) On June 30, 2017, Defendants Ball and Bethal, along with
other named Defendants, filed their Answer. (ECF No. 72.) Plaintiff has yet to perfect service
over Defendant Gill.
Ordinarily, a plaintiff is responsible for effecting service. See Fed. R. Civ. P. 4(c)(1)
(indicating that a plaintiff is responsible for serving the defendant with both a summons and the

complaint within the time permitted under Rule 4(m).) It is often difficult, however, for inmates
proceeding in forma pauperis and without counsel to obtain the current address of a former
prison employee in light of prison officials’ reluctance to provide inmates with the home
addresses of current or former employees. See, e.g., Ely v. Smith, No. 1:07-cv-261, 2008 WL
2076651, at *2 (E.D. Tenn. May 15, 2008) (noting that “[i]t would be virtually impossible for
[the plaintiff] to obtain [the officer’s] current address since prison guards typically do not want
prisoners to have their home addresses, and it is often very difficult, if not impossible, for
prisoners to learn the current address of such employees”); Richardson v. Johnson, 598 F.3d 734,
739–40 (11th Cir. 2010) (“It is unreasonable to expect incarcerated and unrepresented prisonerlitigants to provide the current addresses of prison-guard defendants who no longer work at the
prison.”). Some Courts have responded to this issue by placing the burden on the Marshal’s
Service to obtain the current address. See, e.g., Ely, 2008 WL 2076651, at *2; Sellers v. U.S.,
902 F.2d 598, 602 (7th Cir. 1990); Richardson 598 F.3d at 739–40; Murray v. Pataki, 378 F.
App’x 50, 52 (2nd Cir. 2010). Other courts have directed the prison that formerly employed the
defendant to file under seal the last known address, reasoning that requiring the Marshal’s
Service to obtain the address is burdensome. See, e.g., Allen v. Siddiqui, No. 3:07CV-P261-H,
2008 WL 2217363, at *1 (W.D. Ky. May 27, 2008); Mingus v. Butler, No. 05-73842, 2007 WL
925685, at *1 (E.D. Mich. Mar. 28, 2007).
The Court finds that having the Criminal Justice Section of the Ohio Attorney General’s
Office file Defendant Gill’s last known address under seal is a reasonable and efficient solution.
The Ohio Attorney General’s Office has notified the Court that they are willing to do so, but
informed the Court that the only person with the last name “Gill” working at CCI during the time
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this cause of action arose is an individual named Theresa MaGill. Accordingly, the Ohio
Attorney General is DIRECTED to file the last known address of Theresa MaGill under seal
WITHIN FOURTEEN (14) DAYS of the date of this Order. Upon receipt of her address, the
United States Marshal is DIRECTED to serve by certified mail upon Defendant Magill a
summons and a copy of the Complaint. If service is returned unexecuted, the United States
Marshal is DIRECTED to find and serve upon Defendant MaGill a summons and a copy of the
Complaint.
Plaintiff’s Motion for a Pretrial Conference is therefore DENIED AS MOOT. The
Court notes that this case is exempt from the Federal Rules of Civil Procedure initial disclosures
and discovery conference requirements set forth in Rules 26(a)(1) and 26(f). See Fed. R. Civ. P.
26(a)(1)(B)(iv) and 26(f)(1). The Court will issue a scheduling order establishing case deadlines
in accordance with Federal Rule of Civil Procedure 16(b) once Defendant MaGill has been
properly served and has had an opportunity to respond to Plaintiff’s Complaint.
IT IS SO ORDERED.

/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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