Cantu v. Garcia et al

Filing 27

ORDER GRANTING Plaintiff's 22 Request to Extend Time to Effectuate Service; Thirty Day Deadline signed by Magistrate Judge Gerald B. Cohn on 7/19/2011. Service Effectuated by 8/22/2011. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSHUA J. CANTU,

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Plaintiff,
v.

CASE NO.

1:09-cv-00177-GBC (PC)

ORDER GRANTING PLAINTIFF’S REQUEST
TO EXTEND TIME TO EFFECTUATE
SERVICE

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M. GARCIA, et al.,
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(ECF No. 22)
Defendants.
/ THIRTY DAY DEADLINE

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Plaintiff Joshua J. Cantu (“Plaintiff”) is a state prisoner proceeding pro se in this civil

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rights action pursuant to 42 U.S.C. § 1983. On November 29, 2010, the Court issued an

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Order requiring that Plaintiff serve his First Amended Complaint on Defendant M. Garcia.

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(ECF No. 14.) Plaintiff was ordered to serve the complaint within 120 days pursuant to

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Federal Rule of Civil Procedure 4(m). (Id.) Plaintiff moved for and was granted one 60-day

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extension of time to complete service. (ECF Nos. 18 & 19.) Plaintiff failed to effectuate

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service. On June 6, 2011, the Court issued an Order requiring that Plaintiff show cause
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why the case should not be dismissed for failure to effectuate service. (ECF No. 20.)
Plaintiff filed his response on June 29, 2011. (ECF No. 22.) In his response, Plaintiff

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states that he has attempted service by sending the summons to the Litigation Coordinator

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at Kern Valley State Prison and to the Warden requesting assistance. Plaintiff then states

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that he has effectuated personal service on Defendant Garcia on June 21, 2011. Plaintiff

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states that another inmate mailed the summons and accompanying documents to Garcia

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at KVSP, to the Department of Corrections and Rehabilitation, and to Legal Affairs

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Department of the Office of the Governor. Plaintiff then requests an additional thirty days

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to give Defendant Garcia adequate time to respond.

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Plaintiff appears to believe that by having another inmate mail the summons and
accompanying documents to Defendant Garcia, he has effectuated personal service. This

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is not the case. Personal service is not effectuated through the mail. Personal service

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requires that a copy of the summons and complaint be delivered to the individual

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personally, which often requires hiring a process server. Fed. R. Civ. Pro. 4(e)(2)(A). After

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this is accomplished, proof of service must be made to the Court. If Plaintiff hires a

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process server, proof must be provided by the server. Fed. R. Civ. Pro. 4(l)(1).

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To date, Plaintiff has failed to properly serve Defendant Garcia. The summonses

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filed by Plaintiff on June 24, 2011 and July 13, 2011 have not been executed. (ECF Nos.
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21, 23, 24, 25, & 26.) Furthermore, it is apparent from the record that Defendant Garcia
has not waived service.

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Accordingly, the Court will give Plaintiff one final opportunity to effectuate service

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on Defendant Garcia. Service must be effectuated within thirty days of the date of this

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Order. If Plaintiff again fails to do this, this action will be dismissed.
IT IS SO ORDERED.

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Dated:
1j0bbc

July 19, 2011
UNITED STATES MAGISTRATE JUDGE