Lear v. Manasrah

Filing 38

ORDER DIRECTING United States Marshals Service to Re-Attempt Service on Defendant CSP-COR signed by Magistrate Judge Michael J. Seng on 1/17/2018. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RODERICK WILLIAM LEAR,

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Plaintiff,
v.

CASE No. 1: 17-cv-00071-DAD-MJS (PC)
ORDER DIRECTING UNITED STATES
MARSHALS SERVICE TO RE-ATTEMPT
SERVICE ON DEFENDANT CSP-COR

A. MANASRAH, et al.,
Defendants.

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

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rights action brought pursuant to 42 U.S.C. § 1983. On September 19, 2017, the Court

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screened Plaintiff’s Second Amended Complaint (ECF No. 25) and found that it states a

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cognizable Eighth Amendment medical indifference claim against Dr. Mansour in his

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individual capacity and an ADA damages claim against Corcoran State Prison, California

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(“CSP-COR”), but no other cognizable claims. (ECF No. 30.)

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On November 27, 2017, the United States Marshals Service (“USM”) was directed

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to initiate service of process on Defendants Mansour and CSP-COR. (ECF No. 34.) The

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summons for CSP-COR was returned unexecuted. (ECF No. 37.)

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The Court and USM have a statutory duty to serve process on Plaintiff’s behalf.

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28 U.S.C. 1915(d); Fed. R. Civ. P. 4(d)(2). Any state-created governmental organization

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must be served by delivering a copy of the summons and complaint to the chief

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executive officer or in the manner prescribed by state law. Rule 4(j)(2)(a),(b). California

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state law provides that, “A summons may be served on a public entity by delivering a

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copy of the summons and of the complaint to the clerk, secretary, president, presiding

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officer, or other head of its governing body.” Cal. Code Civ. Proc. § 416.50 (a). In

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California, service of process in an action against a public agency “may be made in

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conformity with the information contained in the statement in the Roster of Public

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Agencies pertaining to that public agency which is on file at the time of such service.

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Service in this manner, if otherwise made in compliance with law, constitutes personal

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service upon the public agency.” Cal. Gov. Code § 960.8. The California Roster,

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maintained by the California Secretary of State, provides that the California Department

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of Corrections and Rehabilitation (“CDCR”) the executive agency overseeing CSP-COR,

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is located at 1515 S Street, Suite 502, Sacramento, CA 95814. The CDCR Secretary is

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Scott Kernan.

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Therefore, the Court will once again direct the Clerk of the Court to send the

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documents to the USM for service. In light of Defendant’s failure to respond at the

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institutional address provided by Plaintiff, the USM is directed to attempt to serve

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process on CSP-COR through Scott Kernan at the address of record for CDCR.

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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:
a.

One completed and issued summons for Defendant CSP-COR at

1515 S Street, Suite 502, Sacramento, CA 95814;
b.

One completed USM-285 form for Defendant CSP-COR at 1515 S

Street, Suite 502, Sacramento, CA 95814;

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c.

One copy of the Second Amended Complaint filed on June 08,

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2017, plus an extra copy for the USM; and

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d.

One copy of this order, plus an extra copy for the USM;

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2.

Within ten (10) days from the date of this order, the USM is directed to

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notify the above named Defendant of the commencement of this action

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and to request a waiver of service in accordance with the provisions of

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Fed. R. Civ. P. 4(d) and 28 U.S.C. § 566(c);

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3.

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The USM shall file the returned waiver of service, or the request for waiver
of service if returned as undelivered, as soon as it is received;

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If Defendant waives service, it is required to return the signed waiver to

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the Marshals Service. The filing of an answer or a responsive motion does

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not relieve Defendant of this requirement, and the failure to return the

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signed waivers may subject Defendant to an order to pay the costs of

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service pursuant to Fed. R. Civ. P. 4(d)(2);

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5.

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:

January 17, 2018

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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