Millner v. Dileo et al

Filing 12

ORDER DISMISSING Certain Claims and Defendants, Finding Service of Complaint Appropriate and DIRECTING Plaintiff to Complete Service within Ninety (90) Days, signed by Magistrate Judge Stanley A. Boone on 10/03/2017. (90-Day Deadline), Relevante ( Registered Nurse) and Respondent not named terminated. (Attachments: # 1 Notice of Lawsuit and Request to Waive Service for Summons, # 2 Waiver of Service, # 3 Rule 4 of the Federal Rules of Civil Procedure, # 4 Complaint, dated 04/11/17)(Martin-Gill, S)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 JAMES MILLNER, Case No. 1:17-cv-00507-SAB (PC) 7 ORDER DISMISSING CERTAIN CLAIMS AND DEFENDANTS, FINDING SERVICE OF COMPLAINT APPROPRIATE, AND DIRECTING PLAINTIFF TO COMPLETE SERVICE WITHIN NINETY (90) DAYS Plaintiff, 8 v. 9 DR. DILEO, et al., 10 (ECF Nos. 1, 11) Defendants. 11 NINETY (90) DAY DEADLINE 12 13 Plaintiff James Millner is a state prisoner appearing pro se in this civil rights action 14 pursuant to 42 U.S.C. § 1983. Plaintiff has consented to magistrate judge jurisdiction pursuant to 15 28 U.S.C. § 636(c). (ECF No. 6.) 16 On September 12, 2017, the Court screened Plaintiff’s complaint found it stated a claim 17 against Defendants Dileo, Ulit, Spaeth, and the Chief Medical Officer for deliberate indifference 18 in violation of the Eighth Amendment based on his wrist injury, but stated no other cognizable 19 claims. (ECF No. 8.) Plaintiff was ordered to either file an amended complaint or notify the 20 Court that he is willing to proceed on the claims found to be cognizable within thirty days. 21 On September 28, 2017, Plaintiff filed a notice stating that he wishes to proceed on the 22 claims found cognizable, and to dismiss the other claims and defendants. (ECF No. 11.) 23 Therefore, the other claims and defendants shall be dismissed. 24 Plaintiff is not proceeding in forma pauperis, and is therefore responsible for serving 25 Defendants in accordance with Rule 4 of the Federal Rules of Civil Procedure. Included with this 26 order are the appropriate service forms and a copy of Rule 4. Unless good cause for an extension 27 of time is shown, Plaintiff must complete service of process and file proof thereof with the Court 28 within ninety (90) days. Fed. R. Civ. P. 4(m). 1 The following two sections contain instructions on how to serve Defendants.1 1 Instructions on Completing Service of Process 2 3 I. Waiver of Service 4 Plaintiff has the option of notifying Defendants of the commencement of this action and 5 requesting that they waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to 6 do this, he must mail each Defendant (1) the form entitled “Notice of Lawsuit and Request to 7 Waive Service for Summons,” (2) two copies of the form entitled “Waiver of Service of 8 Summons,” (3) a copy of the complaint; (4) a copy of this order; and (5) a stamped, self9 addressed envelope for returning one copy of the signed waiver form to Plaintiff. The documents 10 must be addressed directly to each Defendant (not the Attorney General’s Office or any other 11 governmental entity), and the documents must be sent by first-class mail or other reliable means. 12 Id. The Waiver of Service of Summons form must set forth the date on which the request is sent 13 and must allow each Defendant at least thirty (30) days to return the waiver to Plaintiff. If 14 Defendants sign and return the waiver forms to Plaintiff, Plaintiff must then file the forms with 15 the Court. After filing the forms with the Court, Plaintiff does not need to do anything further to 16 serve Defendants. Fed. R. Civ. P. 4(d)(4). 17 II. Personal Service 18 If either (1) Plaintiff does not wish to request Defendants to waive service or (2) one or 19 more of the Defendants fail to return the Waiver of Service of Summons form to Plaintiff, 20 Plaintiff must have personal service effected on Defendants. In either situation, the summons, a 21 copy of the complaint, and a copy of this order must be personally served on each Defendant (not 22 the Attorney General’s Office or any other governmental entity). Plaintiff may not effect personal 23 service himself. Fed. R. Civ. P. 4(c)(2). Service may be effected by any person who is not a party 24 to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a 25 copy of Rule 4 along with this order. Plaintiff should review Rule 4(e), which addresses how 26 27 1 In Plaintiff’s notice, he makes a motion for the United States Marshal to be directed to serve Defendant 28 Dileo. The Court will issue a separate order addressing that request. 2 1 personal service is effected. After personal service is effected on Defendants, Plaintiff must file 2 proof of service with the Court. Fed. R. Civ. P. 4(l). 3 Accordingly, it is HEREBY ORDERED as follows: 4 1. This action shall proceed on Plaintiff’s complaint, filed on April 11, 2017, against 5 Defendants Dileo, Ulit, Spaeth, and the Chief Medical Officer, in their individual capacities, for 6 deliberate indifference in violation of the Eighth Amendment based on his wrist injury; 2. 7 All other claims, and Defendant Relevante, are dismissed based on Plaintiff’s 8 failure to state any claims upon which relief may be granted; 3. 9 The Clerk of the Court is directed to issue and send Plaintiff three (3) summonses, 10 and one copy of each of the following documents: 11 a) Complaint filed April 11, 2017 (ECF No. 1); 12 b) “Notice of Lawsuit and Request to Waive Service for Summons” form; 13 c) “Waiver of Service” form; and 14 d) Rule 4 of the Federal Rules of Civil Procedure; 4. 15 Plaintiff shall complete service of process on Defendants Ulit, Spaeth, and the 16 Chief Medical Officer within ninety (90) days from the date of service of this order; and 5. 17 Unless good cause is shown, Plaintiff’s failure to timely complete service of 18 the process on Defendants and to file proof thereof with the Court will result in dismissal of 19 this action. Fed. R. Civ. P. 4(m). 20 21 IT IS SO ORDERED. 22 Dated: October 3, 2017 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 3

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