McGowan v. Ruiz et al (TVV)

Filing 52

MEMORANDUM AND ORDER. The motion [Doc. 50] is GRANTED to the extent the Clerk is DIRECTED to issue alias summons for the three unserved defendants with their titles and the U.S. Marshal is ORDERED to personally serve copies of the s ummons and complaint upon defendants Unit Manager Fred James, Correctional Officer George King, and Correctional Officer W. Potter at the Morgan County Correctional Complex or wherever the defendants may be found. Plaintiff's motion for sanction s against defense counsel based upon the lack of service[Doc. 48] is DENIED. The motion [Doc. 49] is GRANTED to the extent the defendants are ORDERED to respond to plaintiff's discovery requests. The motion for an emergency restraining order [Doc. 46] is DENIED. Signed by Chief District Judge Thomas A Varlan on 8/26/14. (JBR) (c/m to Plaintiff. Alias Summons issued and forwarded to USMS) Modified text on 8/26/2014 (JBR).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
JOHNNY L. McGOWAN, JR.,
Plaintiff,
v.
SHEILA RUIZ, et al.,
Defendants.

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No.:

3:12-cv-263-TAV-CCS

MEMORANDUM AND ORDER
This is a pro se prisoner's civil rights action under 42 U.S.C. § 1983; plaintiff has
paid the filing fee. The defendants are employees at the Morgan County Correctional
Facility. Process was returned executed as to seven defendants and unexecuted as to the
remaining five defendants, with several of the envelopes simply marked "refused." The
U.S. Marshals Service served the summons and complaint upon all the defendants by
certified mail.
Counsel for the defendants who were served with process was ordered to inform
the Court as to the best way to serve process upon the remaining five defendants. In
response, counsel stated that the service packets were apparently returned because they
did not contain full names and instead were addressed to individuals who shared the same
or similar name with another person at the prison. Counsel further stated that the prison
administration had been instructed to accept service and to attempt to direct the service

packets to the appropriate person, but that it would be helpful if plaintiff could be more
specific as to the defendant's position or rank.
Plaintiff then filed a notice that the following defendants had not been served with
process: Unit Manager Fred James, Correctional Officer George King, Corporal B.
Foster, Correctional Officer L. Auger, and Correctional Officer W. Potter. Plaintiff also
moved the Court for assistance in serving these individuals.

Plaintiff's motion for

assistance was granted to the extent the Clerk was directed to issue alias summons for the
aforementioned five defendants with their titles, which the U.S. Marshal was ordered to
serve, either by certified mail with the defendant's title or personal service, as was
appropriate and necessary.
The U.S. Marshals Service then attempted to serve the five defendants by certified
mail. The service was successful as to defendants Corporal B. Foster and Correctional
Officer L. Auger, and process was returned executed as to those defendants. Process was
returned unexecuted as to defendants Unit Manager Fred James, Correctional Officer
George King, and Correctional Officer W. Potter, with the envelopes marked "refused."
Plaintiff moves the Court to order service of process upon these defendants. The motion
[Doc. 50] is GRANTED to the extent the Clerk is DIRECTED to issue alias summons
for the three unserved defendants with their titles and the U.S. Marshal is ORDERED to
personally serve copies of the summons and complaint upon defendants Unit Manager
Fred James, Correctional Officer George King, and Correctional Officer W. Potter at the
Morgan County Correctional Complex or wherever the defendants may be found.
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Plaintiff's motion for sanctions against defense counsel based upon the lack of service
[Doc. 48] is DENIED.
Plaintiff has also filed a motion to compel discovery, in which he states that the
defendants refuse to comply with his discovery requests which have been outstanding for
more than six months. The defendants have not filed a response to the motion to compel.
The motion [Doc. 49] is GRANTED to the extent the defendants are ORDERED to
respond to plaintiff's discovery requests.
Plaintiff has also filed a motion for an emergency restraining order, asking that he
not be returned to the Morgan County Correctional Complex. At the time he filed the
motion, plaintiff was confined in the West Tennessee State Penitentiary. Shortly after
filing that motion, plaintiff informed the Court of his transfer to the Charles Bass
Correctional Complex. He has since been transferred to the Northwest Correctional
Complex, where he remains. The housing of state prisoners is a matter within the
discretion of the officials of the Tennessee Department of Correction. The motion for an
emergency restraining order [Doc. 46] is DENIED.

ENTER:

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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