Sledge v. Shelby County Division of Corrections et al
ORDER TO ISSUE THIRD-PARTY SUBPOENA. Signed by Chief Judge S. Thomas Anderson on 9/1/17. (Anderson, S. Thomas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
STATE OF TENNESSEE, et al.,
ORDER TO ISSUE THIRD-PARTY SUBPOENA
Plaintiff filed this action pursuant to 42 U.S.C. § 1983 for the alleged violation of his
constitutional rights. On June 26, 2017, the summons as to Defendant Sergeant Danny McClain
was returned unexecuted with the notation that Sergeant McClain is “no longer employed [at the
Shelby County Division of Corrections]” (ECF No. 18).
When an indigent plaintiff has taken reasonable steps to identify and locate a defendant,
the Court is responsible for ensuring that service is properly effected:
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) (citing Mallard v. U.S. District Court, 490 U.S.
296, 302 (1989); Graham v. Satkoski, 51 F.3d 710, 712 (7th Cir. 1995)). In the present case,
Plaintiff has sufficiently identified Defendant.
The court hereby DIRECTS the Clerk to prepare a third-party subpoena for Shelby
County Division of Corrections, 1045 Mullins Station Road, Memphis, TN 38134 and deliver it
to the Marshal for service, along with a copy of this order. The subpoena shall direct the
Division to supply the last known home address and telephone number of Sergeant Danny
McClain, a former employee of the Shelby County Division of Corrections at the time of the
alleged incident that gives rise to this action.
This information should be provided on or before November 1, 2017. Due to security
and privacy concerns, information provided in compliance with the subpoena shall not be made
available to Plaintiff but shall be filed by the Clerk ex parte and under seal. A summons shall
then be re-issued and provided to the Marshal for service.
It is so ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: September 1, 2017
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