United States District Court, D. Nebraska
JOSHUA M. NICKMAN, Plaintiff,
JUAN M. ZARRAGA, Individual Capacity; SHELBY L. RAWLINGS, Individual Capacity; ANDREW L. MCLEAN, Individual Capacity; COLTON J. GUERRERO, Individual Capacity; MICHAEL TUBBS, Individual Capacity; JESUS J. RAMIREZ, Individual Capacity; JAIME LYN CRAFT, Individual Capacity; JESSICA M. STROUP, Individual Capacity; SCOTT B. ANDREALA, Individual Capacity; ERIC JON LITTLE, Individual Capacity; JONATHAN R. TRIPP, AND Individual Capacity; and AARON GRAY, Individual Capacity; Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
matter is before the court on Plaintiff's Motions for
Status. (Filing No. 41; Filing No. 45.)
Plaintiff seeks information about whether Defendant Jonathan
R. Tripp (“Tripp”) has been served with process.
is in custody at the Nebraska State Penitentiary in Lincoln,
Nebraska. He filed his Complaint (Filing No. 1) in
this matter on June 13, 2016. He filed his Amended Complaint
(Filing No. 24) on September 19, 2016.
court conducted an initial review of the Amended Complaint in
accordance with 28 U.S.C. § 1915(e)(2) on October 12,
2016. (Filing No. 25.) The court determined that the
case could proceed to service of process as to
Plaintiff's Eighth Amendment excessive force claims and
state law claims against several Defendants in their
individual capacities, including Tripp. (Id.) The
court ordered the Marshals Service to serve process on
Defendants after Plaintiff informed the court that he did not
know most of their addresses. (See Filing No. 26 at
CM/ECF p. 4; Filing No. 27.)
November 1, 2016, the clerk of the court issued summons on
each Defendant in their individual capacity. (Filing No.
31.) On November 9, 2016, the Marshals Service returned
the summons for Tripp as unexecuted. (Filing No.
33.) The Marshals Service sent the summons for Tripp via
certified mail to Hall County Corrections in Grand Island,
Nebraska. (Id.) It was returned as undeliverable
because Tripp is not at that address. (Id.) As of
the date of this order, all Defendants with the exception of
Tripp have been served in their individual capacities.
(See Filing No. 44.)
issue before the court is that Tripp has not been served with
process. Plaintiff has informed the court that he does not
know Tripp's address. (See Filing No. 26 at CM/ECF p.
who is proceeding in forma pauperis in this matter,
is entitled to rely on service by the United States Marshals
Service. Wright v. First Student, Inc., 710 F.3d
782, 783 (8th Cir. 2013). Pursuant to 28 U.S.C. §
1915(d), in an in forma pauperis case, “[t]he
officers of the court shall issue and serve all process, and
perform all duties in such cases.” See Moore v.
Jackson, 123 F.3d 1082, 1085 (8th Cir. 1997). So long as
the plaintiff has provided the necessary information, the
Marshals Service's failure to effect service is
automatically good cause within the meaning of Rule 4(m) of
the Federal Rules of Civil Procedure for failing to serve
process. Moore, 123 F.3d at 1085-86; Gonzalez v.
L'Oreal USA, Inc., 489 F.Supp.2d 181, 184 (N.D.N.Y.
2007). See Beyer v. Pulaski County Jail, 589
Fed.Appx. 798, 799 (8th Cir. 2014) (quoting Graham v.
Satkoski, 51 F.3d 710, 713 (7th Cir. 1995) (when court
instructs Marshal to serve papers for prisoner, prisoner need
furnish no more than information necessary to identify
defendant; Marshal should be able to ascertain
defendant's current address)).
the court ordered Plaintiff to serve Defendants, including
Tripp, with process by February 9, 2017. (Filing No. 25
at CM/ECF p. 5.) On October 26, 2016, the court directed
the clerk of the court to complete the summons forms and
issue them for service on Defendants in their individual
capacities. (Filing No. 27 at CM/ECF p. 2.) On
November 1, 2016, the clerk of the court issued the summons.
(Filing No. 31.) On November 9, 2016, the Marshals
Service returned the summons for Tripp as unexecuted.
(Filing No. 33.) The Marshals Service sent the
summons for Tripp via certified mail to Hall County
Corrections in Grand Island, Nebraska. (Id.) It was
returned as undeliverable because Tripp is not at that
address. (Id.) The court will, once again, direct
the clerk of the court to issue the summons form and forward
it to the Marshals Service for service of process on Tripp in
his individual capacity.
clerk of the court is directed to obtain a current address
for Defendant Jonathan R. Tripp from the United States
Marshals Service for service of process on him in his
obtaining the necessary address, the clerk of the court is
directed to complete and issue a summons for Defendant
Jonathan R. Tripp in his individual capacity at the address
provided by the Marshals Service. The clerk of the court is
further directed to deliver the summons, the necessary
USM-285 Form, the Amended Complaint (Filing No. 24),
a copy of this order, and a copy of the order granting
Plaintiff's motion for leave to proceed in forma pauperis
(Filing No. 6) to the Marshals Service for service
of process on Defendant Jonathan R. Tripp.
clerk of the court is directed to file under seal any
document containing the current address ...