Gregorio Funtanilla v. Williams et al
Filing
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ORDER Discharging Order to Show Cause 40 ; ORDER Denying Request for Service of Process by United States Marshal without Prejudice 41 , signed by Magistrate Judge Dennis L. Beck on 11/9/12. Plaintiff is granted sixty (60) days from the date of service of this order in which to complete service of process. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GREGORIO FUNTANILLA, JR.,
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Plaintiff,
Case No.1:10-cv-01624-DLB PC
ORDER DISCHARGING ORDER TO
SHOW CAUSE (ECF No. 40)
v.
ROMAN W. WILLIAMS, et al.,
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Defendants.
ORDER DENYING REQUEST FOR
SERVICE OF PROCESS BY UNITED
STATES MARSHAL WITHOUT
PREJUDICE (ECF No. 41)
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Plaintiff Gregorio Funtanilla, Jr. (“Plaintiff”) is a California state prisoner proceeding pro se
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in this civil action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff’s first
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amended complaint against Defendants Roman W. Williams, Jesuit S. Manson, K. Turner, D. Ibarra,
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O. A. Ybarra, M.A. Baires, J. Lias, R. Gomez, Nola Grannis, Angela Romanello, Kelly Santoro,
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Derral G. Adams, and Ken Clark for violation of the Free Exercise Clause of the First Amendment
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and the Religious Land Use and Institutionalized Persons Act of 2000. On March 22, 2012, Plaintiff
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was instructed of the requirements for service of process and directed to effect service on these
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thirteen Defendants within 120 days. ECF No. 24. On September 14, 2012, the Court issued an
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order to show cause regarding service of process on Defendants and prosecution of this action. ECF
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No. 40. On October 9, 2012, Plaintiff filed his response. ECF No. 41. Accordingly, the order to
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show cause is hereby DISCHARGED.
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One Defendant, Williams, was personally served by a fellow inmate on behalf of Plaintiff.1
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Plaintiff is required to prosecute this action against Defendant Williams. See Fed. R. Civ. P. 41(b) (failure to
prosecute may result in dismissal of action).
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Plaintiff attests that on May 31, 2012, he mailed the waiver of service, summons, complaint, and
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self-addressed stamped envelope to the other twelve Defendants and received no response. Plaintiff
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now requests service by the United States Marshal pursuant to Rule 4(c)(3) of the Federal Rules of
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Civil Procedure.
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“At the plaintiff's request, the court may order that service be made by a United States
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marshal or deputy marshal or by a person specially appointed by the court.” Fed. R. Civ. P. 4(c)(3).
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Here, the Court does not find that service be made by the United States Marshals Service at this
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time. Based on Plaintiff’s filings with the Court, it does not appear that Plaintiff sufficiently
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completed the Waiver of Service of Summons form. Plaintiff left several portions blank which may
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have affected service. Additionally, the United States Marshals Service is not the only means by
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which service of process may be accomplished. See Fed. R. Civ. P. 4(c)(2) (“Any person who is at
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least 18 years old and not a party may serve a summons and complaint.”). The Court will thus deny
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Plaintiff’s request for service by the United States Marshals Service, without prejudice. Plaintiff will
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be granted additional time to complete service of process.
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Based on the foregoing, it is HEREBY ORDERED that:
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1.
The order to show cause, issued September 14, 2012, is discharged;
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2.
Plaintiff’s request for service of process by the United States Marshals Service, filed
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October 9, 2012, is denied without prejudice;
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3.
Plaintiff is granted sixty (60) days from the date of service of this order in which to
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complete service of process. Failure to complete service may result in dismissal of
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the action against that Defendant without prejudice.
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IT IS SO ORDERED.
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Dated:
/s/ Dennis
November 9, 2012
L. Beck
UNITED STATES MAGISTRATE JUDGE
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DEAC_Signature-END:
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3b142a
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