Sledge v. Shelby County Division of Corrections et al

Filing 19

ORDER TO ISSUE THIRD-PARTY SUBPOENA. Signed by Chief Judge S. Thomas Anderson on 9/1/17. (Anderson, S. Thomas)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TENNESSEE EASTERN DIVISION CORDARLRIUS SLEDGE, Plaintiff, v. STATE OF TENNESSEE, et al., Defendants. ) ) ) ) ) ) ) ) ) No. 2:16-cv-02259-STA-egb 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 2

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