Jercich v. California Department of Corrections and Rehabilitation et al

Filing 25

ORDER RE: Issuance of Service Documents signed by Magistrate Judge Erica P. Grosjean on 4/11/2018. (Attachments: # 1 Summons, # 2 Notice of Lawsuit and Request for Waiver, # 3 Waiver of Service of Summons, # 4 Consent Form, # 5 Rule 4)(Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 GEORGE SHELDON JERCICH, 10 Plaintiff, 11 v. Case No. 1:18-cv-00032-LJO-EPG ORDER RE: ISSUANCE OF SERVICE DOCUMENTS 12 13 14 CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, et al., Defendants. 15 George Sheldon Jercich (“Plaintiff”) commenced this action on January 5, 2018, by filing 16 17 a complaint and paying the required filing. (ECF No. 1). On January 16, 2018, the Clerk of the 18 Court issued summonses for defendants named in the complaint. (ECF Nos. 4-15). Plaintiff 19 lodged a Second Amended Complaint naming additional defendants on March 5, 2018, (ECF No. 20 21), which was filed on March 9, 2018, (ECF Nos. 22, 23). Plaintiff has not filed proof of service of the summonses upon any defendant.1 Plaintiff is 21 22 reminded that it is his responsibility to effect service of process on the defendants. 23 The Court will direct the Clerk of the Court to issue summonses for each of the following 24 additional defendants named in the Second Amended Complaint: Correctional Officer Zollinger, 25 1 26 27 28 On April 5, 2018, Plaintiff filed a notice to inform the Court that several of the summonses issued on January 16, 2018, are incorrect. (ECF No. 24). Plaintiff believes that the summonses should provide the titled of the defendants. For example, Plaintiff states that the summons for Defendant Ortega, should read, “Captain Ortega,” as opposed to “Ortega.” However, a summons need only “be directed to the defendant.” See Federal Rules of Civil Procedure 4(a)(1)(B). Thus, the summonses as issued are correct, and must be served within the time specified by Federal Rules of Civil Procedure 4(m). 1 1 North Kern State Prison; Nurse Nixon, California Correctional Institution, Tehachapi; Dr. Hill, 2 California Correctional Institution, Tehachapi; Bonnie Cimentel, California Correctional 3 Institution, Tehachapi; Appeals Coordinator, California Correctional Institution, Tehachapi; 4 Warden, California Correctional Institution, Tehachapi; and “The White ‘Shot-Caller,’ inmate 5 known to ‘Kory” at North Kern State Prison, Mainline (June 26, 2014)”. Plaintiff shall complete 6 service of process in accordance with Federal Rule of Civil Procedure 4 within ninety (90) days 7 from the date of service of this Order. Plaintiff shall serve a copy of this Order on each of the 8 additional defendants, in addition a summons and a copy of the Second Amended Complaint. 9 The following two sections contain instructions on how to serve the additional defendants. 10 I. 11 WAIVER OF SERVICE Under Federal Rule of Civil Procedure 4(d), Plaintiff may (but is not required to) notify 12 the defendants of the commencement of this action and request that they waive service of the 13 summons. If Plaintiff wishes to do this, he must mail the defendants: (1) the form entitled 14 “Notice of Lawsuit and Request for Waiver of Service for Summons”; (2) the form entitled 15 “Waiver of Service of Summons”; and (3) a copy of the second amended complaint. The 16 documents must be addressed directly to each the defendants and must be sent via first class 17 United States Mail. The Waiver of Service of Summons form must set forth the date on which 18 the request is sent and must allow the defendants at least thirty (30) days in which to return the 19 waiver to Plaintiff. If the defendants sign and return the waiver forms to Plaintiff, Plaintiff must 20 then file the forms with the Court. After filing the forms with the Court, Plaintiff need not take 21 any further steps to serve the defendants. Fed. R. Civ. P. 4(d)(4). 22 23 II. PERSONAL SERVICE If either: (1) Plaintiff does not wish to request that the defendants waive service; or (2) the 24 defendants fail to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have 25 personal service effected on the defendants. Each defendant must be personally served with a 26 summons and copy of the complaint, along with a copy of this Order. Plaintiff may not effect 27 personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not 28 a party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff 2 1 with a copy of Federal Rule of Civil Procedure 4. Plaintiff should review Rule 4(e)(2), which 2 addresses how personal service may be effected. 3 III. ORDER 4 In accordance with the above, IT IS HEREBY ORDERED that: 5 1. The Clerk of the Court is DIRECTED to send Plaintiff a summons for each of the seven (7) additional defendant named in this action; 6 7 2. The Clerk is further DIRECTED to send Plaintiff the following: 8 a) A copy of the Second Amended Complaint filed March 5, 2018, (ECF No. 23); 9 b) A copy of the form entitled “Notice of Lawsuit and Request for Waiver of Service of Summons” for each additional defendant named in this case; 10 c) A copy of the form entitled “Waiver of Service” for each additional defendant 11 named in this case; 12 d) A copy of the form entitled “Consent to Proceed Before United States Magistrate 13 Judge” with instructions; and, 14 e) A copy of Rule 4 of the Federal Rules of Civil Procedure; 15 16 3. Plaintiff shall complete service of process on each additional defendant within ninety (90) days from the date of service of this order. Plaintiff shall serve a copy of this 17 order and a copy of the form “Consent to Proceed Before United States Magistrate 18 Judge” on each additional defendant at the time of service of the summons and 19 complaint; and, 20 21 4. Plaintiff’s failure to timely complete service of the complaint on each additional defendant named may result in dismissal of this action. Fed. R. Civ. P. 4(m). 22 23 IT IS SO ORDERED. 24 25 Dated: April 11, 2018 /s/ UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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