Tholmer v. Pliler, et al

Filing 104

ORDER signed by Magistrate Judge Craig M. Kellison on 2/6/09 ORDERING that the Clerk of the Court is directed to forward the instructions for service of process, the completed summons forms, copies of the third amended complaint, and a copy of this o rder and the courts Order re: Consent or Request for Reassignment to the United States Marshal; Within 10 days from the date of this order, the United States Marshal isdirected to notify defendant(s) of the commencement of this action and to request a waiver of service of summons. (cc USM Priority) (Dillon, M)

1 2 3 4 5 6 7 8 9 10 11 LIONELL THOLMER, 12 13 vs. Plaintiff, No. CIV S-04-1368 GEB CMK P IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

14 CHERYL K. PLILER, et al., 15 16 17 Defendants / Plaintiff, a state prisoner proceeding pro se, brings this civil rights action pursuant ORDER

18 to 42 U.S.C. § 1983. The court has authorized service of this action on defendants Pliler, Stratton, 19 Stiles, Morrow and Wilson, and directed plaintiff to provide documentation for service of process 20 by the United States Marshal. Plaintiff has submitted the required papers. 21 22 Accordingly, IT IS HEREBY ORDERED that: 1. The Clerk of the Court is directed to forward the instructions for service of

23 process, the completed summons form(s), copies of the third amended complaint, and a copy of 24 this order and the court's Order re: Consent or Request for Reassignment to the United States 25 Marshal; 26 2. Within ten days from the date of this order, the United States Marshal is 1

1 directed to notify defendant(s) of the commencement of this action and to request a waiver of 2 service of summons in accordance with the provisions of Federal Rule of Civil Procedure 4(d) and 3 28 U.S.C. § 566(c); 4 3. The United States Marshal is directed to retain the sealed summons and a

5 copy of the complaint in their file for future use; 6 4. The United States Marshal shall file returned waivers of service of

7 summons, as well as any requests for waivers that are returned as undelivered, as soon as they are 8 received; 9 5. If a waiver of service of summons is not returned by a defendant within

10 sixty days from the date of mailing the request for waiver, the United States Marshal shall: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 a. Personally serve process and a copy of this order upon the

defendant pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28 U.S.C. § 566(c), shall command all necessary assistance to execute this order, and shall maintain the confidentiality of all information provided pursuant to this order; b. Within ten days after personal service is effected, the United

States Marshal shall file the return of service for the defendant, along with evidence of any attempts to secure a waiver of service of summons and of the costs subsequently incurred in effecting service on said defendant; c. Costs incurred in effecting service shall be enumerated on

the USM-285 form and shall include the costs incurred by the Marshal's office for photocopying additional copies of the summons and amended complaint and for preparing new USM-285 forms, if required; and d. Costs of service will be taxed against the personally served

defendant in accordance with the provisions of Federal Rule of Civil Procedure 4(d)(2); 2

1

6.

Defendant(s) shall reply to the complaint within the time provided by the

2 applicable provisions of Federal Rule of Civil Procedure 12(a); 3 7. Unless otherwise ordered, all motions to dismiss, motions for summary

4 judgment, motions concerning discovery, motions pursuant to Rules 7, 11, 12, 15, 41, 55, 56, 59 5 and 60 of the Federal Rules of Civil Procedure, and motions shall be briefed pursuant to Local 6 Rule 78-230(m), and failure to oppose such a motion timely may be deemed a waiver of 7 opposition to the motion; opposition to all other motions need be filed only as directed by the 8 court; 9 8. If plaintiff is released from custody at any time during the pendency of this

10 case, any party may request application of other provisions of Local Rule 78-230 in lieu of Local 11 Rule 78-230(m), which will continue to govern all motions described in no. 7, above, in the 12 absence of a court order granting such a request; 13 9. Each party shall keep the court informed of a current address at all times

14 while the action is pending, and any change of address must be reported promptly to the court in a 15 separate document captioned for this case and entitled "Notice of Change of Address," which also 16 must be properly served on all other parties; and 17 10. The failure of any party to comply with this or any other court order, the

18 Federal Rules of Civil Procedure, or the local rules of this court may result in the imposition of 19 appropriate sanctions, including dismissal of the action or entry of default. 20 21 22 23 24 25 26 3 DATED: February 6, 2009 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE