Irvin v. Yates, et al.

Filing 56

ORDER Finding Service Of Fourth Amended Complaint Appropriate, And Forwarding Plaintiff The Necessary Service Of Process Forms (ECF Nos. 50 , 51 , 54 ), signed by Magistrate Judge Stanley A. Boone on 10/28/2014.(Case Management Deadline: 3/2/2015) (Fahrney, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KAJAUNA KENYATTA IRVIN,

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Plaintiff,

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v.
JAMES A YATES, et al.,

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Defendants.

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Case No.: 1:10-cv-01940-AWI-SAB (PC)
ORDER FINDING SERVICE OF FOURTH
AMENDED COMPLAINT APPROPRIATE, AND
FORWARDING PLAINTIFF THE NECESSARY
SERVICE OF PROCESS FORMS
[ECF Nos. 50, 51, 54]

Plaintiff Kajauna Kenyatta Irvin is appearing pro se in this civil rights action pursuant to 42

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U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). The case

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was removed from state court on October 14, 2010.

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On October 23, 2014, the Court determined this action shall proceed on Plaintiff’s Plaintiff’s

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First Amendment claim against Defendants Cate, Giurbino, Sobee, McGee, Allen, Bennett, Huckabay,

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Myers, McBride, Laniz, Yates, Trimble, Fisher, Brazelton, Nash, Shimmin, Davis, Walker, and Does

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1-25, a cognizable claim under RLUIPA against Defendants McGee, Allen, Bennett, Huckabay,

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Farkas, Guthery, and Does 1-25, and a cognizable equal protection claim against Defendant McGee.

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(ECF No. 54.) All other claims and defendants were dismissed from the action. (Id.)

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In a separate order, the Court has directed Defendants Yates, Allen, Bennett, Brazelton, Lantz,

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McBride, McGee, Myers, and Nash (who have already made an appearance in this action) to file a

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response to Plaintiff’s fourth amended complaint within thirty days.

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Plaintiff is not proceeding in forma pauperis and is therefore responsible for serving

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Defendants C. Sobee, J. Giurbino, A. Walker, M.C. Davis, A. Shimmin, R.H. Trimble, Matthew L.

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Cate, D. Huckabay, R. Fisher, Bonnie Farkas, and Ernest Guthery in accordance with Rule 4 of the

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Federal Rules of Civil Procedure. Included with this order are the appropriate service forms and a

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copy of Rule 4. Unless good cause for an extension of time is shown, Plaintiff must complete service

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of process and file proof thereof with the Court within one-hundred twenty days. Fed. R. Civ. P. 4(m).

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The following two sections contain instructions on how to serve Defendants.

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A.

Waiver of Service

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Plaintiff has the option of notifying Defendants of the commencement of this action and

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requesting that they waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to do

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

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Service for Summons,” (2) the form entitled “Waiver of Service of Summons,” (3) a copy of the third

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amended complaint, and (4) a copy of this order. The documents must be addressed directly to each

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Defendant (not the Attorney General’s Office or any other governmental entity), and the documents

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must be sent by first-class mail or other reliable means. Id. The Waiver of Service of Summons form

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must set forth the date on which the request is sent and must allow each Defendant at least thirty days

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to return 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 does not need

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to do anything further to serve Defendants. Fed. R. Civ. P. 4(d)(4).

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B.

Personal Service

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Plaintiff must effect personal service on any Defendants whom Plaintiff does not request to

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waive service and on any Defendants who are requested to waive service but fail to return the Waiver

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of Service of Summons form to Plaintiff. In either situation, the summons, a copy of the third

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amended complaint, and a copy of this order must be personally served on each Defendant (not the

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Attorney General’s Office or any other governmental entity). Plaintiff may not effect personal service
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himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any person who is not a party to this

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action and who is at least eighteen years old. Id. Plaintiff should review Rule 4(e), provided with this

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order, as it more fully addresses how personal service is affected.

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C.

Doe Defendants

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Plaintiff cannot initiate service of process on unknown defendants. Plaintiff will be given an

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opportunity through discovery to identify the unknown (Doe) defendants. Crowley v. Bannister, 734

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F.3d 967, 978 (9th Cir. 2013) (quoting Gillespie v. Civiletti, 629 E.2d 637, 642 (9th Cir. 1980)). Once

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the identity of a Doe defendant is ascertained, the Plaintiff must file a motion to amend his complaint

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only to identify the identified Doe defendant so that service by the United States Marshal can be

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attempted. Therefore, the court will send plaintiff the appropriate service documents at such time that

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Plaintiff ascertains the identities of the Doe defendants. However, if Plaintiff fails to identify any Doe

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defendant during the course of the discovery, any Doe Defendant will be dismissed from this action.

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IV.

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CONCLUSION AND ORDER

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Based on the foregoing,

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IT IS HEREBY ORDERED that:

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1.

The Clerk of Court shall issue and send Plaintiff eleven summonses, and shall send

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Plaintiff one copy of the following documents:

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a)

Fourth Amended Complaint filed March 27, 2014;

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b)

“Notice of Lawsuit and Request for Waiver of Service of Summons;”

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c)

“Waiver of Service;” and

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d)

Rule 4 of the Federal Rules of Civil Procedure;

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Plaintiff shall complete service of process on Defendants within one-hundred twenty
(120) days from the date of service of this order; and

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3.

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Unless good cause is shown, Plaintiff’s failure to complete service of process on

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Defendants and to file proof thereof with the Court within one-hundred twenty days

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will result in dismissal of this action.

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IT IS SO ORDERED.

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Dated:

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October 28, 2014
UNITED STATES MAGISTRATE JUDGE

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