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Banegas v. Hampton

April 27, 2009

MARIO BANEGAS, PLAINTIFF
v.
JOHN HAMPTON ET AL., DEFENDANTS



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Mario Banegas has moved to serve defendant John Hampton by alternate means pursuant to Pennsylvania Rule of Civil Procedure 430. Because his attempt to serve Hampton at the last known address was unsuccessful, Banegas seeks leave to serve by publication. For the reasons that follow, I will deny the motion.

I. Background

Mario Banegas, an inmate incarcerated at the Chester County Prison located in West Chester, Pennsylvania, was physically beaten in his cell by an inmate who was allowed in by two of the prison's corrections officers. These officers made no attempt to stop the assailant or otherwise aid Mr. Banegas and were charged with crimes for their actions.

Mr. Banegas was housed in the Restricted Housing Unit at Chester County Prison. (Compl.¶ 25.) John Hampton and Charles Goodman were corrections officers at the prison. (Id. ¶¶ 7--8.) Mr. Stephon Gilchrist is an inmate who was housed at the Chester Country Prison during the relevant time; he has since been relocated to another facility. (Id. ¶ 9.) Banegas and Gilchrist were both in the Restricted Housing Unit but housed in separate cells. (Id. ¶¶ 25, 28.)

At some prior time, Mr. Banegas had made statements criticizing Islam to Mr. Gilchrist who is a Muslim. (Id. ¶ 29.) Officers Hampton and Goodman knew that Mr. Banegas had made such statements and conspired with Gilchrist to attack Banegas. (Id. ¶ 30.)

On March 18, 2007, Hampton, Goodman, and Gilchrist put their plan into action. The officers asked a colleague to open the door to Mr. Banegas' cell. (Id. ¶ 30.) The officers then allowed Gilchrist to enter and attack Banegas. (Id. ¶ 31.) They made no attempt to restrain Gilchrist or otherwise protect Banegas. (Id.) Banegas lost consciousness and suffered a broken rib. (Id. ¶ 35.) He incurred approximately $3500 in medical costs. (Id. ¶ 38.)

On June 8, 2007, Officers Hampton and Goodman were criminally charged for their role in the attack and for making unsworn falsifications to investigating authorities.*fn1

(Id. ¶¶ 40--41.) On November 26, 2007, both officers pleaded guilty. (Id. ¶¶ 42--43.) Both are currently serving five year probation terms as part of their guilty pleas. (See Pl.'s Mot. for Extension of Time to Serve ¶ 10 (Document #11).)

Through his agent, Mr. Banegas unsuccessfully attempted to serve Mr. Hampton on January 7, 2009, at the address of 5726 Spruce Street, Philadelphia, Pennsylvania. (Pl.'s Mot. for Alternate Means of Service ¶ 1 (Document #12).) The service agent was told that Hampton had moved away and that his current address is unknown. (Id. ¶ 2.) No other service attempt appears to have been made.

On March 11, 2009, Mr. Banegas filed a motion requesting a court order directing the Chester County Adult Probation and Parole Department to provide any information it had on Mr. Hampton's whereabouts. (See Pl.'s Mot. for Extension of Time to Serve ¶ 13.) Shortly thereafter, Mr. Guy Donatelli, Esquire, counsel for defendants Warden Edward McFadden, the Chester County Prison Board, and the County of Chester, contacted the Probation and Parole Department and provided plaintiff's counsel with the address on record with the department. (Pl.'s Mot. for Alternate Means of Service ¶¶ 4--5.) This address turned out to be the same as the one used by the service agent on January 7, 2009. (Id. ¶ 6.)

Mr. Banegas moves to serve Mr. Hampton by publication, pursuant to Federal Rule of Civil Procedure 4(e)(1) and Pennsylvania Rule of Civil Procedure 430. He alleges that Mr. Hampton is evading service by "instructing other residents where he lives to deny that he lives at [that ] address," and that "further inquiry into Defendant Hampton's whereabouts will be futile because he is believed to be hiding out at the address provided by [Mr. Donatelli.]" (Id. ¶¶ 7, 10.) He proposes to make service by one-time publication in the official legal journal of the Philadelphia Court of Common Pleas and in a newspaper of general circulation in the Philadelphia. (Id. ¶ 12.)

II. Legal standard

Due process requires that service of process be reasonably calculated, under all circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Calabro v. Leiner, 464 F. Supp. 2d 470, 471 (E.D. Pa. 2006) (citing Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). According to Federal Rule of Civil Procedure 4(e), service may be effected pursuant to the law of the state in which the district court is located. Pennsylvania Rule of Civil Procedure 430(a) provides that if service cannot be made under the applicable rules, "the plaintiff may move the court for a special order directing the method of service." The rule requires that any such motion be accompanied by an affidavit "stating the nature and extent of the investigation which has been ...


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