Hernandez v. Federal Bureau of Prisons et al

Filing 25

ORDER signed by Magistrate Judge Barbara A. McAuliffe on 12/19/2016 directing Clerk to issue Summonses to Plaintiff and directing Plaintiff to complete re-service within 90-Days re 1 Complaint. (Case Management Deadline: 3/22/2017). (Attachments: # 1 Notice of Lawsuit and Request to Waive Service of Summons, # 2 Waiver of Service of Summons, # 3 Rule 4 of FRCP). (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOSE LOPEZ HERNANDEZ,

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Plaintiff,
v.
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.

Case No. 1:15-cv-00573-BAM (PC)
ORDER DIRECTING CLERK TO ISSUE
COMPLETED SUMMONSES TO PLAINTIFF
AND DIRECTING PLAINTIFF TO
COMPLETE RE-SERVICE WITHIN NINETY
(90) DAYS
NINETY (90) DAY DEADLINE

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Plaintiff Jose Lopez Hernandez (“Plaintiff”) is a former federal prisoner proceeding pro se

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in this civil rights action under Bivens v. Six Unknown Named Agents of Federal Bureau of

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Narcotics, 403 U.S. 388, 91 S.Ct. 1999 (1971). Plaintiff initiated this action on March 30, 2015,

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and the matter was transferred to this Court on April 15, 2015. (ECF Nos. 1, 7.)

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On July 18, 2016, the Court screened Plaintiff’s complaint under 28 U.S.C. § 1915A, and

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found that it stated cognizable claims against defendants H.A. Rios, Jr., Saragosh, and Estrada

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(“Defendants”) for the failure to protect him in violation of the Eighth Amendment, but did not

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state any other cognizable claims. Fed. R. Civ. P. 8(a); Ashcroft v. Iqbal, 556 U.S. 662, 678

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(2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). The Court ordered Plaintiff to

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file an amended complaint or notify the Court that he would proceed only on his cognizable

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claims. (ECF No. 18.) On August 15, 2016, Plaintiff notified the Court that he would proceed

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only on his cognizable claims. (ECF No. 19.)
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On August 18, 2016, the Court issued an order dismissing certain claims and defendants,

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finding service of the complaint appropriate, and directing Plaintiff to complete service within

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ninety (90) days from the date of service of that order. Plaintiff was not, and still is not,

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proceeding in forma pauperis, and was therefore responsible for serving Defendants in

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accordance with Rule 4 of the Federal Rules of Civil Procedure. The Court’s August 18, 2016

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order included instructions for Plaintiff to complete service of process. It also directed the Clerk

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of the Court to issue and send Plaintiff summonses and other necessary documents to complete

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service. (ECF No. 20.)

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On October 24, 2016, a notice of submission of summons as to each defendant was filed

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with the Court. (ECF No. 24.) Plaintiff sent the Court copies of the documents he served on the

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Defendants, including copies of the summons.1 Upon review of these documents, the Court

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discovered that Plaintiff had been mistakenly sent blank summonses. Accordingly, the Clerk of

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the Court will be directed to mail Plaintiff issued summonses to allow Plaintiff to re-serve the

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Defendants. Plaintiff will be given an additional ninety (90) days to complete re-service with the

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newly issued summonses. For Plaintiff’s convenience, the instructions for completing service of

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process from the August 18, 2016 order are reproduced below.

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Instructions on Completing Service of Process

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I.

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Plaintiff has the option of notifying Defendants of the commencement of this action and

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requesting that they waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to

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do this, he must mail each Defendant (1) the form entitled “Notice of Lawsuit and Request to

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Waive Service for Summons,” (2) two copies of the form entitled “Waiver of Service of

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Summons,” (3) a copy of the complaint; (4) a copy of this order; and (5) a stamped, self-

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addressed envelope for returning one copy of the signed waiver form to Plaintiff. The documents

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must be addressed directly to each Defendant (not the Attorney General’s Office or any other

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governmental entity), and the documents must be sent by first-class mail or other reliable means.

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Waiver of Service

However, as of the date of this order, Plaintiff has not filed the waivers of service that he served
on the Defendants.
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Id. The Waiver of Service of Summons form must set forth the date on which the request is sent

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and must allow each Defendant at least thirty (30) days to return the waiver to Plaintiff. If

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Defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with

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the Court. After filing the forms with the Court, Plaintiff does not need to do anything further to

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

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II.

Personal Service

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

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

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have personal service effected on Defendants. In either situation, the summons, a copy of the

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complaint, and a copy of this order must be personally served on each Defendant (not the

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Attorney General’s Office or any other governmental entity). Plaintiff may not effect personal

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

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

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

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personal service is effected. After personal service is effected on Defendants, Plaintiff must file

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proof of service with the Court. Fed. R. Civ. P. 4(l).

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Therefore, the Court HEREBY ORDERS as follows:

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1. The Clerk of the Court is directed to issue and send Plaintiff three (3) completed

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summonses, and one (1) copy of each of the following documents:

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a. Complaint filed March 20, 2015 (ECF No. 1);

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b. “Notice of Lawsuit and Request to Waive Service for Summons” form;

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c. “Waiver of Service” form; and

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d. Rule 4 of the Federal Rules of Civil Procedure;

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2. Plaintiff shall complete service of process on Defendants H.A. Rios, Jr., Saragosh, and

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Estrada within ninety (90) days from the date of service of this order; and

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//

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//

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//
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3. Unless good cause is shown, Plaintiff’s failure to timely complete service of

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process on the Defendants and to file proof of service with the Court will result in

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dismissal of this action. Fed. R. Civ. P. 4(m).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

December 19, 2016

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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