United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN, UNITED STATES DISTRICT JUDGE
before the Court are various motions filed by Plaintiff Pao
Xiong and by Defendants Gamble, Freeman, Simmons, “John
Doe” Lepird (Counselor), Avant, and Turnage
(collectively, “Federal Defendants”). The Court
considers certain of these and other matters herein.
filing of Complaint
come to the Court's attention that several pages were
inadvertently omitted when Plaintiff's Complaint (Doc.
No. 1) was scanned into the Court's electronic filing
system. Specifically, the pages originally numbered 19, 20,
21, and 22 are partially or entirely missing from the filed
pleading. See Compl. at ECF pp. 26-27 (paras.
45-58). The Clerk of the Court is therefore directed to file
the pages originally numbered 19, 20, 21, and 22 as a
separate document to allow the parties to view the previously
omitted pages. If the Federal Defendants wish to supplement
their previously filed motion to dismiss based upon the
content of these additional four pages, they may file such a
supplement within 14 days of the filing of the omitted pages.
If any such supplement is filed, Plaintiff may respond within
14 days of that supplement's filing.
on Defendants McCormick, Scarantino, and Alberts
7, 2018, the Court issued an Order directing Plaintiff to
cause a copy of his Complaint, along with an executed summons
issued by the Court Clerk, to be served on each named
Defendant in accordance with Rule 4 of the Federal Rules of
Civil Procedure. See Order of May 7, 2018 (Doc. No.
37) at 1-2. The Order also authorized the United States
Marshals Service (“USMS”) to attempt service on
each Defendant for whom Plaintiff properly completed a
request for the issuance of summons. See Id. at 2.
On July 24, 2018, the Court directed that summonses be issued
and that the USMS should attempt to accomplish service upon
Defendants. See Order of July 24, 2018 (Doc. No. 48)
at 1-2. With this USMS assistance, Plaintiff had 90 days from
the date of the Order-i.e., until October 22, 2018-to serve
each Defendant and to ensure that a waiver or proof of
service for each Defendant was filed with the Court. See
Id. The Court has received executed returns of service
for six of the nine named Defendants, and counsel has entered
his appearance on behalf of those Federal Defendants.
See Doc. Nos. 56, 57, 58, 59, 60, 61, 104.
returns of service for Defendants William “Billy”
McCormick, Thomas J. Scarantino, and “John Doe”
Alberts were returned unexecuted. See Doc. Nos. 62,
63, 64; see also Doc. Nos. 51, 53, 54. Plaintiff has
now filed two motions asking that the Court order various
federal entities, as well as the served Defendants, to
disclose the unserved Defendants' addresses and telephone
numbers. Necessarily implied in Plaintiff's request is an
extension of his now-expired 90-day service deadline.
has not shown that the Court may or should direct that
entities who are not parties to this lawsuit provide service
information. The Court recognizes, however, that Plaintiff
has attempted to obtain the necessary contact information on
his own and that although service is ultimately
Plaintiff's responsibility, it can be “unreasonable
to expect incarcerated and unrepresented prison-litigants to
provide the current addresses” of prison employees for
the purpose of service. Richardson v. Johnson, 598
F.3d 734, 739-40 (11th Cir. 2010); see also Morrow v.
Jones, No. CIV-09-633-M (W.D. Okla. Nov. 2, 2009). The
Court also understands that providing addresses of current or
former prison employees to an incarcerated person raises
these considerations, as well as the fact that judicial
efficiency requires this case to move forward,
Plaintiff's request (Doc. Nos. 70, 73) is GRANTED IN PART
AND DENIED IN PART, as follows:
1. Plaintiff's request that the Court order nonparties to
provide information and that he be provided with telephone
numbers for any Defendant is denied.
2. If any Defendant possesses personal knowledge or records
reflecting the last known addresses of Defendants McCormick,
Scarantino, or “John Doe” Alberts, that Defendant
is ordered to file the address, under seal, with the Court by
March 7, 2019.
3. No Defendant or attorney is required to take any action to
determine these last known addresses from any outside source;
rather, if no such information is possessed by a Defendant,
he or she should file a notice by the above deadline advising
Plaintiff and the Court of that fact. Defendants may file
4. Upon receipt of an address for an unserved Defendant filed
in accordance with the above instructions, the Clerk of the
Court is directed to provide the address to the USMS in a
manner that ensures its confidentiality, along with a copy of
the Complaint (Doc. No. 1), the Court's Orders of May 7,
2018, and July 24, 2018 (Doc. Nos. 37, 48), this Order, and a
summons for service for that Defendant.
5. The USMS is directed to ensure that any address provided
for a Defendant remains confidential and does not appear on
any document sent by the USMS to Plaintiff or filed with the
Court, including ...