Fosselman v. Cate et al

Filing 24

ORDER Regarding Service of Process on Defendants Johnson and Dimmer signed by Magistrate Judge Stanley A. Boone on 1/20/2015. (Attachments: # 1 Notice of Lawsuit and Request, # 2 Waiver of Service, # 3 Rule 4)(Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

LORENZO FOSSELMAN, JR.

12

Plaintiff,

13

v.

14

MATTHEW CATE, et al.,

15

Defendants.

16

Plaintiff Lorenzo Fosselman, Jr. is appearing pro se in this civil rights action pursuant to 42

17
18

U.S.C. § 1983.
On August 1, 2012, Defendants Cate and Heberle removed this action from the Sacramento

19
20

) Case No.: 1:12-cv-01302-AWI-SAB (PC)
)
)
) ORDER REGARDING SERVICE OF PROCESS
ON DEFENDANTS JOHNSON AND DIMMER
)
)
)
)
)
)

County Superior Court.
On January 16, 2015, the Court ruled that this action shall proceed on Plaintiff’s Eighth

21
22

Amendment claim against Defendant Johnson and First Amendment retaliation claim against

23

Defendant Dimmer, and all other claims and defendants were dismissed from the action with

24

prejudice. (ECF No. 23.) In the paragraphs that follow, the Court will provide Plaintiff with

25

instructions to initiate service of process on Defendants Johnson and Dimmer, as they have not yet

26

been served or made an appearance in this action.

27

///

28

///
1

1

I.

2

DISCUSSION

3

A.

Order Directing Plaintiff to Initiate Service of Process

4

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

5

Defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Included with this

6

order are the appropriate service forms and a copy of Rule 4. Unless good cause for an extension of

7

time is shown, Plaintiff must complete service of process and file proof thereof with the Court within

8

one-hundred twenty days. Fed. R. Civ. P. 4(m). The following two sections contain instructions on

9

how to serve Defendants.

10

B.

Instructions on Completing Service

11

1.

Waiver of Service

12

Pursuant to Rule 4(d)(1), Plaintiff may, but is not required to, notify each Defendant of the

13

commencement of this action and request that they waive service of the summons. Fed. R. Civ. P.

14

4(d)(1). If Plaintiff wishes to do this, he must mail each Defendant (1) the form entitled “Notice of

15

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

16

Summons,” and (3) a copy of the First Amended Complaint. The documents must be addressed

17

directly to each Defendant (not the Attorney General’s Office) and must be dispatched (mailed)

18

through first-class mail. The Waiver of Service of Summons form must set forth the date on which the

19

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

20

Plaintiff. If Defendant signs and returns the waiver forms to Plaintiff, Plaintiff must then file the

21

forms with the Court. After filing the forms with the Court, Plaintiff need not take any further steps to

22

serve Defendants. Fed. R. Civ. P. 4(d)(4).

23

2.

Personal Service

24

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

25

Defendants fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must

26

have personal service effected on Defendants. Defendants must be personally served with a summons

27

and a copy of the First Amended Complaint, along with a copy of this order. Plaintiff may not effect

28

personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a
2

1

party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a

2

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

3

service may be effected.

4

II.

5

ORDER

6

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

7

1.

The Clerk of the Court is directed to issue and send Plaintiff two (2)
summonses;

8
2.

9

The Clerk is further directed to send Plaintiff:

10

a)

One copy of the First Amended Complaint filed November 18, 2013;

11

b)

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

12
13

c)

One copy of the form entitled “Waiver of Service;”

14

d)

One copy of Rule 4 of the Federal Rules of Civil Procedure;

3.

15

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

16
4.

17

Plaintiff’s failure to timely complete service of the First Amended Complaint on
Defendants will result in dismissal of this action.

18
19
20
21
22
23
24
25

IT IS SO ORDERED.
Dated:

January 20, 2015
UNITED STATES MAGISTRATE JUDGE

26
27
28
3