Opinion
Civil Action No. 06-cv-01222-EWN-KLM.
October 17, 2008
ORDER
ORDER ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff's Motion for Service at Court Expense — Subpoena and Supplemental Complaint [Docket No. 159; Filed August 11, 2008] (the "Motion for Service").
In Plaintiff's Motion for Service [#159], he requests that the Court order "service of summons and supplemental complaint by U.S. Marshals at court expense . . . on CSP Defendant Sergeant Martin also known as Sgt. Oates. . . ." Motion for Service [#159] at 1. On May 20, 2008, this Court issued an Order to Show Cause directing Plaintiff to show cause why certain Defendants who had not yet been served with the Summons and Supplemental Complaint in the instant action should not be dismissed. Order to Show Cause [#148] at 3-4. Sgt. Oates is one such Defendant who has not yet been served in the instant case. Id. Plaintiff responded to the Order to Show Cause on June 2, 2008, and stated that Sgt. Oates was also known as Sgt. Martin. Response [#152] at 3. Therefore, during the Preliminary Pretrial Conference held on August 21, 2008, the Court ordered Defendants' counsel to file a Status Report regarding whether Defendant Sgt. Oates/Martin was a DOC employee, and whether Defendants' counsel could accept service of the summons and supplemental complaint on behalf of Sgt. Oates/Martin. Minute Order [#171] at 1. Defendants filed a Status Report on August 28, 2008, and stated that there was no DOC employee with the name of Oates. Status Report [#173] at 1. However, Defendants' counsel stated that there was a CDOC employee with the last name of Martin, and that Defendants' counsel was in the process of determining whether that employee had ever come into contact with Plaintiff such that Defendants' counsel could accept service of the summons and supplemental complaint on behalf of C/O Martin. Id. at 1-2. By second Status Report dated October 10, 2008, Defendants' counsel stated that he did not believe that C/O Martin was involved in the incidents described by Plaintiff in his Supplemental Complaint, and that C/O Martin was not a proper party to this action. Second Status Report [#181] at 2. Therefore, Defendants' counsel has not entered an appearance on behalf of Sgt. Oates/Martin and Defendant Sgt. Oates/Martin has not yet been served in this case. Because the Court cannot determine whether C/O Martin is the appropriate individual on the basis of the current record, IT IS HEREBY ORDERED that Plaintiff's Motion for Service at Court Expense — Subpoena and Supplemental Complaint [Docket No. 159; Filed August 11, 2008] is GRANTED. The Court will order that C/O Martin be served by separate Order.
IT IS FURTHER ORDERED that the Clerk of the Court shall correct the caption to change named Defendant "Sgt. Oates" to read "C/O Martin".