Unpublished Disposition, 889 F.2d 1095 (9th Cir. 1987)
Annotate this CaseLouis Butler O'NEAL, Plaintiff-Appellant,v.R. ELLISON, Correctional Officer, Assignment Tower # 16,Defendant-Appellee.
No. 88-15402.
United States Court of Appeals, Ninth Circuit.
Submitted Oct. 23, 1989.* Decided Nov. 17, 1989.
Before ALARCON, O'SCANNLAIN and LEAVY, Circuit Judges.
MEMORANDUM**
OVERVIEW
Louis Butler O'Neal ("O'Neal") appeals the district court's dismissal of his 42 U.S.C. § 1983 action against R. Ellison. The district court dismissed the action because there was no record of an R. Ellison at the address provided by O'Neal, and O'Neal failed to provide the court with a current address for the purposes of service of process. We reverse and remand.
DISCUSSION
O'Neal alleges that R. Ellison, a correctional officer at Folsom State Prison, placed his life in danger by firing bullets at him during an alleged fight in the prison yard.1 A copy of a Rules Violation Report dated May 28, 1987, describing the incident was attached to the complaint as Exhibit A-1. "R. Ellison, Correctional Officer" is listed as the reporting employee. In this report, R. Ellison describes firing his gun at O'Neal in order to break up a fight. O'Neal claims he was disciplined as a result of this incident.
Listing Folsom State Prison as R. Ellison's address for the purposes of service of process, the United States Marshal Service twice attempted to serve Ellison with a summons and complaint. On the first attempt, the United States Marshal was informed by prison officials that Ellison was no longer employed at Folsom Prison. On the second attempt, they were informed that there was no record of an R. Ellison ever having worked at Folsom. This was confirmed in a declaration submitted by the supervising deputy attorney general, Cathy A. Neff.
The district court dismissed the action in part due to the prison officials' representation, confirmed by sworn declaration, that they had no record of an employee named Ellison. In light of the apparent conflict between Exhibit A-1 and the prison officials response regarding R. Ellison's status as a prison employee, the district court abused its discretion by dismissing O'Neal's action without first making a determination as to the accuracy of the prison officials' representations. The judgment dismissing the action is therefore reversed and the action is remanded.
REVERSED AND REMANDED.
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
O'Neal claims this incident constituted cruel and unusual punishment in violation of the eighth amendment
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