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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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 SHAWN ANDERSON, 10 11 12 13 14 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 15 16 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 17 rights action brought pursuant to 42 U.S.C. § 1983. The action proceeds against 18 Defendants Foster and Krpan on Plaintiff’s Eighth Amendment claims for inadequate 19 medical care. Defendant Krpan’s summons was returned unexecuted with a notation that 20 he does not work at Sierra Conservation Center. (ECF No. 34.) 21 The Court and the United States Marshal (“USM”) have a statutory duty to serve 22 process on Plaintiff’s behalf, and the response given to the Marshals Service to date by 23 the California Department of Corrections and Rehabilitation (“CDCR”) is insufficient to 24 allow the Court to discharge this duty on the ground that the defendant cannot be 25 located. 28 U.S.C. 1915(d); Fed. R. Civ. P. 4(c)(3). 26 The USM is directed to re-attempt service on Defendant Krpan at his address of 27 record with the Osteopathic Medical Board of California. The Clerk’s Office will be 28 1 directed to provide the address directly to the USM. If the Defendant is located and fails 2 to waive service, the cost of personal service will be taxed against him. If Defendant 3 again cannot be located, the USM is directed to contact the Legal Affairs Division of 4 CDCR to request the assistance of a special investigator. 5 Accordingly, pursuant to Federal Rule of Civil Procedure 4(c), it is HEREBY 6 ORDERED that: 7 1. The Clerk of the Court is directed to forward the following documents to 8 the USM: 9 a. One completed and issued summons for Defendant Krpan; 10 b. One completed USM-285 form for Defendant Krpan; 11 c. One copy of the First Amended Complaint filed on February 2, 2015, 12 plus an extra copy for the USM; and 13 d. 14 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 15 Defendant Krpan of the commencement of this action and to request a 16 waiver of service in accordance with the provisions of Fed. R. Civ. P. 17 4(d) and 28 U.S.C. § 566(c). 18 3. The USM shall file the returned waiver of service, or the request for 19 20 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 21 22 of the date of mailing the request for waiver, the USM shall: a. Personally serve process and a copy of this order upon the 23 defendant pursuant to Rule 4 of the Federal Rules of Civil 24 Procedure and 28 U.S.C. § 566(c), and shall command all 25 necessary assistance from CDCR to execute this order. The USM 26 shall maintain the confidentiality of all information provided by the 27 CDCR pursuant to this order. 28 2 1 b. Within ten days after personal service is effected, the USM shall 2 file the return of service for the defendant, along with evidence of 3 any attempts to secure a waiver of service of process and of the 4 costs 5 defendant. Said costs shall be enumerated on the USM-285 form 6 and shall include the costs incurred by the USM for photocopying 7 additional copies of the summons and complaint and for 8 preparing new USM-285 forms, if required. Costs of service will 9 be taxed against the personally served defendant in accordance 10 11 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 12 the Marshals Service. The filing of an answer or a responsive motion 13 does not relieve defendant of this requirement, and the failure to return 14 the signed waivers may subject defendant to an order to pay the costs 15 of service pursuant to Fed. R. Civ. P. 4(d)(2). 16 6. In the event that defendant either waives service or is personally served, 17 defendant is required to respond to the complaint. 42 U.S.C. 18 § 1997e(g)(2). 19 7. If Defendant Krpan again cannot be located, the USM shall, within ten 20 days, contact the Legal Affairs Division of CDCR and request the 21 assistance of a Special Investigator. 22 23 24 IT IS SO ORDERED. Dated: February 10, 2017 /s/ 25 Michael J. Seng UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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