Phelps v. Mimms et al

Filing 32

ORDER DIRECTING SERVICE of the United States Marshal Without Payment of Costs signed by Magistrate Judge Barbara A. McAuliffe on 12/12/2014. (Jessen, A)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8
9

TONY PHELPS, Sr.

10
11
12

Plaintiffs,
v.
OFFICER R. BYRD,

13

Defendant.

14

15
16
17

)
)
)
)
)
)
)
)
)
)
)
)

Case No. 1:14-cv-251-AWI-BAM

ORDER DIRECTING SERVICE OF THE
UNITED STATES MARSHAL WITHOUT
PAYMENT OF COSTS

The Court previously found service of the complaint appropriate. Accordingly, pursuant
to Federal Rule of Civil Procedure 4(c), it is HEREBY ORDERED that:

18

1.

For each defendant to be served, the Clerk of the Court is directed to forward the

19

following documents to the United States Marshals Service:

20

(a)

One completed and issued summons;

21

(b)

One completed USM-285 form;

22

(c)

A consent to Magistrate Judge jurisdiction form;

23

(d)

One copy of the Second Amended Complaint filed on August 25, 2014
(Doc. 16), plus an extra copy for the Marshals Service;

24
25
26

(e)

One copy of this Court’s order issued on October 2, 2014 (Doc. 21), plus
and extra copy of for the Marshal’s Service;

27
28

1

1

(f)

2

One copy of this Court’s order issued on November 18, 2014 (Doc. 28),
plus an extra copy for the Marshals Service;

3

(g)

One copy of this order, plus an extra copy for the Marshals Service.

4

2.

5

notify the following defendants of the commencement of this action and to request a

6

waiver of service in accordance with the provisions of Fed. R. Civ. P. 4(d) and 28 U.S.C.

7

§ 566(c):

Within ten days from the date of this order, the Marshals Service is directed to

8
9

Officer R. Byrd
3.

The Marshals Service shall file returned waivers of service as well as any requests

10

for waivers of service that are returned as undelivered as soon as they are received.

11

4.

12

of mailing the request for waiver, the Marshals Service shall:

If a waiver of service is not returned by a defendant within sixty days of the date

13

a.

14

pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. §

15

566(c), and shall command all necessary assistance from the Fresno Police

16

Department to execute this order. The Marshals Service shall maintain the

17

confidentiality of all information provided by the Fresno Police Department

18

pursuant to this order. In executing this order, the Marshals Service shall contact

19

the Legal Affairs Division of Fresno Police Department and to assist in

20

identifying and/or locating the defendant.

21

b.

22

shall file the return of service for the defendant, along with evidence of any

23

attempts to secure a waiver of service of process and of the costs subsequently

24

incurred in effecting service on said defendant. Said costs shall be enumerated on

25

the USM-285 form and shall include the costs incurred by the Marshals Service

26

for photocopying additional copies of the summons and complaint and for

Personally serve process and a copy of this order upon the defendant

Within ten days after personal service is effected, the Marshals Service

27
28

2

1

preparing new USM-285 forms, if required. Costs of service will be taxed against

2

the personally served defendant in accordance with the provisions of Fed. R. Civ.

3

P. 4(d)(2).

4

5.

5

Marshals Service. The filing of an answer or a responsive motion does not relieve

6

defendants of this requirement, and the failure to return the signed waivers may subject

7

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

8

6.

9

defendants are required to reply to the complaint. 42 U.S.C. § 1997e(g)(2).

If defendants waive service, they are required to return the signed waivers to the

In the event that defendants either waive service or are personally served,

10
11
12

IT IS SO ORDERED.
Dated:

/s/ Barbara

December 12, 2014

13

_

UNITED STATES MAGISTRATE JUDGE

14

15
16
17
18
19
20
21
22
23
24
25
26
27
28

A. McAuliffe

3