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Xiong v. McCormick

United States District Court, W.D. Oklahoma

February 21, 2019

PAO XIONG, Plaintiff,
WILLIAM McCORMICK et al., Defendants.



         Now 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.

         Incomplete filing of Complaint

         It has 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.

         Service on Defendants McCormick, Scarantino, and Alberts

         On May 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.

         The 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.

         Plaintiff 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 security concerns.

         Balancing 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 joint notices.
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 ...

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