McGlothin v. Harrington et al

Filing 15

ORDER Instructing Plaintiff of Service of Process and Requiring Plaintiff to Serve Defendants Steen, Torres, Castro, and Jose Within One-Hundred Twenty (120) Days, signed by Magistrate Judge Gerald B. Cohn on 6/20/2011. (Attachments: # 1 Notice of Lawsuit and Request for Waiver of Service of Summons, # 2 Waiver of Service, # 3 Rule 4 of the Federal Rules of Civil Procedure). (Jessen, A)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL JOHN McGLOTHIN,
Plaintiff,

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v.
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K. HARRINGTON, et al.,
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CASE NO. 1:10-cv-00247-GBC (PC)
ORDER INSTRUCTING PLAINTIFF OF
SERVICE OF PROCESS, AND REQUIRING
PLAINTIFF TO SERVE DEFENDANTS
STEEN, TORRES, CASTRO, AND JOSE
WITHIN ONE-HUNDRED TWENTY DAYS

Defendants.
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/ ONE-HUNDRED TWENTY DAY DEADLINE
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ORDER

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Plaintiff Michael John McGlothin (“Plaintiff”) is a state prisoner proceeding pro se in

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this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on February

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16, 2010 and consented to Magistrate Judge jurisdiction on March 4, 2010. (ECF Nos. 1

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& 5.) This case is proceeding on Plaintiff’s Second Amended Complaint. (ECF No. 13.)

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The Court found that Plaintiff’s complaint appears to state cognizable claims for relief

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against Defendants Steen, Torres, Castro, and Jose for violation of the Eighth Amendment.

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(ECF No. 14.)

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Plaintiff paid the filing fee in full for initiating this action. Because Plaintiff is not

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proceeding in forma pauperis, it is Plaintiff’s responsibility to effect service of the summons

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and complaint on Defendants Steen, Torres, Castro, and Jose. See Fed. R. Civ. P. 4.

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Plaintiff shall complete service of process in accordance with Federal Rule of Civil

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Procedure 4 within one-hundred twenty (120) days from the date of service of this Order.

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Plaintiff shall serve a copy of this Order on each Defendant together with a summons and
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a copy of the Second Amended Complaint. The following two sections contain instructions

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on how to serve Defendants.

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A.

Waiver of Service

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Pursuant to Rule 4(d)(1), Plaintiff may (but is not required to) notify Defendants

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Steen, Torres, Castro, and Jose of the commencement of this action and request that they

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waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to do this, he

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must mail each Defendant (1) the form entitled “Notice of Lawsuit and Request for Waiver

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of Service for Summons,” (2) the form entitled “Waiver of Service of Summons,” and (3)

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a copy of the complaint. The documents must be addressed directly to each Defendant

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(not the Attorney General’s Office) and must be dispatched (mailed) through first-class

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mail. The Waiver of Service of Summons form must set forth the date on which the

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request is sent and must allow each Defendant at least thirty (30) days in which to return

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the waiver to Plaintiff. If Defendants sign and return the waiver forms to Plaintiff, Plaintiff

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must then file the forms with the Court. After filing the forms with the Court, Plaintiff need

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not take any further steps to serve defendants. Fed. R. Civ. P. 4(d)(4).

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B.

Personal Service

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If either (1) Plaintiff does not wish to request Defendants to waive service or (2) one

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or more of the Defendants fail to return the Waiver of Service of Summons form to Plaintiff,

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Plaintiff must have personal service effected on Defendants. Each Defendant must be

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personally served with a summons and a copy of the Second Amended Complaint, along

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with a copy of this Order. Plaintiff may not effect personal service himself. Fed. R. Civ.

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P. 4(c). Service may be effected by any person who is not a party to this action and who

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is at least eighteen years old. Id. The Court will provide Plaintiff with a copy of Rule 4

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along with this Order. Plaintiff should review Rule 4(e), which addresses how personal

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service may be effected.

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C.

Conclusion

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In accordance with the above, IT IS HEREBY ORDERED that:

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1.

The Clerk of the Court is directed to issue and send Plaintiff four (4)
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summonses;

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2.

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The Clerk is further directed to send Plaintiff:
a)

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One (1) copy of the form entitled “Notice of Lawsuit and Request for
Waiver of Service of Summons;”

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b)

One (1) copy of the form entitled “Waiver of Service;”

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c)

One (1) copy of the form entitled “Consent to Proceed Before United
States Magistrate Judge” with instructions; and

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d)

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3.

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One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;

Plaintiff shall serve a copy of this Order and a copy of the form “Consent to

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Proceed Before United States Magistrate Judge on Defendants at the time

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of service of the summons and Second Amended Complaint;
4.

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Plaintiff shall complete service of process on Defendants Steen, Torres,

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Castro, and Jose within one-hundred twenty (120) days from the date of

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service of this Order; and
5.

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Plaintiff’s failure to timely complete service of the complaint on Defendants

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Steen, Torres, Castro, and Jose may result in dismissal of this action against

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them. Fed. R. Civ. P. 4(m).

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IT IS SO ORDERED.

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Dated:
1j0bbc

June 20, 2011
UNITED STATES MAGISTRATE JUDGE

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