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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE LOPEZ HERNANDEZ, 12 13 14 15 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 16 17 Case No. 1:15-cv-00573-BAM (PC) Plaintiff Jose Lopez Hernandez (“Plaintiff”) is a former federal prisoner proceeding pro se 18 in this civil rights action under Bivens v. Six Unknown Named Agents of Fed. Bureau of 19 Narcotics, 403 U.S. 388 (1971). This action proceeds against Defendants H.A. Rios, Jr.; 20 Saragosh; and Estrada (“Defendants”) for the failure to protect Plaintiff in violation of the Eighth 21 Amendment. (ECF Nos. 18, 19.) 22 On August 18, 2016, the Court issued an order finding service of the complaint 23 appropriate, and directing Plaintiff to complete service of process on Defendants Rios, Saragosh, 24 and Estrada within ninety (90) days from the date of service of that order. (ECF No. 20.) On 25 October 24, 2016, Plaintiff filed with the Court a notice of submission of summons as to each 26 Defendant. (ECF No. 24.) However, upon review of those documents, the Court discovered that 27 Plaintiff had been mistakenly sent blank summonses. Accordingly, on December 19, 2016, the 28 Court ordered the Clerk of the Court to mail Plaintiff issued summonses and gave Plaintiff ninety 1 1 2 (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 3 for any defendant. On May 1, 2017, the Court issued an order to show cause why this action 4 should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 4(m). 5 (ECF No. 29.) 6 On May 26, 2017, Plaintiff timely filed a response to the Court’s order to show cause. 7 (ECF No. 30.) Plaintiff states that on March 6, 2017, his process server delivered to each 8 defendant: a copy of the complaint filed March 20, 2015; “Notice of lawsuit and request to 9 Waiver Service for Summons” form; Waiver of Service form; Rule 4 of the Federal Rules of 10 Civil Procedure; Copy of the Court Order; and a stamped self-addressed envelope. Plaintiff 11 attached returns of service and declarations by the process server, with tracking information, 12 showing that a package addressed to each Defendant was delivered to P.O. Box 019001 at USP 13 Atwater. (Id. at 3-13.) Plaintiff further states that Defendants have failed to return the Waiver of 14 Service of Summons forms to him. 15 Plaintiff must make proof of service to the Court. Fed. R. Civ. P. 4(l). This requires 16 either that he file an executed Waiver of Service of Summons form, or proof of personal service, 17 for each Defendant. Fed. R. Civ. P. 4(d)(4), (l)(1). 18 As it appears Plaintiff’s process server mailed his packages to USP Atwater, he may wish 19 to contact the Litigation Coordinator at that institution using the telephone number or email 20 address given on the docket to determine whether his packages were received by any of the 21 Defendants. According to the docket for this case, the Litigation Coordinator for USP Atwater 22 can be reached at (209) 386-0257 or atw/attorney~@bop.gov. 23 As was previously explained to Plaintiff, if any Defendant fails to return the Waiver of 24 Service of Summons form to him, he must have personal service effected on Defendants. (See 25 ECF No. 25, p. 3.) The summons and a copy of the complaint must be personally served on each 26 Defendant (not the Attorney General’s Office or any other governmental entity). Plaintiff may 27 not effect personal service himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any 28 person who is not a party to this action and who is at least eighteen years old. Id. 2 1 Plaintiff is reminded that he should review Federal Rule of Civil Procedure 4(e), which 2 addresses the different ways personal service may be effected. As noted above, after personal 3 service is effected on Defendants, Plaintiff must file proofs of service with the Court. Fed. R. 4 Civ. P. 4(l). 5 Accordingly, the Court HEREBY ORDERS as follows: 6 1. The Court’s May 1, 2017 order to show cause (ECF No. 29) is HEREBY 7 8 DISCHARGED; 2. The Clerk of the Court is directed to send Plaintiff a copy of Rule 4 of the Federal 9 10 Rules of Civil Procedure; 3. Plaintiff shall complete service of process on Defendants H.A. Rios, Jr; Saragosh; and 11 12 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 13 process on the Defendants and to file proofs of service with the Court will result 14 in dismissal of this action. Fed. R. Civ. P. 4(m). 15 16 17 IT IS SO ORDERED. Dated: /s/ Barbara June 12, 2017 A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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