McGlothin v. Harrington et al

Filing 25

ORDER REQUIRING Plaintiff to Effectuate Service (FORTY-FIVE DAY DEADLINE) signed by Magistrate Judge Gerald B. Cohn on 8/22/11: The Court will give Plaintiff one final opportunity to effectuate service on Defendants Steen, Torres, Castro, and Jose. (Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10

MICHAEL JOHN MCGLOTHIN,

11
12
13

CASE NO.

Plaintiff,

ORDER REQUIRING PLAINTIFF
EFFECTUATE SERVICE

v.
M. GARCIA, et al.,

14

1:10-cv-00247-AWI-GBC (PC)
TO

FORTY-FIVE DAY DEADLINE
Defendants.
/

15
16

ORDER

17
18

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

19

this civil rights action pursuant to 42 U.S.C. § 1983. On June 21, 2011, the Court issued

20

an Order requiring that Plaintiff serve his Second Amended Complaint on Defendants

21

Steen, Torres, Castro, and Jose. (ECF No. 15.) Plaintiff was ordered to serve the

22

Complaint within 120 days pursuant to Federal Rule of Civil Procedure 4(m). (Id.) On

23

August 15, 2011, Plaintiff filed a “Certificate of Service”. (ECF No. 24.) In it, he states that

24
25

this filing should serve as the notice to the Clerk of the Court that Plaintiff did serve each

26

Defendant. (Id.) However, this is not the proper way to demonstrate that service was

27

effectuated.

1

Plaintiff appears to believe that by filing this Certificate, he has effectuated personal

2

service. This is not the case. Plaintiff’s proof of service does not comply with Rule 4. It

3

does not appear that Plaintiff requested a waiver of service or that Defendants agreed to

4
5

a waiver of service as no waivers of service have been filed with the Court. Also, it does

6

not appear that Plaintiff has attempted personal service as the proof of service filed is

7

improper.

8

Assuming Plaintiff is attempting personal service instead of requesting a waiver of

9

service, he must comply with Federal Rule of Civil Procedure 4, which was attached to the

10

Order instructing Plaintiff how to effectuate service. (ECF No. 15.) Plaintiff is reminded

11
12

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

13

the individual personally, which often requires hiring a process server. Fed. R. Civ. Pro.

14

4(e)(2)(A). After this is accomplished, proof of service must be made to the Court. If

15

Plaintiff hires a process server, proof must be provided by the server. Fed. R. Civ. Pro.

16

4(l)(1).

17

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

18
on Defendants Steen, Torres, Castro, and Jose. Service must be effectuated within forty19
20

five days of the date of this Order. If Plaintiff again fails to accomplish service, this action

21

will be dismissed.

22

IT IS SO ORDERED.

23
24
25
26
27

Dated:
1j0bbc

August 22, 2011
UNITED STATES MAGISTRATE JUDGE