Anderson v. Krpan et al

Filing 35

ORDER DIRECTING United States Marshals Service to Re-Attempt Service on Defendant Krpan without Prepayment of Costs; Clerk to Provide Defendant's Address to USM, signed by Magistrate Judge Michael J. Seng on 02/10/17. (10-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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SHAWN ANDERSON,

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Plaintiff,
v.
CHRIS KRPAN, et al.,
Defendants.

CASE No. 1:14-cv-01380-AWI-MJS
ORDER DIRECTING UNITED STATES
MARSHALS SERVICE TO RE-ATTEMPT
SERVICE ON DEFENDANT KRPAN
WITHOUT PREPAYMENT OF COSTS
CLERK TO PROVIDE DEFENDANT’S
ADDRESS TO USM

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against

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Defendants Foster and Krpan on Plaintiff’s Eighth Amendment claims for inadequate

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medical care. Defendant Krpan’s summons was returned unexecuted with a notation that

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he does not work at Sierra Conservation Center. (ECF No. 34.)

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The Court and the United States Marshal (“USM”) have a statutory duty to serve

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process on Plaintiff’s behalf, and the response given to the Marshals Service to date by

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the California Department of Corrections and Rehabilitation (“CDCR”) is insufficient to

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allow the Court to discharge this duty on the ground that the defendant cannot be

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located. 28 U.S.C. 1915(d); Fed. R. Civ. P. 4(c)(3).

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The USM is directed to re-attempt service on Defendant Krpan at his address of

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record with the Osteopathic Medical Board of California. The Clerk’s Office will be

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directed to provide the address directly to the USM. If the Defendant is located and fails

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to waive service, the cost of personal service will be taxed against him. If Defendant

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again cannot be located, the USM is directed to contact the Legal Affairs Division of

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CDCR to request the assistance of a special investigator.

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Accordingly, pursuant to Federal Rule of Civil Procedure 4(c), it is HEREBY

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ORDERED that:

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1.

The Clerk of the Court is directed to forward the following documents to

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the USM:

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a.

One completed and issued summons for Defendant Krpan;

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b.

One completed USM-285 form for Defendant Krpan;

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c.

One copy of the First Amended Complaint filed on February 2, 2015,

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plus an extra copy for the USM; and

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d.

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2.

One copy of this order, plus an extra copy for the USM.
Within ten days from the date of this order, the USM is directed to notify

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Defendant Krpan of the commencement of this action and to request a

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waiver of service in accordance with the provisions of Fed. R. Civ. P.

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4(d) and 28 U.S.C. § 566(c).

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3.

The USM shall file the returned waiver of service, or the request for

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waiver of service if returned as undelivered, as soon as it is received.
4.

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

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of the date of mailing the request for waiver, the USM shall:
a.

Personally serve process and a copy of this order upon the

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defendant pursuant to Rule 4 of the Federal Rules of Civil

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Procedure and 28 U.S.C. § 566(c), and shall command all

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necessary assistance from CDCR to execute this order. The USM

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shall maintain the confidentiality of all information provided by the

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CDCR pursuant to this order.

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b.

Within ten days after personal service is effected, the USM shall

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

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any attempts to secure a waiver of service of process and of the

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costs

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defendant. Said costs shall be enumerated on the USM-285 form

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and shall include the costs incurred by the USM for photocopying

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additional copies of the summons and complaint and for

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

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be taxed against the personally served defendant in accordance

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subsequently

incurred

in

effecting

service

on said

with the provisions of Fed. R. Civ. P. 4(d)(2).
5.

If defendant waives service, he is required to return the signed waiver to

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the Marshals Service. The filing of an answer or a responsive motion

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does not relieve defendant of this requirement, and the failure to return

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the signed waivers may subject defendant to an order to pay the costs

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of service pursuant to Fed. R. Civ. P. 4(d)(2).

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6.

In the event that defendant either waives service or is personally served,

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defendant is required to respond to the complaint. 42 U.S.C.

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§ 1997e(g)(2).

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7.

If Defendant Krpan again cannot be located, the USM shall, within ten

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days, contact the Legal Affairs Division of CDCR and request the

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assistance of a Special Investigator.

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IT IS SO ORDERED.
Dated:

February 10, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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