Chambers v. Ishee et al

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL CASE NO. 5:23-cv-00005-MR
PATRICK J. CHAMBERS, )
)
Plaintiff, )
)
vs. ) ORDER
)
TODD ISHEE, et al., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the North Carolina Department
of Adult Corrections’ (NCDAC) sealed Notice [Doc. 16] regarding the Court’s
Request for Waivers of Service [see Doc. 10].
The Complaint passed initial review1 against Defendants Lisa Huffman
and Kelly A. Towery (a/k/a Kelly A. Reynolds),2 and the Court initiated the
procedure for waiver of service. [Doc. 10]. NCDAC waived service for
1 The Plaintiff filed an “Objection” to the Order on initial review, which was denied on June
20, 2023. [Doc. 17]. However, the Court granted Plaintiff 30 days to file a superseding
Amended Complaint should he wish to do so. [Id.]. The Plaintiff was cautioned that, if he
failed to timely file a superseding Amended Complaint, the Court would proceed on the
claims identified in the Order on initial review. [Id. at 3; Doc. 9]. The time to amend has
expired; accordingly, the Court will proceed on the claims in the original Complaint that
passed initial review. [Docs. 1, 9].
2 The Plaintiff refers to this Defendant as “Nurse Towery” in the Complaint. The Clerk will
be instructed to correct the Court’s record with this Defendant’s full name.
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Defendant Huffman. [Doc. 15]. However, NCDAC is unable to waive service
for Defendant Towery, who is no longer employed with NCDAC; it has
provided this Defendant’s last known address under seal. [See Doc. 16].
The Clerk will be directed to notify the U.S. Marshal that Defendant
Towery needs to be served with the summons and Complaint in accordance
with Rule 4 the Federal Rules of Civil Procedure. If Defendant Towery
cannot be served at the address provided by NCDAC, the U.S. Marshal shall
be responsible for locating her home address so that she may be served.
See 28 U.S.C. § 1915(d) (in actions brought in forma pauperis under §
1915(d), “[t]he officers of the court shall issue and serve all process, and
perform all duties in such cases”); Fed. R. Civ. P. 4(c)(3) (“At the plaintiff’s
request, the court may order that service be made by a United States
Marshal or deputy marshal or by a person specially appointed by the court.
The court must so order if the plaintiff is authorized to proceed in forma
pauperis under 28 U.S.C. § 1915….”).
If the U.S. Marshal is unable to obtain service on Defendant Towery,
the U.S. Marshal shall inform the Court of the reasonable attempts to obtain
service. The U.S. Marshal shall not disclose Defendant’s home address to
the pro se incarcerated Plaintiff and shall file any document containing such
address under seal.
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IT IS, THEREFORE, ORDERED that the U.S. Marshal shall use all
reasonable efforts to locate and obtain service on Defendant Kelly A.
Towery (a/k/a Kelly A. Reynolds). If the U.S. Marshal is unable to obtain
service on Defendant Towery, the U.S. Marshal shall inform the Court of the
reasonable attempts to obtain service.
The Clerk is respectfully instructed to mail a copy of the Complaint
[Doc. 1], the Sealed Notice containing Defendant Towery’s last known
addresses [Doc. 16], and this Order to the U.S. Marshal.
IT IS FURTHER ORDERED that the Clerk is instructed to substitute
Kelly A. Towery (a/k/a Kelly A. Reynolds) for “FNU Towery” in the Court’s
record.
IT IS SO ORDERED.
Signed: August 8, 2023
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