Way v. 20 Unknown Employees of Federal Bureau of Prisons USP-Atwater, California

Filing 77

ORDER REQUIRING Plaintiff to Serve Complaint on Defendants Within One-Hundred Twenty Days, signed by Magistrate Judge Dennis L. Beck on 2/3/14. (Hellings, J)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 11 LONG WAY, 12 13 14 15 Plaintiff, vs. 20 UNKNOWN EMPLOYEES, Defendants. ) ) ) ) ) ) ) ) ) ) 1:12cv00357 AWI DLB PC ORDER REQUIRING PLAINTIFF TO SERVE COMPLAINT ON DEFENDANTS WITHIN ONE-HUNDRED TWENTY DAYS 16 17 Plaintiff Long Way (“Plaintiff”), a federal prisoner proceeding pro se, filed this civil 18 action on March 9, 2012, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau 19 of Narcotics, 403 U.S. 388 (1971), which provides a remedy for violation of civil rights by 20 federal actors. Plaintiff paid the filing fee and is therefore not proceeding in forma pauperis. 21 22 23 Plaintiff filed his Third Amended Complaint on August 5, 2013. On August 26, 2013, the Court ordered Plaintiff to serve his Third Amended Complaint within 120 days. Plaintiff has so far succeeded in serving eight Defendants. Those Defendants have 24 25 26 27 28 appeared in this action and have been granted an extension of time to file a responsive pleading. On January 16, 2014, Defendants provided additional information to assist in serving Defendants Tincher, Bautista, B. Herrera, J.E. Garcia, Aquitania, Aguirre, L. Taitano, Fields, Robinson, Gallegos, Shandor, Paniagua and Watkins. For these 13 Defendants, Defendants have 1 1 provided a full name and work address at which they can be served. For Defendants W. Gray, 2 Linsenmeyer, S. Jackson, Spencer and F. Silver, Defendants indicate that Bureau of Prisons 3 4 5 attorney Troy Dorrett will accept service on their behalf. As noted in the order vacating the subpoena, on January 21, 2014, summons was returned executed as to Defendant Watkins and she no longer needs to be served. 6 Plaintiff is not proceeding in forma pauperis and is not entitled to service by the United 7 8 9 10 States Marshall. Plaintiff is responsible for service, and he must serve these 17 Defendants in accordance with Rule 4(i) of the Federal Rules of Civil Procedure. Included with this order are the appropriate documents and a copy of Rule 4. Unless 11 good cause for an extension of time is shown, Plaintiff must complete service of process and file 12 proof thereof with the Court within one-hundred twenty days. Fed. R. Civ. P. 4(m). The 13 following sections contain instructions on how to serve Defendants. 14 A. 15 This is a Bivens action and therefore personal service is required. Daly–Murphy v. 16 17 18 Instructions on Completing Service Winston, 837 F.2d 348, 355 (9th Cir.1987) (“where money damages are sought through a Bivens claim, personal service, and not service through the place of employment, is necessary to obtain jurisdiction over a defendant in his capacity as an individual.”). 19 Therefore, the summons, a copy of the Third Amended Complaint, and a copy of this 20 order must be personally served on each Defendant in accordance with Federal Rule of Civil 21 22 23 Procedure 4(i). Rule 4(i) requires service on the individual Defendants, as well as the United States Attorney for the district where the action in pending and the United States Attorney. 24 Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c)(2). Service may be 25 effected by any person who is not a party to this action and who is at least eighteen years old. Id. 26 Plaintiff should review Rule 4(i), provided with this order, as it more fully addresses how 27 personal service is effected. 28 2 1 2 3 4 Defendants Tincher, Bautista, B. Herrera, J.E. Garcia, Aquitania, Aguirre, L. Taitano, Fields, Robinson, Gallegos, Shandor and Paniagua should be served at the addresses provided by Defendants. Plaintiff may serve Defendants W. Gray, Linsenmeyer, S. Jackson, Spencer and F. Silver by mailing service documents to Troy Dorrett at the address provided by Defendants. 5 B. Order 6 In accordance with the above, it is HEREBY ORDERED that: 7 1. 8 9 10 11 The Clerk of the Court shall issue and send Plaintiff 17 summonses, for Defendants Tincher, Bautista, B. Herrera, J.E. Garcia, Aquitania, Aguirre, L. Taitano, Fields, Robinson, Gallegos, Shandor, Paniagua, W. Gray, Linsenmeyer, S. Jackson, Spencer and F. Silver, and shall send Plaintiff one copy of the following documents: 12 a) Third Amended Complaint filed on August 5, 2013; and 13 b) A copy of Rule 4 of the Federal Rules of Civil Procedure.1 14 15 2. one-hundred twenty (120) days from the date of service of this order; and 16 17 18 Plaintiff shall complete service of process on the above-named Defendants within Unless good cause is shown, Plaintiff’s failure to complete service of process on 3. Defendants and to file proof thereof with the Court within one-hundred twenty days will result in dismissal of this action. 19 20 IT IS SO ORDERED. 21 Dated: 22 February 3, 2014 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE D C_Si gnat ue EN : EA r- D 23 3b142a 24 25 26 27 28 1 The Clerk need not send Plaintiff the “Notice of Lawsuit and Request for Waiver of Summons” because the United States and its employees are not subject to the waiver requirement. 3

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