Reed v. Williams, et al.

Filing 18

ORDER, signed by District Judge Mary H. Murguia on 2/21/2010. It is ORDERED: Plaintiff's motion to reopen is granted, doc.# 17 and entry of Judgment on January 5, 2010, doc.# 15, is vacated. The Clerk of Court must send to the U nited States Marshal: (a) a copy of the First Amended Complaint for each Defendant to be served, (b) a copy of the Court's November 6, 2009 13 Order for each Defendant to be served, (c) a completed and issued summons for each Defendant to be served, (d) a completed USM-285 for each Defendant to be served, and (e) a copy of this Order. (Scrivner, E)

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SC

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

George Reed, III, Plaintiff, vs. Captain Williams, et al., Defendants.

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No. CV 1-1:08-00910-MHM ORDER

In a November 6, 2009 Order (doc.# 13), the Court gave Plaintiff 30 days to complete and return to the Clerk of Court a Notice of Submission of Documents and submit with the Notice a copy of the First Amended Complaint, a copy of the Court's November 6, 2009 Order, a completed summons for each Defendant, and a completed USM-285 for each Defendant. Plaintiff was informed that the failure to timely submit those documents would result in the dismissal of this case. On January 5, 2010, this case was dismissed because Plaintiff had not submitted the documents. (Doc.# 15.) The next day, a notice of submission of documents was received from Plaintiff and filed. (Doc.# 16.) On January 26, 2010, Plaintiff filed a motion to re-open the case.1 (Doc.# 17.) The Court will grant Plaintiff's motion to reopen and order service documents forwarded to the U.S. Marshal for service.

In his motion, Plaintiff explains that he was hospitalized during part of December and legal mail was not forwarded to him by prison authorities. He further states that he lacked supplies with which to prepare a notice of submission.

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Accordingly, IT IS ORDERED: (1) Plaintiff's motion to reopen is granted, doc.# 17. and entry of Judgment on

January 5, 2010, doc.# 15, is vacated. (2) The Clerk of Court must send to the United States Marshal: (a) (b) (c) (d) (e) (3) a copy of the First Amended Complaint for each Defendant to be served, a copy of the Court's November 6, 2009 Order for each Defendant to be served, a completed and issued summons for each Defendant to be served, a completed USM-285 for each Defendant to be served, and a copy of this Order.

If Plaintiff does not either obtain a waiver of service of the summons or

complete service of the Summons and First Amended Complaint on a Defendant within 120 days of the filing of this Order, the action may be dismissed as to each Defendant not served. Fed. R. Civ. P. 4(m). (4) The United States Marshal must retain the Summonses, USM-285 forms, a

copy of the First Amended Complaint, a copy of the Court's December 3, 2009 Order, and a copy of this Order for future use. (5) Within 10 days of the date this Order is filed, the United States Marshal must

notify Defendants of the commencement of this action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal Rules of Civil Procedure. The notice to Defendants must include a copy of this Order and the Court's November 6, 2009 Order (doc.# 13). (6) The United States Marshal must immediately file requests for waivers that were

returned as undeliverable and waivers of service of the summons. ///

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(7)

If a waiver of service of summons is not returned by a Defendant within 60

days from the date the request for waiver was sent by the United States Marshal, the Marshal must: (a) personally serve copies of the Summons, the First Amended Complaint, the Court's November 6, 2009 Order, and this Order upon Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure, and shall command all necessary assistance from the California Department of Corrections and Rehabilitation (CDCR) to execute this Order. The United States Marshal must maintain the confidentiality of all information provided by the CDCR pursuant to this Order. (b) within 10 days after personal service is effected, file the return of service for Defendant, along with evidence of the attempt to secure a waiver of service of the summons and of the costs subsequently incurred in effecting service upon Defendant. The costs of service must be enumerated on the return of service form (USM-285) and must include the costs incurred by the Marshal for photocopying additional copies of the Summons, First Amended Complaint, the November 6, 2009 Order, or this Order and for preparing new process receipt and return forms (USM-285), if required. Costs of service will be taxed against the personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure, unless otherwise ordered by the Court. (8) A Defendant who agrees to waive service of the Summons and First

Amended Complaint must return the signed waiver forms to the United States Marshal, not the Plaintiff. (9) Defendants must answer the First Amended Complaint or otherwise respond

by appropriate motion within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Procedure. ///

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(10)

Any answer or response must state the specific Defendant by name on whose

behalf it is filed. The Court may strike any answer, response, or other motion or paper that does not identify the specific Defendant by name on whose behalf it is filed. DATED this 21st day of February, 2010.

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