BUTLER v. SISSEM et al

Filing 47

ORDER granting 43 Plaintiff's Motion for Leave to Serve Defendant Boggio. Plaintiff is instructed to submit a USM-285 form for Dr. Boggio containing his correct address within thirty (30) days of the date of this Order. Upon receipt of the required USM-285 form, the Court will order the United States Marshals Service to attempt to serve Dr. Boggio at the provided address. IT IS SO ORDERED. Signed by Magistrate Judge Richard A. Lanzillo on 1/23/19. (jdg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN BUTLER,
Plaintiff,
v.
HOWARD SISSEM, et al.,
Defendants.

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Civil Action No. 18-141 Erie

Magistrate Judge Richard A. Lanzillo

MEMORANDUM ORDER
Plaintiff John Butler (“Plaintiff”) initiated this civil rights action against, inter alia, Dr.
Jose Boggio, the former prison physician at SCI-Albion. Id. Plaintiff’s initial attempt to have
the United States Marshals Service effectuate service on Dr. Boggio failed because Plaintiff
could not identify a current address for Dr. Boggio. ECF Entry 6/29/18. On September 18,
2018, the Court ordered Plaintiff to show cause for his failure to submit the proper paperwork to
the U.S. Marshal for service on Defendant Boggio. ECF No. 18. In his response, Plaintiff
indicated that he had diligently attempted to find Dr. Boggio’s address but had been unable to do
so because he was not allowed to access the internet and because staff at SCI-Albion declined to
provide Boggio’s address to him. ECF No. 22. Based on Plaintiff’s failure to demonstrate good
cause for his inability to effectuate service, the Court dismissed Dr. Boggio from this action,
without prejudice, pursuant to Rule 4(m) on November 7, 2018. ECF No. 26.
Pending before the Court is Plaintiff’s Motion for Leave to Serve Defendant Boggio.
ECF No. 43. In his motion, Plaintiff avers that he has now obtained a correct address for Dr.
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Boggio and requests another attempt to effectuate service. ECF No. 44 at 4. Plaintiff suggests
that he has exercised due diligence throughout this litigation, including in his attempts to serve
Dr. Boggio, and maintains that the statute of limitations does not appear to have run on his
claims against Dr. Boggio. Id. In addition, Plaintiff notes that counsel for the other defendants
in this action inadvertently entered an appearance on behalf of Dr. Boggio on July 26, 2018,
leading him to believe that Dr. Boggio had already been served. See ECF Nos. 10, 12, 17.
In light of the foregoing, and given that Dr. Boggio’s dismissal from this action was
without prejudice, the Court concludes that Plaintiff has demonstrated good cause for his request
for an extension of the time to effectuate service under Rule 4(m). See, e.g., George v. Warden,
523 Fed. Appx. 904, 908 n. 8 (3d Cir. 2013) (noting that the time for proper service must be
extended where plaintiff has demonstrated good cause) (citing Fed. R. Civ. P. 4(m)).
Accordingly, Plaintiff’s Motion for Leave to Serve Defendant Boggio (ECF No. 43) is
GRANTED. Plaintiff is instructed to submit a USM-285 form for Dr. Boggio containing his
correct address within thirty (30) days of the date of this Order. Upon receipt of the required
USM-285 form, the Court will order the United States Marshals Service to attempt to serve Dr.
Boggio at the provided address.
IT IS SO ORDERED.

/s/ Richard A. Lanzillo_______
RICHARD A. LANZILLO
United States Magistrate Judge
Dated: January 23, 2019

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