Passineau v. Oxborrow et al

Filing 30

ORDER Requiring Defendants: Rodriguez, Oxborrow and Cantu to File Responses to the Marshal's Requests for Reimbursement of Costs of Service, Docs 25 , 26 and 27 ; ORDER for Clerk to Serve a Copy of this Order on the Marshals Service in Sacramento, signed by Magistrate Judge Gary S. Austin on 03/10/2014. (USM-Sacramento served electronicly)(20)Day Deadline (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRETT PASSINEAU,

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Plaintiff,

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vs.
W. OXBORROW, et al.,

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Defendants.

1:12-cv-01894-LJO-GSA-PC
ORDER REQUIRING DEFENDANTS
RODRIGUEZ, OXBORROW, AND
CANTU TO FILE RESPONSES
TO THE MARSHAL=S REQUESTS
FOR REIMBURSEMENT OF COSTS
OF SERVICE
(Docs. 25, 26, 27.)

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TWENTY DAY DEADLINE

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ORDER FOR CLERK TO SERVE A
COPY OF THIS ORDER ON THE
MARSHALS SERVICE

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I.

BACKGROUND

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Brett Passineau (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis

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in this civil rights action pursuant to 42 U.S.C. ' 1983. The case now proceeds on the original

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Complaint filed by Plaintiff on November 19, 2012, against defendants Correctional Officer

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(C/O) E. Cantu, C/O R. Rodriguez, and Sergeant (Sgt.) W. Oxborrow for use of excessive

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force, and against defendant C/O E. Cantu for failure to protect, in violation of the Eighth

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Amendment.1 (Doc. 1.)

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On November 21, 2013, the court dismissed all other claims and defendants from this action,
based on Plaintiff’s failure to state a claim under § 1983. (Doc. 15.)
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On October 17, 2013, the Court entered an order directing the United States Marshal

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("Marshal") to serve process upon the defendants in this action. (Doc. 14.) On December 24,

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2013, defendants Rodriguez, Oxborrow, and Cantu (“Defendants”) filed an Answer to the

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Complaint. (Doc. 16.) On February 7, 2014, the Marshal filed returns of service executed as to

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Defendants. (Docs. 22, 23, 24.)

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On February 7, 2014, the Marshal filed requests for court orders requiring each of the

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Defendants to reimburse the costs incurred by the Marshal for personal service (AMarshal=s

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Request@), pursuant to Rule 4(d)(2) of the Federal Rules of Civil Procedure. (Docs. 25, 26, 27.)

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None of the Defendants have filed an opposition.

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II.

DISCUSSION
Rule 4(d)(2) of the Federal Rules of Civil Procedure provides:

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If a defendant located within the United States fails, without good
cause, to sign and return a waiver requested by a plaintiff located
within the United States, the court must impose on the defendant:

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(A)

the expenses later incurred in making service; and

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(B)

the reasonable expenses, including attorney's fees, of any
motion required to collect those service expenses.

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Fed. R. Civ. P. 4(d)(2). The Court's order of October 17, 2013, which was served upon each of

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the Defendants at the time they were served with the Complaint, provides that "[t]he filing of

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an answer or a responsive pleading does not relieve defendants of [the] requirement [to return

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signed waivers to the Marshals Service], and the failure to return the signed waivers may

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subject defendants to an order to pay the costs of service pursuant to Fed. R. Civ. P. 4(d)(2)."

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(Doc. 14 &5.)

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The Marshal has requested the court to impose costs on each of the Defendants for their

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failure to avoid unnecessary costs. The Marshal's USM-285 forms filed on February 7, 2014

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indicate that waiver of service forms were mailed to defendants Rodriguez, Oxborrow, and

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Cantu on October 28, 2013, and no signed waivers were returned. (Docs. 22, 23, 24.) Personal

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service was executed upon Defendants on January 13, 2014, with costs of $84.79 for each of

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the three Defendants. Id.
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Given that the Marshal=s Requests were submitted in the form of memorandums and

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may not have been recognized as requests for the court to impose costs, Defendants shall be

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granted an opportunity at this time to file responses to the Marshal=s Requests.

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III.

CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Within twenty days from the date of service of this order, defendants

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Rodriguez, Oxborrow, and Cantu shall file written responses to the Marshal=s

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Requests of February 7, 2014;

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2.

Failure to comply with this order by any of the Defendants shall result in an

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order requiring the noncompliant Defendant(s) to reimburse the Marshal for

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costs of personal service; and

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3.

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The Clerk is DIRECTED to serve a copy of this order on the Marshals Service
in Sacramento.

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IT IS SO ORDERED.
Dated:

March 10, 2014

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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