Opinion
Case No. 1:09-cv-346.
March 8, 2010
ORDER
Before the Court are Plaintiff's objections to the Report and Recommendation of the Magistrate Judge. (Doc. 33) Plaintiff, who is incarcerated and is proceeding pro se, alleges that Defendants violated his constitutional rights by deliberately denying him needed medical care. Defendant Dr. Owen was formerly a physician at the Southern Ohio Correctional Facility. Plaintiff attempted to serve Dr. Owen at the Columbus, Ohio address of the Ohio Department of Rehabilitation and Correction. Despite the fact that Dr. Owen was no longer under contract with ODRC, someone signed for delivery of Plaintiff's summons and complaint in July 2009. After Dr. Owen failed to respond to the complaint, Plaintiff moved for entry of default judgment. (Doc. 19)
The Attorney General entered a limited appearance on Dr. Owen's behalf and opposed Plaintiff's motion. (Doc. 21) Dr. Owen argued that she was never properly served under Fed.R.Civ.P. 4. In response, Plaintiff argued that the summons he sent was not returned to him, and that the individual who signed for receipt of the summons should have given him some notice that he was not authorized to accept service for Dr. Owen. Plaintiff also argued that he is unable to obtain Dr. Owen's correct address. Based upon the undisputed evidence that Dr. Owen has not been properly served, the Magistrate Judge recommends that Plaintiff's motion for default judgment be denied. (Doc. 30)
The Court concludes that Plaintiff has not properly served Dr. Owen. The Court therefore adopts the Magistrate Judge's Report, and DENIES Plaintiff's motion for default judgment.
The Court also notes that Plaintiff has been given until March 15 in which to obtain service on Dr. Owen, but it is not clear that Plaintiff will be able to do so without a proper address. Recognizing that Plaintiff is a prisoner and for security reasons cannot obtain the home address of former prison personnel, the Court orders the Ohio Attorney General, within ten (10) days, to submit in camera the home address of defendant Owen, if available. The Court shall then instruct the United States Marshal Service to attempt service of process on defendant Owen without disclosing the home address to Plaintiff.
SO ORDERED.