Torres v. Gipson et al

Filing 22

ORDER DIRECTING United States Marshals Service to Re-Attempt Service on Defendant L. Williams Without Prepayment of Costs and to Contact CDCR for Assistance in Attempting to Execute Service, signed by Magistrate Judge Michael J. Seng on 9/5/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN MATIAS TORRES,

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Plaintiff,

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v.
CONNIE GIPSON, et al.,
Defendants.

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CASE No. 1:16-cv-01525-LJO-MJS
ORDER DIRECTING UNITED STATES
MARSHALS SERVICE TO RE-ATTEMPT
SERVICE ON DEFENDANT L. WILLIAMS
WITHOUT PREPAYMENT OF COSTS
AND TO CONTACT CDCR FOR
ASSISTANCE IN ATTEMPTING TO
EXECUTE SERVICE

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

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action brought pursuant to 42 U.S.C. § 1983. The action proceeds on Plaintiff’s first

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amended complaint against fourteen Defendants: Gipson, Clausell, Case, Mayo,

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Galaviz, Matta, L. Williams, Smith, Babineux-Prince, Henderson, Briggs, Villarial,

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Chavez, and Weaver. Service on Defendant Williams was returned unexecuted. (ECF

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No. 21.) In the remarks section of the USM-285, the Marshal wrote: “unable to locate

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subject L. Williams.”

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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. The response given by the Marshals Service is insufficient

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to 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 L. Williams by

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contacting the CDCR and requesting their assistance in locating Defendant. If the

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Defendant is located and he fails to waive service, the cost of personal service will

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be taxed against him.

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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 Williams;

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b.

One completed USM-285 form for Defendant Williams;

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c.

One copy of the First Amended Complaint filed on June 14, 2017,

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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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the following defendant of the commencement of this action and to

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request a waiver of service in accordance with the provisions of Fed. R.

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Civ. P. 4(d) and 28 U.S.C. § 566(c):

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L. Williams – Classification Staff Representative at the California

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Department of Corrections and Rehabilitation Office, 1515 S. S

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Street, Sacramento, CA 95811

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3.

Because the previous attempt at service was unsuccessful, the

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USM shall, upon receipt of this order and in execution of this order,

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contact a representative at the CDCR and request his or her

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assistance in effectuating service.
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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.
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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:

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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 CSP to execute this order. The USM

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shall maintain the confidentiality of all information provided by

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CSP 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 subsequently incurred in effecting service on said

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

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6.

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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7.

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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IT IS SO ORDERED.
Dated:

September 5, 2017

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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