Hernandez v. Federal Bureau of Prisons et al

Filing 31

ORDER DISCHARGING Order to Show Cause and DIRECTING Plaintiff to Complete Service of Process within Sixty Days,signed by Magistrate Judge Barbara A. McAuliffe on 06/12/17. (60-Day Deadline) (Attachments: # 1 Rule 4 of FRCP)(Martin-Gill, S)

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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.

ORDER DISCHARGING ORDER TO SHOW
CAUSE, AND DIRECTING PLAINTIFF TO
COMPLETE SERVICE OF PROCESS
WITHIN SIXTY DAYS

FEDERAL BUREAU OF PRISONS, et al.,
(ECF No. 29)
Defendants.
SIXTY (60) DAY DEADLINE

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Case No. 1:15-cv-00573-BAM (PC)

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 Fed. Bureau of

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Narcotics, 403 U.S. 388 (1971). This action proceeds against Defendants H.A. Rios, Jr.;

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Saragosh; and Estrada (“Defendants”) for the failure to protect Plaintiff in violation of the Eighth

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Amendment. (ECF Nos. 18, 19.)

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On August 18, 2016, the Court issued an order finding service of the complaint

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appropriate, and directing Plaintiff to complete service of process on Defendants Rios, Saragosh,

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and Estrada within ninety (90) days from the date of service of that order. (ECF No. 20.) On

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October 24, 2016, Plaintiff filed with the Court a notice of submission of summons as to each

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Defendant. (ECF No. 24.) However, upon review of those documents, the Court discovered that

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Plaintiff had been mistakenly sent blank summonses. Accordingly, on December 19, 2016, the

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Court ordered the Clerk of the Court to mail Plaintiff issued summonses and gave Plaintiff ninety
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(90) days to complete re-service with the newly issued summonses. (ECF No. 25.)
Plaintiff failed to timely file with the Court proofs of service or signed waivers of service

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for any defendant. On May 1, 2017, the Court issued an order to show cause why this action

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should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m).

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(ECF No. 29.)

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On May 26, 2017, Plaintiff timely filed a response to the Court’s order to show cause.

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(ECF No. 30.) Plaintiff states that on March 6, 2017, his process server delivered to each

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defendant: a copy of the complaint filed March 20, 2015; “Notice of lawsuit and request to

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Waiver Service for Summons” form; Waiver of Service form; Rule 4 of the Federal Rules of

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Civil Procedure; Copy of the Court Order; and a stamped self-addressed envelope. Plaintiff

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attached returns of service and declarations by the process server, with tracking information,

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showing that a package addressed to each Defendant was delivered to P.O. Box 019001 at USP

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Atwater. (Id. at 3-13.) Plaintiff further states that Defendants have failed to return the Waiver of

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Service of Summons forms to him.

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Plaintiff must make proof of service to the Court. Fed. R. Civ. P. 4(l). This requires

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either that he file an executed Waiver of Service of Summons form, or proof of personal service,

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for each Defendant. Fed. R. Civ. P. 4(d)(4), (l)(1).

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As it appears Plaintiff’s process server mailed his packages to USP Atwater, he may wish

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to contact the Litigation Coordinator at that institution using the telephone number or email

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address given on the docket to determine whether his packages were received by any of the

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Defendants. According to the docket for this case, the Litigation Coordinator for USP Atwater

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can be reached at [phone] or atw/attorney~@bop.gov.

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As was previously explained to Plaintiff, if any Defendant fails to return the Waiver of

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Service of Summons form to him, he must have personal service effected on Defendants. (See

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ECF No. 25, p. 3.) The summons and a copy of the complaint must be personally served on each

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Defendant (not the Attorney General’s Office or any other governmental entity). Plaintiff may

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not effect personal service himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any

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person who is not a party to this action and who is at least eighteen years old. Id.
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Plaintiff is reminded that he should review Federal Rule of Civil Procedure 4(e), which

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addresses the different ways personal service may be effected. As noted above, after personal

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service is effected on Defendants, Plaintiff must file proofs of service with the Court. Fed. R.

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Civ. P. 4(l).

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Accordingly, the Court HEREBY ORDERS as follows:

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1. The Court’s May 1, 2017 order to show cause (ECF No. 29) is HEREBY

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DISCHARGED;
2. The Clerk of the Court is directed to send Plaintiff a copy of Rule 4 of the Federal

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Rules of Civil Procedure;
3. Plaintiff shall complete service of process on Defendants H.A. Rios, Jr; Saragosh; and

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Estrada within sixty (60) days from the date of service of this order; and
4. Unless good cause is shown, Plaintiff’s failure to timely complete service of

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

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

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IT IS SO ORDERED.
Dated:

/s/ Barbara

June 12, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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