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Raiford v. County of Forrest

United States District Court, S.D. Mississippi.

April 23, 2018

ROBERT EARL RAIFORD, #07425-043 PLAINTIFF
v.
COUNTY OF FORREST, MISSISSIPPI, et al. DEFENDANTS

          ORDER

          Michael T. Parker United States Magistrate Judge.

         THIS MATTER is before the Court on Plaintiff's Motion [64] to Take Judicial Notice of Fraud Upon the Court and his Motion [65] for Leave to Change Parties Names from John Does. In Motion [64], Raiford requests that William Allen, attorney for the Forrest County Defendants, be sanctioned and the Court take notice that he purportedly “hid” the real name of Defendant “Unknown Scott” and did not provide the location of Defendant Greg Anderson so that Anderson could be served. In Motion [65], Plaintiff requests to add Sky Johnson in place of “Unknown Scott, ” add her employer Forrest General Hospital, and add William Allen's law firm as defendants. For the reasons which follow, the Court DENIES the Motion [64] to Take Judicial Notice of Fraud Upon the Court and GRANTS IN PART AND DENIES IN PART the Motion [65] for Leave to Change Parties Names from John Does.

         Factual and Procedural Background

         Plaintiff alleges that on October 5, 2013, while he was temporarily housed at the Forrest County Jail, Defendant Deputy Greg Anderson accidentally provided him a used syringe for self-injection of his daily insulin and that Plaintiff stuck himself with it. Nearly three years after this incident occurred, Plaintiff filed a voluminous complaint suing over 30 defendants, [1] most of whom are John Does, or “unknowns.” See Complaint [1]; Memo [7] in Support of Complaint.

         On April 27, 2017, to aid Plaintiff in getting the proper defendants before the Court, the Court sent an order and waivers of service to William Allen, who routinely represents Forrest County and its officers in this Court. This included waivers of service for “Unknown Scott” and Greg Anderson.

         On May 30, 2017, Billy McGee, William Robert Allen, Betty Carlisle, and Debra Brown waived service of process. See Waivers [14, 15]. On June 5, 2017, Forrest County waived service of process. See Waiver [16]. “Unknown Scott” did not waive service and no response was filed on her behalf. The Court then ordered the Defendants that were before the Court to provide Scott's full name, if known, and Scott's address. See Order [20]. Plaintiff was also ordered to provide this information and explain why the claims against unknown defendants should not be dismissed if neither he nor the defendants could provide the identifying information. Id

         The Defendants filed a response indicating they do not employ “Unknown Scott” and they are unsure of her name, but that she may be an employee of Forrest General Hospital. They also provided the last known address of Greg Anderson, as he was no longer employed by Forrest County. See Response [26]. Plaintiff did not provide the information as ordered, but merely moved to make Defendants provide the information and moved for more time to serve process. See Motions [23] and [24]. The United States Marshal Service attempted to serve Greg Anderson at the address provided by Defendants, but could not do so as he no longer lived at the address provided. See U.S. Marshal's Return Unexecuted [38]. At the time, the Court did not have enough information to attempt to have “Unknown Scott” served.

         At the Omnibus and Spears hearing, the Defendants before the Court suggested that “Unknown Scott” may be Nurse Sky Johnson. However, Plaintiff insisted numerous times under oath that Nurse Sky Johnson was not the individual he intended to sue, and plainly stated that “Unknown Scott” was a different individual. Plaintiff even differentiated “Unknown Scott” and “Sky Johnson” at the hearing by stating that “Ms. Sky is a big ol' fat woman. Ms. Scott is a little small woman. Ms. Scott is a small woman, Your Honor.” He also indicated that Scott worked in the daytime and Sky Johnson worked at night. The Court then ordered the Defendants to identify and provide the first name of Defendant “Unknown Scott” and provide an address to the Court, under seal, at which she may be served. See Omnibus Order [50]. The Defendants filed a response indicating that “Unknown Scott” is still believed to be Nurse Sky Johnson and providing an address at which Johnson may be served. See Response [60].

         Motion [64] to Take Judicial Notice of Fraud Upon the Court

         Plaintiff now claims Sky Johnson is the correct defendant, accuses Mr. Allen of willfully “hiding” the identity of “Unknown Scott, ” and asks for sanctions against Mr. Allen and his firm.[2]Plaintiff's request and allegations are frivolous. Plaintiff accuses Mr. Allen of “sitting mute” when the Court addressed matters relating to Unknown Scott at the omnibus hearing. See Motion [65] at 2. However, Mr. Allen was far from mute and clearly identified Sky Johnson at the hearing, and at that time, Plaintiff flatly and clearly maintained that “Unknown Scott” was not Sky Johnson. It is ludicrous to expect the court to discipline counsel and take judicial notice of fraud when Sky Johnsons' name was provided as ordered by the Court and Plaintiff insisted that Sky Johnson was not “Unknown Scott.”[3]

         Plaintiff also asks for sanctions against Mr. Allen because he did not provide an address where Greg Anderson could be served. See Motion [64]. Plaintiff alleges that because Allen represented Anderson in a matter in filed in 2015, counsel “perpetuated a fraud upon the Court” by failing to provide an address where Anderson could be served.

         Counsel agrees that he represented Greg Anderson in William v. McGee, CA. No. 2:15-cv-21-FKB and filed an answer for him in November 2016. See Response [70] at 4. According to counsel, who represented multiple Forrest County employees in that matter, Anderson's employment with Forrest County subsequently ended after he filed an Answer on Anderson's behalf and Anderson did not provide the counsel with updated contact information.[4] As such, counsel was unable to waive service of process for Anderson in this matter, but provided the Court with his last known address. See [70].[5] After the omnibus hearing, the Marshal located and served Greg Anderson, at which time he associated Mr. Allen to represent him. See Response [70]; Order [56]; *SEALED* Summons [58] Returned Executed. The Court finds no “fraud on the court” or any other misconduct of any kind by Mr. Allen or his firm. The Motion [64] to Take Judicial Notice of Fraud Upon the Court is hereby DENIED.

         Motion [65] for Leave to Change Parties Names from John Does

         In Motion [65], Plaintiff requests that the Court substitute “Sky Johnson” in place of “Unknown Scott.” See Motion [65] at 5. He also requests that Forrest General be added as they are “in part or in whole, liable for the conduct/injury sustained by Plaintiff due to Defendant Sky Johnson's deliberate indifference and reckless disregard for Plaintiff's ...


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